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.
The mere cost of prosecuting a patent application keeps frivilous applicants at bay under the examination system, and having a formal, independent, and official process of pre-determining an invention's novelty and usefulness does give a patent greater "value" by its presumption of validity even if it only gives the inventor a right to sue.
The bitter patent fights between Glenn Curtiss and the Wright brothers about airplanes are legendary and were socially useful to the U.S. and its patent system, but I seem to recall that a federal District Judge overturned the Needie string trimmer patent on grounds that the invention was "obvious" since any gardener would think to wrap a wire or string around an electric motor mounted to a handle in order to make a trimmer.
True or not, that story really rankled me, and that's when I got the notion that maybe a registration system was, perhaps, better. You've persuaded me otherwise, and I thank you effusively!