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The Forum > Article Comments > Don’t feed the 'patent trolls' > Comments

Don’t feed the 'patent trolls' : Comments

By Matthew Rimmer, published 11/6/2008

Despite its encouragement for long-term policy thinking in the recent 2020 Summit, the new Labor Government has not revealed its law reform priorities regarding intellectual property.

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As I understand it Patents are to reward/encourage the “inventor” for their effort and to allow them to recoup development costs through a potential period of protected profit.
It seems to me that Patent law suffers from the principal of “one size fits no one” and the restrictive nature of current patent system namely its exclusivity therefore exclusionary effect which is not always in the public’s best interests. Assuming that is the public interest must take preference over profit. This does not exclude profit only public welfare should not be at the mercy of a corporate strategic marketing department acting as gate keeper.
I therefore wonder if the law aught not be a tiered one with different criteria and benefits for the different types of invention .eg. One of groupings could be “(Medical) Public Benefit (MPB)”. This classification could be for drugs and associated technologies.
This category of inventions should then give their‘inventors’ benefits through the tax savings on the product (brand name) rather than absolute exclusitivity. This would give a price advantage to the inventor over any clones for the Patent Life of the product thus maintaining competitive motivation.
To reduce the “Me too” (product + new [?] compounds), patents designed to extend the life of the patent with out any real benefit to the patient. The new product would get a patent tax break for added components. Therefore it is possible fort the old product go open losing its financial competitive edge while gaining a benefit for the addition only. This would open the components up to other companies’ development that could then market their own product + extras and receive tax breaks for just the additions naturally the extras must be able to show uniqueness tests etc to justify patent benefits.
This system would give the inventor benefits while reducing the "gatekeeper effect" of maximizing profit while potentially disadvantaging the Public Health.
Posted by examinator, Wednesday, 11 June 2008 6:31:54 PM
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Patents were once a good idea well implemented. Perhaps one day they will be again, but right now they are a mess. How they ended up in this mess is an interesting tale, or at least I think so. It all happened in the US, of course.

Patents were originally designed to speed the spread of new ideas. The trade off offered was: you got a 20 year monopoly on the idea in exchange for publishing it to the world. To prevent abuse patents had to be novel and specific, and this was enforced by the patent office who went over them with a fine tooth comb before awarding one. For the most part they did an acceptable job and all was good.

The pace of innovation increased, the number of patents submitted to the patent office rose until it literately took years to get a patent approved. The businesses applying for patents whinged to the US pollies. Perhaps the businesses expected the pollies to fund more patent officers. They didn't. Instead they told the patent office to "get out of the way of innovation". The patent office responded by spending less time reviewing each patent.

The quality of the patent reviews dropped markedly, but it did work - more patents got through. Unfortunately since patents were easier to get yet more patents were submitted, and so the patent office could afford even less time on each one. The cycle feed on itself. Eventually the patent office gave up. They rubber stamped patents, and the mantra become "let the courts sort it out". It turned out the courts were a lot more lenient that the patent office used to be.

Fast forward to today and we have approved patents for a cat exercise machine, which consists of a torch shining a wall. I kid you not:

[continued ...]
Posted by rstuart, Wednesday, 11 June 2008 7:43:57 PM
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Just about anything can be patented now, and there are so many patents its impossible to check if you are violating one. Combine that with a cost of around $20,000 to get a patent versus 10 times that in court costs to get it annulled, and you have a business opportunity. Simply accuse a small company of violating a patent and they will just roll over and pay the troll rather than spend the $200,000 required to annul the patent. As a consequence no small business publishes their designs - its just too risky. The effect of patents is now precisely the opposite to what was intended - they are preventing the ideas from being published.

But if that sounds bad, spare a thought for the multi-billion dollar corporations. Another remedy allowed to patent holders is an immediate shutdown of sales. The mere threat of this is terrifying to a large company - its one of the few things that could send them into bankruptcy. Using this threat to a hold large company to ransom is the most profitable business a US lawyer can get into right now.

The most spectacular patent troll success so far is NTP versus RIM (the makers of the blackberry mobile phone), where RIM agreed to pay NTP USD$612.5 million in damages. The exquisite twist in the tail: NTP's patents were later declared invalid. RIM knew they were likely to be declared invalid when they paid the money, but their production lines might of been shut down during the patent office's deliberations, so they rolled over.

So far this is just a story of insanity in the US. Australia's much saner patent and court system seemed immune to the "mad patent" disease. That all changed when the Howard government signed the Free Trade Agreement with the US. The US agreed to remove trade barriers for our beef and steel, but what could we give in return - we had no trade barriers to give up? Answer: we agreed to "normalise" our Intellectual Property laws with the US. That included patents. Way to go, boys!
Posted by rstuart, Wednesday, 11 June 2008 7:46:25 PM
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Look you blokes (and there ain't no shelias commenting or writing here ) are totally oblivious to the political reality that now exists in this country.

1. Ministers decisions and therefore Departmental advice is now subject to the concerns of a populist PM and his department.

2.If Rudd deems something electorally popular or fits his view of whats popular then it will receive support and funding.

If what you want, or the attrocious 20/20 recommendeations want, doesn't fit these simple criterial you're attempting something I'd never do in my boat ... that inolves the wind and a bodily function.
Posted by keith, Wednesday, 11 June 2008 11:02:22 PM
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