Patents don't require working devices.
Posted Apr 27, 2011 21:08 UTC (Wed) by ccurtis
Parent article: 1+1 (pat. pending) - Mathematics, Software and Free Speech (Groklaw)
I have to admit I stopped short of completing this rather lengthy tome, having made it to this part:
"Where is the requirement that the disclosure in a patent specification has been tested? Where is the requirement that the invention has been implemented? I don't find this in Quinn's explanation. [...]
"I have to ask, is this kind of disclosure sufficient to meet the societal bargain of a grant of temporary monopoly rights in exchange for disclosure? I don't see any requirements that the invention is implemented let alone tested. How could this disclosure be deemed sufficient? We are not even sure there is a working invention."
Part of the trade in expressing a patentable idea is just that -- to release the idea. The reason a feasible idea is sufficient instead of also a working device is so that the patent holder is granted time to either work out the details, or to protect themselves while shopping the idea out to someone they believe can bring the device to market. For evidence of that one only needs to look at the numerous patents for perpetual motion machines that have been granted (see this wikipedia article for examples).
Whether the author is hinging the remainder of the text on this argument, or is arguing that the patent system needs this fundamental level a reform, case law will not help; this action has to come from the legislature. It is likely also to be bound in all sorts of international WIPO and Free Trade style treaties preventing a relaxing of the standard as well.
I would want to argue that in a world where everything is faster - where an idea can cross a continent and be fabricated in less time than a rider on horseback can traverse a state - that there's been a fundamental shift in the time value of the idea versus the potential societal benefit. But to counter this I could point to pharma and the mandatory FDA approval process, where the original time value balance has actually worsened (getting approval versus crossing a continent or ocean). To this end, the extended protection period may be justifiable; however, this argument would simply lead to slowing progress via additional government regulation of software through some now-fictitious "Software Security Board" instead of increasing the rate and the freedom of the information. :-(
All that aside, I wish the author well.
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