Why do patents exist? A person does not inherently own the rights to his ideas. The patent is an artificial construct to encourage innovation in areas that otherwise would be under-developed. For example, certain companies invest millions of dollars in R&D and only get a return on their investment if they own exclusive rights to their inventions for a certain period. In this way, the patent system can encourage innovation.
Recently, some have begun trying out to crowd-sourcing some of the patent review process. Instead of just having inefficient government clerks reviewing the patents, some have begun opening the process to the wider public. This way many people can review the patents to see if they involve any “prior art”. This is a good step, but the very definition of the patent needs to change. Even if a patent does not involve prior art, who says the idea is so innovative that others couldn’t have thought of it on their own?
Instead of just checking the patents for prior art, I suggest a more radical move. If an idea truly deserves to be patented, then no one else should be able to think of the same idea on their own. To apply for a patent, a person or company would have to submit the problem they are trying to solve, and the general area of the solution they have in mind, which would all be posted to a public site. Their actual solution would be posted privately to the patent site. If no one can suggest the same solution, than the patent is truly innovative and will be granted. But if people can come up with the same solution on their own, then no patent would be granted. Why should there be a patent, when others were able to figure out the same idea?
This would greatly reduce the number of patents that are actually granted, but it would fit with the way ideas are actually discovered. In a recent paper, “The Myth of the Sole Inventor“, Mark Lemley demonstrates that most inventions are invented simultaneously by different groups of people working independently of each other. There is little reason why one group should be granted exclusive rights to something that would have been invented anyways. In my proposed solution, they would both be able to submit to one site, and instead of a patent being granted, the idea would become open to the public. The companies would still be encouraged to submit their ideas, whether to get their patent, or to prevent their competitors from patenting the idea.
By having the general public review the patents, people will suggest different ideas, and this will lead to even more innovation. Of course, this will lead to large numbers of submissions, and new methods will be needed to categorize and process all the patent data. In the current system, the patent-reviewers do not even have access to the internet when reviewing patents. In the new system, all patent applications will be well categorized and tagged and have clear semantic data that could be processed by computers. This way, it will be much easier to find related patents, and perhaps even to discover what areas are ripe for new ideas.