Integrating the patent and copyright system into a paradigm that is compatible with the digital age
Table of Contents
The dichotomy of “copyright for literary creation, patents for technical invention” has visibly broken down due to the appearance of software and the debate about copyrightability vs patentability for software. It is time for an integrated redesign of the intellectual/industrial property (i2p) system. Recent experience shows that copyright comes closer to what is needed than patent law. Future exclusion rights should be Fast, Cheap, Narrow. Initially they should be biased in favor of the rightholder, but the burden should shift soon.
Patents are touted to be “deal” of “monopoly for disclosure”, where society benefits by having the “invention” disclosed at an early stage.
In reality, a monopoly *cannot* be granted without disclosure. Broad claims need to be codified and publicly scrutinised. What is touted as a deal is a *necessary feature* of any monpoly right rather than something for which there was a demand by the public.
If broad monopoly rights are not granted by a future “fast, cheap, narrow” i2p system, there is also less of a need for disclosure.
Yet, even in a “Fast, Cheap, Narrow” i2p system, the rightholder often has an interest in being able to prove when he made his achievement, and disclosure will help him. Competition will build further incentives for disclosure.
In the case of software, object code can usually not be decompiled in a meaningful way. Decompilation does not seriously lessen the first mover advantage, because it does not provide a useful result to the competitor. Much of the advantages of the original achiever are based on this type of informal property right, and society has little interest in obtaining the source code at an early stage. For the initial 1-2 years, even a decompilation ban might not hurt.
This can be generalised to logical creations, and even in engineering in the applied natural sciences, there is something like a difference between the conceptual level (source code), to which the originator has early access, and a level of more or less intransparent work results. It is said that chromatography makes this difference very small, but this probably has to be investigate more closely – after all the software patent lobby also tends to exaggerate the power of decompilation in software. In any case, often the public’s interest in early disclosure is fairly low compared to the public’s interest in leaving natural market incentives for creation/innovation undisturbed.
The pharma industry is said to need patents especially because of the high expenses involved in clinical testing.
However clinical testing is not directly related to invention, and there are more direct ways of granting those who have successfully passed clinical tests a monopoly right which allows them to recoup investments. E.g. it is common practise in some countries to grant the introducers of a newly tested medicine seven years of exclusivity, during which nobody else can introduce the same medicine based on the same testing data.
Development of new chemical, biochemical or pharmaceutical solutions is said to regularly involve high investments in conducting experiments. Moroever, it is said that the resulting knowledge tends to be suitable for claiming as done in patents, such that one patent closely corresponds to one product. This seems to be so particularly in cases where experiments with forces of nature are involved and the invention is built on a discovery of a new causal relation between the means employed and a “surprising effect” which was obtained thereby.
Since empirical knowledge in applied natural sciences is clearly distinguishable from logical knowledge, it is possible, even within a copyright-based paradigm, to have special rules that allow a seemless continuation of the most legitimate core parts of the traditional patent system.