As we explained a few posts back, today's patents consist of a specification that is supposed to describe and enable the practice of a novel and useful method or apparatus, and a set of claims that is supposed to describe what the inventors own in return for their disclosure. The claims are supposed to be clearly described in the specification, and define the precise boundaries of what is owned, so that a person practicing the art can read the claims and avoid infringement if they so choose. But in practice, claims are interpreted by judges with no knowledge of a field, aided by attorneys with large incentives for distortion and experts paid to serve the interests of their clients. As we previously noted, even legal experts admit that no one knows what claims mean until litigation occurs. Naturally, the existing system is very useful for attorneys, since obscurity and confusion are the servants of litigation -- but it is harmful for everyone else. And that leaves aside the fundamental question of whether it is possible to construct unambiguous boundaries in the very-high-dimensional space of concepts and ideas.
So let's abandon this silly system and try something different. We proceed by starting from the purpose of the patent system as stated in the US constitution: to promote the progress of science and the useful arts. Progress is promoted by change and exploration. People learn by copying, but must make changes to progress. So let's make our basic principle: no exact copies. If I make something new, I can prevent you from just tearing apart my version and doing exactly the same thing. (And the newer my thing is, the more credit I ought to get.) But unlike the current system, I can not prevent you from improving upon my new object to make yours - that's progress, and we're supposed to promote it. So how do we tell the difference?
To accomplish this end I'm going to play a mathematician's trick: I'll assert the existence of something useful without having it in hand just yet. Let's imagine we have found a way of defining a distance between ideas. (In a future post we'll look at a possible approach to making such a measurement, but be warned this is the hard part, and care must be taken to avoid being back where we started, with terms that don't have a useful meaning.) If we have this handy tool, we can then make a patent system that actually works. Here's how:
A patent applicant writes a specification that describes what they have built. But instead of appending claims, they cite the closest previous work they know of - the closest prior art - and then propose a measure of the distance between what they have done and what the prior art did. This distance is a number, not someone's obscure arguments about what is substantial and what is not.
The examiner either agrees, or cites prior art that s/he believes is closer to the applicant's work, using the same distance measure. Once the applicant and the examiner agree, the patent is granted.
The applicant then owns everything that is closer to their specification than the nearest prior art, with the following exception: To litigate, the applicant needs to show that they can actually implement their invention, and that the implementation is closer to their specification than the prior art was. If you have to move farther away from the disclosure than the disclosure was from the prior art to make the invention work, the invention was not enabled. The patent is declared invalid.
Defendents in litigation can narrow the scope of the patent by finding prior art that was closer than what the applicant and examiner found. An accused method or device that is found to be farther from the specification than the specification was from the prior art is not infringing, even if it contains everything in the specification. I can't just copy your stuff, but I can improve it by more than you had improved what already existed. Progress is promoted, not discouraged.
The claimless approach to patenting fundamentally changes the incentives provided by the system. Instead of filing when you don't know how to do something, you need to file when you do to have your patent be found valid. Non-practicing entities are intrinsically excluded: if you can't make it you can't patent it. The more new stuff you disclose, the more you own. The impact of most patents will quickly fade as a field progresses; only really revolutionary disclosures, with huge distinctions from the prior art, will retain value for the full formal term of the patent.
Most importantly, the claimless patent system abandons the false proposition that ideas exist in a linear progression, and ownership ought to be assigned to the first one. Invention is a net, not a chain. We hold each other up; we should own the strands we weave and not the ones we don't.
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In the next posts we'll discuss a few details of implementation, and then take on the hard part of proposing a distance measure that can be at least reasonably unambiguous in the very complicated space of ideas. As my boss in the real world likes to say: go big or go home.