Patents: An Imperfect System
The system is arbitrary, but it works. And it is unlikely to change.
Some technologies just are not suitable for patents.
The patent system is a clunky, one-size-fits-all system. It does not work for every invention or every industry, but the patent system as we know it has existed for over two centuries and industry has adapted.
I met an inventor who had an invention for an underground mine. He had a way of designing the mine so that it could provide huge amounts of cooled air for above-ground buildings.
The problem with the mine invention was not the innovation, but the time line.
The permitting process of a mine is often 20 years or more. Once digging starts, mines can be active for 50 or even 100 years.
The problem is that the lifespan of a patent is only 20 years.
By the time the new mine concept is proven in the marketplace and someone else decides to copy it, at least 20 and maybe even 40 years will have passed. The competitor will then start their 20 year permitting cycle.
Regardless if this invention is patent-worthy, the patent system – because of its arbitrary nature – does not help this type of business.
On the other end of the spectrum are toys. Toys typically last for two or three seasons then fizzle out. The patent system is just too slow to respond, since the patent will issue long after the product has fallen out of favor, and the competitors are far too short-lived to enforce against them.
These Are the Facts Of Life
These are just the facts of life. Patents are an artificial construct of property rights, and the rules are essentially arbitrary. If the laws were changed such that patents had a 50 year lifespan or a 5 year lifespan, the economies around IP would be different.
But the fact remains that IP law, in the form of the Paris Convention for the Protection of Intellectual Property, was signed in 1883. The Paris Convention is signed by 177 countries and is the basis for the Patent Cooperation Treaty, which came to life in the 1970’s. The Patent Cooperation Treaty (PCT) has unified the entire world with 190+ countries participating. The PCT required the participating countries to have more or less similar patent laws, including the 20 year life span.
This is the world of patents. It is not changing any time soon.
This reality means two things: what works in the patent system will likely work for a long time in the future, since the basic structure of the system is world-wide and unlikely to change. The corollary is that what does not work is unlikely to get fixed.
Your business strategy needs to take this into account. If you happen to have a technology that is not easily patented, then you need to know that patents will not play a role in the business. When patents are available, you can build them into your set of tools.
I am not advocating that we change the system. There are parts of the system that work well and parts that do not, and I wish some things were different. However, we need to figure out how to live in this “imperfect” world.
The truth is that the patent system is actually pretty good, but like everything in life, it has some quirks and nuances that might not make sense at first glance. Most of the problems with the patent system happen because people want it to be something (“protection”) when it is not nearly that simple. Just having a patent does not mean you have protection. It just means you have a patent.
The more things change, the more they stay the same.
Yes, the patent system does morph and change. Case law evolves, congress passes legislation, and regimes change in Washington. There are ebbs and flows to the nuances of patent drafting, patent enforcement, damages calculations, and on and on. Advocates on different sides push one way or another.
The patent system has immense inertia to remain as it is. Not only are patent rights enshrined in the Constitution, they are codified into the Paris Convention of 1883 and the Patent Cooperation Treaty with 190 countries. I would cautiously state that I know of no other legal construct in human history that has such world wide acceptance, such long term standardization, and is such a part of the fabric of business.
My goal is to optimize this system where it fits the situation, but not to try to force the proverbial round peg into the square hole when it does not fit. The patent system is a one-size-fits-all system, and that is an inherent set of constraints that we cannot change.