Sunday, August 28, 2005

Should the USPTO save investors from bad decisions?

An article (U.S. PATENT REFORM AND THE FUTURE OF NANOTECHNOLOGY) by Steven R. Ludwig, et al. in Legal Backgrounder (Vol. 20, No. 37; Aug. 12, 2005) suggests that one function of the USPTO is to protect investors: "Poor patents may induce unwarranted investment in product development."

This is not unrelated to arguments made in Bob Park's WN concerning the BlackLight patent. If, as Park suggests, the patent on the hydrino concerns non-existent scientific pathways, then there is zero probability that anyone could infringe the claims. To date, no one has been accused of infringement. However, Park's concern is that the imprimatur of a patent on illusory technology could be used to dupe investors. This sounds like the "unwarranted investment" of Ludwig.

Although the USPTO certainly should not be granting patent claims on non-enabled technologies, the primary responsibility for evaluating technology, at least in a free market economy, should be on the entrepreneur, not on the government.

Similar thoughts apply to arguments that the USPTO should evaluate the innovative potential of inventions. The job of the USPTO is to obtain disclosure of inventions which meet the requirements of the patent law (e.g., useful, novel, non-obvious, enabled) in return for a limited period of right to exclude. Making the invention commercially successful is the job of the businessman, not the government. Some of the arguments involved in the patent reform debate are for a greater role of government in economic decisions. These arguments should be firmly rejected. Other arguments are for the US to be more like Europe or Japan in the way patents are granted. Maybe a review of which patent system has produced the greatest technological change in the last hundred years ought to be undertaken. Emulating Europe will not soon become an ad campaign like "Be like Mike."

Recall the saga of powered flight. Langley got big dollars from the government to work on an idea that ultimately proved worthless. The Wright Brothers got no money from the government. The Wrights' idea worked. Ironically, Curtiss et al. tried to resurrect the Langley work as "prior art" to defeat the Wright Brothers' patent, although adding features not present in the Langley work. Curtiss failed.

Other text from the Ludwig article:

The future is bright for nanotechnology. The effects that patent
reform will have on nanotech companies will differ significantly depending
upon the size and business strategy of the company. However, ultimately, it is
difficult to argue that patent reform seeking to improve patent quality and
decrease litigation costs should not be enacted.

In comment, the first effort at "reform" should be to give the USPTO enough resources to do its job. Fee diversion, created by the same Congress now seeking reform, must end immediately. Once the USPTO is adequately funded, one should see if there is a patent "quality" problem. Adding another level of product inspection, in the form of opposition, is premature when insufficent resources have been allocated to perform examination in the first place.

Further, in light of the inaccuracy of many of the investor reports on nanotechnology (note especially those on fullerenes), written by people getting far more money than examiners at the PTO, why do commentators like Ludwig hold PTO people up to one standard, but implicitly assume that investors are smart enough to wade through the morass of so-called research reports on nanotechnology? Poorly researched business articles may induce unwarranted investment in product development. If one wants to hold the PTO to a high standard, give the PTO enough money to do the job.


Post a Comment

<< Home