Download the current version of the
paper in PDF
Download the current proposed statutory language in PDF
This paper discusses the problems with current patents, especially for fast-moving technologies, and proposes a new, intermediate form of protection as a solution. An example based on the Amazon "one-click" patent illustrates how current patent protection is "too much, too long, too late."
In particular, the protection would be for four years and would come into being after filing of an application containing a disclosure of the technology and appropriate claims, receiving a registration number, and using the technology in commerce marked with the registration number. Novelty would be required, and substantial independent creation would be a defense.
At the same time this alternative protection is adopted, the requirements for getting a utility patent could be strengthened. A substantial increase in application fees could support the level of examination warranted by the protection given by a patent. And we could go from a system where "A person shall be entitled to a patent unless" to one where "A person shall be entitled to a patent if" stringent conditions were met.
How the proposal would be beneficial to software developers is discussed in "Why Software Developers Should Support a New, Limited Patent," presented at EUPACO-2, The European Patent Conference, Brussels, May 15-16 2007.
An earlier version of the paper was published as "A New Look at Patent Reform" in the September 2005 issue of Journal of the Patent and Trademark Office Society. The April 20, 2006 and May 19, 2006 revisions of that paper is also available.
An addendum to that paper discusses the proposal in light of a tier examination scheme proposed by Profs. Mark Lemley, Doug Lichtman, and Bhaven Sampat and Ben Klemens' call for ending software patents and reverting to copyright only.
A short piece based on the paper, "Patents 2.0: A new type of patent is needed," was published in the February 2006 issue of IEEE Spectrum.
This page was last revised on September 17, 2007.
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