Sunday, April 29, 2012

Patent Office Exploring Keeping Patents Secret If They're 'Economically Significant'

by Mike Masnick - TechDirt
Fri, Apr 27th 2012
from the wasn't-disclosure-the-point? dept


We're told, repeatedly, by some patent system supporters that the whole point of the patent system is really about "disclosure." Of course, this is a myth for a variety of reasons. The biggest, of course, is that in many industries, patents are both completely useless to learn anything from and are never used to learn how things are done. This is especially true in software, where you will never hear about anyone learning how to do anything from a patent.

A few years back, the US Patent and Trademark Office (USPTO) started publishing nearly all patent applications 18 months after the application came in. This is a pretty common practice around the globe. If a patent system is about disclosure, this makes sense -- and in theory, allows for people to point out prior art or protest certain patents before they're issued. There is a current exception for patents deemed in the interest of national security to keep secret (such as patents on nuclear energy).

However, Francisco George points us to the news that the USPTO is now considering also keeping "economically significant" patents secret too (pdf and embedded below). They're exploring this after being directed by Congress -- and it's not hard to see the lobbyists' fingerprints on the specific request:
By statute, patent applications are published no earlier than 18 months after the filing date, but it takes an average of about three years for a patent application to be processed. This period of time between publication and patent award provides worldwide access to the information included in those applications. In some circumstances, this information allows competitors to design around U.S. technologies and seize markets before the U.S. inventor is able to raise financing and secure a market.
As far as can be told, this directive seems to be saying that because patent applications might do what the patent system is supposed to do -- help disclose ideas -- we should keep the applications secret. The problem, of course, is that pretty much every patent applicant is going to think their patent is economically significant. The reality is that pretty much no one knows if their patents are economically meaningful until years later when a product is actually on the market. This proposal seems to serve no purpose other than helping companies not to disclose ideas while still letting them get patents.


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