Of course - the Shield Act wouldn't be necessary if the invalid patents
weren't being granted in the first place.
Solutions to fix
that:
First: recognize that "tangible" has two definitions. The common one
as well as the Legal one.
The Legal definition as applied to deciding
whether or not something is tangible in the sense that it can be granted a
patent is nonesense. The legal defintion of tangible - as I understand it - is
something that has monetary value. The very nature of exclusion in the patent
grant creates monetary value. Without the patent grant - abstract concepts
wouldn't otherwise have direct monetary value. One could build a business
around copyright - the particular expression of those abstract concepts such as
a math text book. But one doesn't own Math itself.... or a specific formula in
math.
As a result, the common definition of tangible - that which can be
touched, has a physical presence - must be the definition that is applied to
decide whether something should be protectable by Patent Law.
Result: If you
can't touch it - you can't patent it!
Second: recognize software and
"business method patents" exist only in the abstract sense - you can not
physically touch them!
Third: Apply existing Law: Abstract concepts are
not patentable subject matter!
Of course - this must be applied at all
levels of Patent grant/enforcement. The USPTO and Federal Circuit are just as
responsible for applying these concepts as the Supreme's are.
That's one
step that would go a LONG way to resolving the current patent issues. A second
step I'd recommend is:
Stop granting patents for every little enhancement.
Go back to the roots of Jefferson where it had to be a significant enhancement -
or something truly new and useful - in order to qualify for patent
protection.
Of course, with the above suggestions there's still the biggest
problem of all:
The Patent Lawyers willing to argue!
Other then
restructing the system such that the Patent Lawyers can be disciplined - even as
far as disbarment - there really isn't anything that can be done about them. As
a result - they'll argue that the printed word on paper is physical therefore
pass the tangible test.
When you have a party involved in a process that
faces all the benefits and none of the costs of the process - the word abuse
does not exist for them. If they can't (or won't) be punished - they're not
being abusive.
RAS[ Reply to This | Parent | # ]
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