Our new and improved, doubly ineffective patent system

Our patent system has two primary purposes -

1. To encourage disclosure of inventions, and

2. To encourage development of new ideas by fostering design around efforts

Seems to me our great, world-leading patent system is now failing to achieve these purposes in at least two regards…with a third complication on the horizon:

1. - The Old. The “bury your head in the sand and don’t read patents” effect of our duty to disclose provisions is legendary around the globe, basically encouraging our best and brightest to avoid reading patents (and other technical references) in fear of having knowledge that they later forget to disclose in an application that might bear only a marginal relationship to the subject matter of the ignored patents. Combine this with the guarantee of an inequitable conduct charge - well-founded or not - should the resulting patent ever be litigated, and you can understand why some technical folks shudder at the sight of patents. Poof! So much for sparking new ideas.

2. - The Now. That which is disclosed in a patent application and not claimed is, of course, dedicated to the public. Our shiny new Patent Office rules now place arbitrary limits on the number of claims that can be obtained for a disclosed invention, which has our brightest inventors telling their patent attorneys “naw…let’s not disclose that embodiment right now…I’m afraid I won’t be able to claim it. ” After carefully considering the best mode requirement, many inventors are, I suspect, sending many wonderful alternative embodiments straight to the cutting room floor. So much for encouraging disclosure.

3. - The Future. Combine #2 with an elimination of the best mode requirement - which has been the subject of patent reform bills for the last several years - and you’ll get a glimpse of our system of the future. Rubber stamped, narrow protection that fails to encourage much of anything. Ouch.

How’s that for promoting progress?