Public domain and failure of the patent system to meet its Constitutional mandate.


After attending 27 conferences this year, something clicked.  My original thoughts for this probably emerged while talking to innovators and hackers at the Open Knowledge conference in Geneva, Switzerland this past September.  In a conversation today in Dallas with Judge Plager of the Federal Circuit and Dennis Crouch of Patently-o, my thoughts solidified as follows:

We have a patent system, because the U.S. Consitution demanded we create one. In particular, Article 1, Section 8 gave Congress the power to:

“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Now, here is how the patent system has failed to meet this Constitutional mandate.

• It is a fundamental purpose of the patent system to – in essence – advance innovation by placing expired patents into the public domain so that innovators can build upon them to create more innovation.

• Unfortunately, it is a rare innovator that can tell an expired patent from an unexpired patent!

• As a result, innovators looking for solutions to problems are shy to access the vast knowledge base found in the patent record – because if they found ideas they like, they wouldn’t know that they could safely (without being sued for patent infringement) build upon them. In addition after they conceive an idea, if they research it and find a patent with a similar idea as theirs, they are more likely to give up (and stop innovating), believing that they “can’t do it, because it’s patented” – even if the patent they found is actually long expired!

• Accordingly, the present system fails to effectively meet the promise of advancing  “science and the useful arts”.

Thus,  my two assertions:
1. An expired patent technically in the public domain isn’t (as a practical matter) in the public domain, unless the public readily knows it’s in the public domain.
2. One of the biggest needs for education among innovators is not teaching them what qualifies for a patent or what qualifies for a trademark (as is conventionally done), but showing them how to safely utilize the vast body of teachings (8,000,000+ U.S. patents) contained within the prior art as the basis for further innovation.

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