It still seems like the examination system of patents is inequitable. Say for example, that a cold fusion invention did indeed work, and that it was cobbled together by some small entrepreneural outfit. Under a registration system parallel to copyrights, the destitute inventor would have to make an enabling disclosure to claim patent rights. Meanwhile, Big Gamma Nukes could read the disclosure, implement the invention (infringe the patent), and would owe the inventor an adverse royalty based on the value of the infringement absent reaching a prior agreement.
Obviously, the inventor wasn't capable of fielding a cold fusion powerplant without raising a bunch of venture capital or making a deal with an outfit capable of doing it. The present patent system would scare off any outfit capable and determined to get into the business even if it had other necessary technology to bring to the table.
It seems that all a patent is good for is standing to sue an infringer in federal court, an expensive and risky proposition. Microsoft can defend its patents, but a MicroSqueak probably can't even afford the filing fees!
Since it's in the public's interest to benefit from new and useful inventions as well as reward inventors so as to induce more of them to make new, neat stuff, it seems that a registration system has many more positives than negatives just as the copyright system does.
If I remember my history correctly, the last switch to the present examination system was championed by a particular senator, and it finally became law in about June, 1830. Within a very short time, that senator was issued a patent on a steam locomotive, called Hercules or something. Yeah, sure.... A senator invented a locomotive in a month or so. Right!
Anyway, the IP field has intrigued me for years, and it just seems that the public and inventors aren't best served with an examination patent system.
It seems that all a patent is good for is standing to sue an infringer in federal court, an expensive and risky proposition. Microsoft can defend its patents, but a MicroSqueak probably can't even afford the filing fees!
Since it's in the public's interest to benefit from new and useful inventions as well as reward inventors so as to induce more of them to make new, neat stuff, it seems that a registration system has many more positives than negatives just as the copyright system does.
Thank you for the generous compliment, above. Shucks.
Well, you've hit on a number of different points that are worth exploring. One is registration systems compared with examination systems, from a couple angles. The justification for examination at all, and why for copyright, examination "in advance" is not worth the cost. Second, that you are right on the money that a person seeking a patent needs to do so with eyes open, including the possibility of infringement litigation. Patent infringement litigation, by the way, is the most expensive litigation going. If I recall correctly, the average cost of a patent infringement lawsuit is about half a million dollars.
But more basically, patent protection is only useful to the extent a person can reap a commercial benefit. The basic harms caused by the "joke" and "impossible devices" patents are the possibility to defraud naive investors by flashing a granted Patent under their nose, and a bad face for the Patent Office.
The discussion below is over-simplified. The simplifications (which inevitably create technical errors) shouldn't affect the conceptual points being made, but could be crucial to a person trying to understand a particular dispute; or a person trying to figure out if they might be able to secure a patent.
Registration vs. Examination
The choice here is basically one of how to most efficiently allocate the act of examination. Examination is bound to happen, one place or another. And, when the issue of "registration vs. examination" is applied to the office that grants the legal right, the question isn't "examine" vs. "not examine," it is the degree of examination.
In the US, copyrights are recorded in the Library of Congress. Anybody who sends an item in can have it duly recorded, for a modest fee of about $20. In fact, even copied works can be "copyrighted." But, if I send in a photocopied rendition of Moby Dick, the Library of Congress is apt to notice (some amount of examination going on, else they wouldn't notice this), and the copyright is apt to not be recorded, and I might even get in trouble. So, there is some "examination," but not much, and not guaranteed. But what happens if I copy something that is not famously known?
Sometimes the true creator gets wind of somebody having copied his work. This only happens (matters) when the true creator starts to lose money -- which happens when the copiER makes competitive inroads against the true creator. Then what? LAWSUIT. The matter of whether the copiER indeed copied is settled in court, not in the Library of Congress. But trust me, the matter will get settled if enough money hangs in the balance.
So, why not examine the material that is submitted to the Library of Congress, and only grant the copyright if the applicant did not copy the work? Because an examination of copyright is expensive and is not reliable, until there is an actual dispute. It requires an investigation into 1) all other materials that resemble the applicant's work and 2) the circumstances surrounding the creation of the work, by the applicant. This is a two step process. The applicant can't be denied a copyright just because there is a similar work already on file. It must also be that the applicant copied somebody else's work, because under copyright, if the work isn't copied, both the applicant and the first creator have copyright, at the same time! When asked if the work was copied (the easy way to perform step two of the examination) the applicant might lie. A court confrontation measurably improves the reliability, but is very costly, and socially inefficient. So, for copyrights, we opt for a registration system up front, and most examination takes place in court.to make the examination reliability to the
Patent applications are examined by the US Patent and Trademark Office. The minimum total official fees related to a patent application for a "small entity" are presently $370 for filing, and $640 for issue. There are usually other fees, and the application and examination processes are very complex, so an inventor should budget at least an amount closer to $5000. Anyway, as we noted in the previous post, patents and copyrights have some substantial differences. Namely, one (patents) is good against ALL infringers and applies to concepts in the nature of inventions; while the other (copyrights) is only good against a copier and applies to works in the nature of writings, music, or sculpture.
Now, we determined that examination will take place. But we can vary the extent to which examination takes place in advance of a dispute vs. the number of disputes that will go all the way to court. For patents, the least expensive overall approach to determine if the applicant is entitled to the patent by reviewing already issued publications; and to tolerate some number of "wrong" grants that may eventually require resolution in court. Examination of patent claims is not as difficult to accomplish as comparing a short story against all the other short stories ever written, or comparing a tune/song against all other tunes or songs ever written. The nature of human inventive output (compared with artistic output) permits technical categorization and the quick determination, at a small cost and with a good degree of reliability, whether a given invention is indeed "new."
If we registered Patents to all applicants, without performing some amount of review of the existing state of the art, there would soon be billions of patents, as people literally "reinvented the wheel," and more patent infringement disputes would have to be settled by the courts.
What good is a Patent to a Small Guy?
The right to exclude others, which is what a patent holder has, is ultimately enforced by a court. The notion that only wealthy patentees can "defend" their patents is noted, and the legal system has provided some interesting mechanisms to deter the big company from stealing ideas right from a patent.
Usually, the amount of money owed to the winner in a civil lawsuit is "damages." Only the amount of money that you lost is at stake. But, wilful infringers face treble damages. If the big company's device "reads on" the claims in your patent, and you have no reason to believe your patent can be invalidated by the court (although it does happen, see the "How to Swing" patent, which would be invalidated if it was worth the money to take it to court), then you have substantially more leverage. Look at the bright side of fighting a "Goliath" company, if you win, they have the funds to pay the judgement! Lawyers will take good infringement cases on contingency. The small guy needs to "grow a set" and assert his rights.
Technicalities
You mentioned that an inventor has to make an "enabling disclosure." This is true, it is a legal requirement. If an inventor does not enable others to practice the invention, any patent that issues will be found invalid in a court. Not only that, an inventor has a legal obligation to disclose the BEST mode that he knows. The object of the patent system, remember, is to enrich the public by enticing inventors to make their inventions known, and practice-able by others after the term of the patent grant expires.
The balancing act is to set the patent (or copyright) term (time of enforceability), and power (scope of effect) for the public benefit -- which means authors and inventors need enough incentive to create -- but only enough, there is no social value to "overpayment" in the form of very long terms, or for example, by changing copyright to be enforceable against ALL comers, not just those who copy.
Soap Box
I'm a firm believer in human nature, and history shows us that a properly balanced and functioning patent system DOES benefit society. Humans have a bit of greed, and a bit of pride, and when incentivised with the possibility of getting lots of money for a new invention, millions of minds get busy THINKING about commercially valuable things. Without the possibility of being able to exclude the big guys, millions of minds would not bother to innovate.
Let me summarize your scenario, because there is another contentious issue in this thread. That issue in general is the value of an invention to society as a whole vs. compensation (even development money) to the inventor. Few people have thought about the range of possible and reasonable outcomes.
In your scenario:
What is the "just" outcome? Will the inventor be forced to license his invention? Will Big Gamma be forced to cease practice of the invention? Well, to use the classic answer, "it depends." The general rule is that Big Gamma, if it wilfully infringes, is liable for treble damages; and even if willfulness can't be proved, infringement still makes it liable for damages to the inventor. The general rule is also that the inventor can force Big Gamma to cease practicing the invention. The cost to the infringer can be enormous. Kodak had to dismantle a production facility, remove many cameras and much film from the stream of commerce, and pay damages to Polaroid in an patent dispute that related to "instant" photography. Polaroid had no obligation to license a competitor, Kodak, and the notion of "adverse royalty" did not play.
But what if the invention has health consequences? What if "cold fusion" was demonstrated to have the ability to make unlimited clean power, eliminate all combustion related air pollution (cars, electricity generation, etc.), and do so without creating any harmful waste product? Would the courts force the inventor to license Big Gamma? If so, would the courts set the compensation due to the inventor? Tough questions, and I won't predict an outcome on the hypothetical. But, courts have permitted infringement, when the absence of infringement was shown to create a serious detriment to public health. City of Milwaukee v. Activated Sludge, 69 F.2d 577, 593 (7th Cir. 1934) (Court of Appeals upheld validity and infringement findings of district court but lifted injunction against the City of Milwaukee that would have closed a sewage treatment plant and led to dumping raw sewage of the city into Lake Michigan).
The balance between public health and patents is a contentious and hotly debated issue. Some countries do not permit patents on health-related inventions, such as ethical drugs (not my field, and I may get the countries wrong, but I believe India and Brazil fit this description). In other countries, devices that permit new surgical procedures (or non-invasive treatments) are patentable. Where to draw the line on patentable subject matter is a subject that is worthy of debate. Maybe, if cold fusion is such a public boon, we should NOT permit it to be patented at all. Whoa, that notion stirs the memory of our "how not to encourage innovation" discussion!
For cold fusion, another point to keep in mind is that scientific principles are not patentable. If cold fusion exists, the fact that it exists can not be patented. The inventor has to embody the reaction in something; a series of steps, a device, something. One can patent the furnace, but not the fire.
As for the present complaint of the "cold fusion" advocates (which I take as a call for more money) -- researchers compete for public and private money all the time. Human nature is that people are greedy, and when an invention has commercial value, it WILL be developed. The patent office has no ability to stifle commercial development, and it is not their business to encourage commercial development. The function of the PTO is to examine patents, and to grant them if the statutory requirements for patentability have been met.
People who "peddle" 200 MPG carburetors, free energy transformers, and cold fusion have some things in common: they are asking for money, and they won't (or can't) teach you how to make a commercially valuable one for yourself. Let me tell you, I have enough skill to make a carburetor. Just give me the drawings, and I will make it. I will sell copies at the local shop. If it works, people will buy them because it will save them money. The notion that big oil killed this is nuts. By their nature, patents MUST be public documents, or else people can't know they are infringing. So what if big oil "buys the patent?" Even absent any patent, an inventor is free to dedicate the invention to the public. Print the plans on your web site. If it's a patent, the PTO has already done this for you. Scammers don't, because it kills their scam. But what if big oil "buys the patent" and decides not to commercialize it? If the invention was commercially valuable and the patent taught how to practice the invention, big oil would have infringers. If there was a 200 MPG carburetor, there would be thousands of infringers. Big oil sues me, I say, "okay, I'll stop." End of issue (for me). No court. No trial. A million people do it? A million lawsuits? I don't think so. Kind of like enforcing that swing patent. What is the inventor going to do, scream at kids on the playground? Hahahahahahahaha!!