30 January 2012

Just the last (bite-sized) bill

The last of my suggested IP reform bills deal with patent law, the oldest form of intellectual property and in many ways the most counterproductive to its alleged goal of promoting innovation. Originally an incentive for discovery, these days patents tend to scare inventors and especially developers from R & D because of the very good odds that in doing so they will invite a lawsuit from the holder of an obscure and/or overly-broad patent.

Patent Bill #1

Inasmuch as patents are granted to promote innovation, patents which remain unused in production for five years are considered invalid.

The "Use it or Lose It Act." The word "patent" reflects the goal of the law: to make new discoveries openly known and available for use. In the absence of exclusive licensing rights, the argument goes, inventors would keep their discoveries secret and the public would not benefit. But with the ever-increasing number of patents given for ever more vague "innovations" we have seen the rise of patent trolls, who acquire patents not to license but to keep in secrecy, waiting for an opportunity to bring suit against eventual infringers. And with the right combination of poorly-defined patents, "infringement" is only a matter of time. One way to fix this mess is to make the test for a patent's uniqueness and un-obviousness more stringent, but that would require sweeping, complex changes to the approvals process. This bill represents a much simpler approach: make rights holders earn their exclusivity by demonstrating that they're acting in good faith.

Patent Bill #2

While recognizing that modifying an organism's genetics may be beneficial, an organism is ultimately the product of the natural world and as such, ineligible for patent.

The "It's Alive! Act." Mapping genomes and splicing genetic material to alter food organisms may or may not be a good thing for consumers, depending on the situation. But the practice of patenting crops is always bad for farmers. Horror stories abound of patent holders of seeds charging growers with violations because their corn had the bad manners to mingle with the airborne pollen from a licensed hybrid. Or farmers are forbidden from setting aside seed for next year's planting. Setting aside the fact that the genetic material existed prior to any modification, life really is a category apart.

So these are my counter-proposals to SOPA. And while I doubt that Chris Dodd would approve of them, I believe that careful correction of the overreach of intellectual property laws would ultimately benefit rights holders more than would increasingly strong-arm tactics. After all, artists, inventors, and other creators are victims of the chilling effects of IP as much as everyone else. Less expansive yet better defined rights are easier to defend—and more likely to enjoy goodwill. All it takes is some innovation.

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