Wednesday, November 12, 2008

A Proposal To President-Elect Obama on U.S. IP Improvements

There are several blogs that are making suggestions for improving the U.S. IP system during the coming administration. I am throwing my two cents out for comment. Let me know what you think and feel free to provide your own suggestions.

First cent, I propose that any future modifications to the patent, trademark and copyright laws must be clearly supported by the Constitutional goal of advancing art and science. Art. I, sect. 8, cl. 8 of the U.S. Constitution provides that Congress has the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The central focus of IP law is the improvement of art and science for the benefit of society. It is not the central focus to create monopolies that extend three generations into the future. It is not the central focus to provide exclusive benefits to distributors of work independent of creators and the public.

While society is benefitted by a mechanism that rewards a distributor's risk in funding, promoting and publishing new work, perhaps the present structure encourages too many "one hit wonders" and does not create practical encouragement for individual creators to continue making new work.

Future modifications to the IP laws should not lose sight of the need to economically encourage the creation of new work. New IP legislation should be required to establish that its focus and effect preponderates the promotion of art and science. In doing so, new IP laws must explain their intended goals and identify the intended winners and losers. Perhaps in this way, more upfront focus will be directed toward the Constitutional manifest of promotion of art and science, with less emphasis on how distributors can acquire greater monoply rights (for an example of what not to do, see the new Pro-IP Law).

Second cent, I strongly encourage a top down examination of the structure and administration of the PTO, primarily the technical patent side. There has been considerable criticism of this agency from many quarters, including recent public comments by members of the federal bench. From all indications, including the well-publicized 30% turnover rate in the patent examination corps, the criticism may be understated. The PTO may simply be too complex for the good of its mission.

I propose that the PTO be divided into separate agencies; one for non-design patents, and one for trademarks and design patents. The trademark side and the design patent side of the PTO do not have anywhere near the same functional troubles as its technical patent sibling. The patent side needs a thorough thrashing, cleaning and restructuring by an administrator with less patent legal skills but more practical large-entity management skills. The loud criticisms heard from many quarters suggest that the present PTO management lacks the basic skills to run the complexity that the patent side has become.

~ Mike Ratoza

No comments: