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Under current conditions, the present patent system:
  1. Serves the interests of establishment echelons of firms in each industry, whose interest is not one of significant or truly new invention. People's immediate short-term interests are being looked out for—the advantaged echelons plus shareholder investors, and sometimes the interests of the employees as well—but the long-run interests of both that industry and the economy are not helped by this set of conditions.

  2. Does not serve the interests of the independent inventor for whom it was originally intended.

  3. Serves in fact as more of a barrier than a help to the interests of the independent inventor, both as regards costs and as regards the illusion of protection.

  4. Only provides the inventor the right to sue.


The suggested reform
We do not propose dismantling or even drastically overhauling the present system. Rather, we suggest expanding on an often overlooked, minor feature of the present system and creating from it a secondary patent system for those who wished to avail themselves of it. Everyone else who wished to, could continue with the present patent system with all its structure, content, employment, and international ramifications.

The feature of the system in question, in place now, makes no pretenses about being a "protection." All it does is provide a record which gives the individual filing it the right to sue against infringements by establishing prior origination—for 2 years. Fill in and file a form with the U.S. Commissioner of Patents. Then for 2 years (renewable if you show "diligence" in trying to develop it), you have that right to sue. The rest is up to the records you keep, vs. the records kept by the infringer, as to whose idea it was and how it was developed, as recognized by the courts in event of such suit.

Well, that right-to-sue, over a longer period of time, is all you really get when you obtain a full-fledged patent.

The patent provides one other service—a detailed description of how to build or create the device or effect incorporated in the invention. However, under the exclusivity provisions of current patent law, despite those public detailed instructions, the only one who can manufacture the invention (barring deep-pocketed infringers, of course) is whoever is licensed to do so by the inventor.


Proposed New Secondary Patent System
We propose a second-tier "patent" system which would cost much less, and would encourage the independent inventor. (Perhaps only $100 per invention-claim, $25 per amendment filed, general expectation total cost only $100.) This system would, as mentioned, provide the independent the right to sue. It would drop the clause of exclusivity. Anyone who wishes to can manufacture the device or process so filed, automatically paying the inventor 2% of whatever is spent in that invention's context. Another 1% would go, where appropriate, to the firm or investor who had provided opportunity for that inventor, whether or not the inventor had done the invention on his own time or on company time. Another 1% would go to the agency or system to pay for the costs of this program. The least any manufacturer would be out would be 3% and the most would be 4%, a certainty which would further encourage development to go ahead on many items. There would be an agency to see that the 2% is in fact paid to the inventor, so long as the product is exploited, throughout the 12- to 17-year period of coverage after filing.

Non-disclosure and secrecy contracts between inventors and their employers would remain in force, and generally not be affected by this system. Where disputes arose over such contracts, these would focus on violations of secrecy provisions and not on ownership of inventions whose information bases were independent. Only in extreme cases of clear exploitation of privy secret knowledge would ownership of an invention be affected thereby.

A mere 2% sounds like very little, but is more than what 99% of inventors, in or out of the major firms, ever get for even those of their creations which are accepted!

When lawyers fight, they would be fighting over 2% of the value of the invention and not the whole value entire. This would produce a very different, better behavior, both in and out of court. For this reason, in instances of conflict between this new secondary patent system and the continuing main patent system—say, where someone claimed to have invented a product and others started manufacturing it under that 2% provision—where the product in question was already apparently covered by pre-existing full patents—the 2% provision should take precedence. In the case where the product in question was already substantially in production before the time that the secondary patent was filed, existing production and distribution contracts previously let under the main patent would take precedence, other things being equal.

The terms for the secondary patent would be nowhere as rigorous as for a full patent, and of course nowhere near so costly to administer. Indeed, the present 2-year pre-patent filing system with the U.S. Commissioner of Patents involves no requirements nor review, no standards except the required $10, two copies, and sealable return envelope! We suggest a system not so much of requirements as of low-keyed editorial guidance, aimed at getting the production instructions clear enough for reviewers to be able to follow them to build the invention and begin paying the 2%. Even that guidance is only by suggestion:— the inventor at any time may finalize his filing, editor's only recourse being that of stamping "Not Clarified" and his own signature on the cover of the document. Editor and inventor are meant to be on the same side of the table, in pursuit of the goal of nurturing independent and high-order creativity in U.S. science, technology and the economy.

The new system does not solve all problems. There are still issues of distribution and marketing in a huge-scaled economy. There are issues of environmental impact. There may be more opportunity for conflicting claims than before, due to the less rigorous standards for the secondary-level patent. But the level and incidence of litigation is likely to actually decline due to the stakes' being reduced to 2% of the value of the inventions in question.

The new system would provide easier access for and better service to the independent inventor from whom most real breakthrough advances come. The new system would provide a much, much better access for industry to new inventions for manufacture. Most inventors would actually be rewarded for their efforts instead of punished or destroyed. New products and services would flow into production and service. All corners of American industry could again advance in much the same way and degree as that presently out-of-control high-tech electronics/computer industry has been doing. It seems to this writer, at least, that all these outcomes are highly desirable, and that no drawbacks from them pertain which are comparable.

Here is a further way to insure that value gets produced and transacted.... that production of inventions and breakthroughs won't get held up for many years over disputes of ownership....that intellectual capital invested is productive and creates returns. We propose a further provision or statute:

Where ownership and/or derivation of a proposed invention within this system comes into legal dispute, anyone may still have use of it and produce it, or continue to use it, while paying a 2% fee into escrow account pending settlement of that dispute.

A practical consideration — to fund the system while ensuring that inventors receive 2% of the value of their product and ensuring that the product moves forward in the creating of value,

Amend the figure paid by producers and users of the invention from 2% to 3%, in all aspects of the above proposal. The inventor will continue to receive 2%, the difference going to fund the system up to some statutory limit of assets, any excess going into an invention development revolving fund.


Summary
  1. The present patent system is unsatisfactory, and contrary to its announced purpose operates counterproductively, discouraging rather than supporting independent inventors.

  2. The present system is, however, heavily embedded in and invested into a network of arrangements and laws, including international agreements, many of which we are all better off with than without.

  3. The proposed revision can operate mostly within the existing system, without disturbing those arrangements and agreements. Whether accomplished as a private initiative or as a public one, this proposed version makes an absolute minimum change in existing laws, but restores support and incentive to our historically richest source of invention and discovery and main basis of economic development in this country—the independent inventor.
Your comments and improvements on this proposal are invited.

O

Email to
Win Wenger


This science creativity resource comes from The Center for Creativity in the Sciences, a publishing division of Project Renaissance.
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