Even a Stopped Clock…

EVEN A STOPPED CLOCK….This is a couple days late but we’ve had a magazine to put out. Sunday’s New York Times features a pretty good op-ed on out-of-control patents by the science-fiction writer Michael Crichton. Say what you want about Crichton ? who’s lately begun leveraging his “scientific” credentials to carve out a second career as a prominent global warming skeptic ? but he sure knows patents.

Crichton highlights the fact that current law allows patents for things that simply should not be patentable. For instance, he notes, 20 percent of the human genome ? including the gene for diabetes ? is now privately owned. That could require anyone wanting to conduct research on the genetic basis of diabetes to pay a licensing fee to the patent-holder ? or they could be prevented from conducting research at all.

Crichton also alludes to the controversy over “business method” patents, though he doesn’t use the phrase, and ignores entirely the area in which they do the most to stifle innovation: software. Since a landmark 1998 decision, courts have held that business methods ? essentially, ways of doing something, rather than concrete physical inventions ? are patentable. That decision opened the door to an unprecedented boom in patent applications on software, with the result that vast areas of technological innovation have been cordoned off.

Crichton also doesn’t address a major part of the problem ? the patent office itself. As we showed in a story last year, thanks to a shortage of patent examiners and a perverse bonus system which incentivizes examiners to grant patent applications rather than reject them, the USPTO issues too many patents. Many of the problems of our patent system could be solved simply by reforming the office, so as to reduce the number of faulty patents that slip through.