Nonobviousness: Balancing errors
All the KSR activity and discussion of nonobviousness gives me an opportunity to make explicit some considerations that are implicit in much that folk say on all sides.
The framework we use to determine whether an invention would have been obvious will affect the mix of two types of error (as well as two types of success). Any framework will yield wrongful rejections, wrongful allowances, rightful rejections, and rightful allowances. One’s preference for one framework or another will doubtless turn, at least in part, on one’s belief about the harms from large-scale wrongful allowances of patents compared to the harms from large-scale wrongful rejections. (Another important question, of course, is — for any given set of error rates — at what cost?)
In case it weren’t already clear, let me say … I think large-scale wrongful allowances of patents are far more harmful to innovation and efficiency than large-scale wrongful rejections. I’m convinced of this, in part, by the many ways innovators can appropriate the gains from an invention quite apart from patent protection (first mover advantage, sticky consumer preferences supported by trademark, trade secret protection for supporting know-how, etc.). Wrongful rejections, while regrettable, don’t seem to me to threaten innovation itself so long as they are kept infrequent enough to keep the patent system generally attractive to inventors. By comparison, a wrongfully granted patent imposes great costs on the market, and a large number of them impose enormous costs and distortions on the innovation process.
When I make suggestions about patent policy, I focus more on reducing wrongful allowances than wrongful rejections.
Hi, Prof. Miller,
I read about problems of patent thicket and anti-common, wondering this might be partly corresponsive with great market costs imposed by a wrongfully granted patent and distortion on innovation process. Also, from litigation respect, assuming that the court would make the wrong right, the question would become who bears higher burden to take a step to the court. An inventor owning wrongfully rejected invention is in a better position than a third party appealing from a wrongful granted patent. The third party has to defeat the presumption of validity. It is more burdensome to get information through discovery process. Rather, the inventor has a relatively easier task to prove the validity of his own invention. Therefore, the chance to correct the wrongfulness also makes the wrongfully granted patent more likely to survive in the current patent system.
Comment by SeliaWU — June 1, 2006 @ 10:41 am
You know, just once I’d like to see some real evidence that “patent trolls” even of the worse sort really do any significant damage to innovation in industry.
A real live “patent troll” is interested in just one thing: some money to line his pockets. He doesn’t expect to shut down a company or a line of business. He just wants his dough, and typically doesn’t want to push too hard to get it, lest his patents get invalidated or otherwise be rendered as clearly unworthy of any further royalties. SUch “trolls”, at the very worst, are a nuisance factor: business proceeds, profits dip a mite.
But what happens when you don’t have any EFFECTIVE protection against copying of other people’s ideas? Well, look to the software industry to see the answer to that. Consumer software, as an industry, for a variety of reasons, has largely developed with no real protection from copying of ideas. The result? Despite hordes and hordes of breathtaking original ideas, only ONE company really makes any significant profit on such software: Microsoft. Microsoft has, as everyone in the industry knows, co-opted virtually every important idea for consumer software applications, ripping off any and all originators of those ideas with little or no penalty over the years.
So we have a situation in which copying has NOT been protected, and, surprise surprise, the vast amount of the profits go to one large, very powerful, wholly imitative company.
Explain to me please, which is more destructive to innovation in the software industry — the generally trivial amount of diversion of profits to a few “patent trolls”, or the enormous sucking up of all available monies by an entirely derivative player in that industry?
Maybe before you talk about how it’s really bad to have large scale wrong allowances rather than large scale wrong rejections, you might ponder the signficance of this fact from the software industry.
Comment by Tom — June 6, 2006 @ 6:39 pm