Reforming the Patent System for the Post-Industrial Economy

Abstract

The grant of a patent depends on the technical merit and social worth of an invention under a quid pro quo arrangement where the patentee compensates society by publicly disclosing a clear description of the invention in a written document and explicitly claims those intellectual property aspects of the invention he believes are his under the patent act. By law, this description should be such that those skilled in the relevant arts can replicate the invention without undue experimentation or intellectual exertion either after acquiring a license from the patentee to do so during the life of the patent or without any license thereafter. In practice, the document is seldom written for full comprehension by relevant technical experts (a judicially ignored violation of the patent act) but for lawyers who, in patent litigation, must present their client’s case to generalist judges ignorant of the technical arts that support the patent. The arguments thus deviate from the “substance of what the patentee invented and how significant that invention really is” to “the scope of legal rights not by reference to the invention but by reference to semantic debates over the meaning of words chosen by lawyers”. To obviate these anomalies we suggest certain remedies that would enable the workload related to patent drafting, grant, validation, and infringement to be equitably shared among the patentee, the patent office, the judiciary, and the proposed Patent Validation Board.