> > This is vaguely reminiscent of "Guilty until proven innocent" > > I patent something that already exists and get away with it, and start > earning > money on my patent from people who don't know it exists. Eventually > someone > comes along who disputes the patent. He then has to appeal to the same > overworked patent office that issued the patent to overturn it - and the > burden of proof is on him. > > So the combination of a quick thinking patenter and an overworked office > can > lead to a system that is absurd. > > shiv > >
I'd argue that the process for invalidating a patent, while perhaps costly (At the very least in time)[1], is a far easier burden to sustain than proving innocence after a presupposition of guilt. Sometimes it can be challenging past the application phase, but I see patents routinely declared invalid on a daily basis. Clear and convincing evidence is not proof beyond a reasonable doubt ;) THe patent system needs reform, no doubt. But let's put it into perspective here: To take your guilty before proven innocent criminal example a little father, it's equivalent to throwing out a perfectly workable system that happens to have some failings just because some (but by no means most, or even a great many) innocent individuals get thrown in the slammer.[2] [1] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=688005 [2] Prof. Mark Lemley, who is one of the most ardent supporters of US patent reform in particular, even acknowledges this much: "The problem, then, is not that the Patent Office issues a large number of bad patents. Rather, it is that the Patent Office issues a small but worrisome number of economically significant bad patents and those patents enjoy a strong, but undeserved, presumption of validity." http://www.cato.org/pubs/regulation/regv28n4/v28n4-noted.pdf
