Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


Is there a test for whether an invention is non-obvious?

Techdirt has an interesting discussion of patent law, suggesting that the test for whether an innovation is non-obvious needs to be clarified. So far, as a practical matter the only test is whether there is prior art and that is often hard to show, even when the invention seems all too obvious (link here).

In other words, the constitutional test for granting a patent--that the invention be new and non-obvious--is faulty in practice.


Today, the boot is on the other foot: If it hasn't been patented yet, then it isn't obvious.

People patent things today precisely because they're obvious and that they know they'll need a grant of monopoly in order to enjoy the commercial support from litigation against anyone else using the obvious idea.

Remember, the whole point of patents is not due to some moral right of the patentee, but to encourage the publication of ideas. You have to ask yourself "Would there really be hordes of geniuses either enjoying incredible wealth through private exploitation of their discoveries, or paupers preferring to hide their light under a bushel to prevent anyone else exploiting it?"

Private exploiters are easy. You simply offer them money to publish.

Poverty stricken people who have a brilliant idea, but no means or inclination to exploit it or publish it....

Somehow I don't think the rest of the world's population should have their own ingenuity constrained by people who happen to register invariably obvious ideas, just on the off chance they might register really obscure, but brilliant ideas that no-one else is likely to think of in the next decade.

And most of the commercially or publicly valuable ideas are never discovered/recognised until someone else thinks of them anyway and tries to patent them.

The problem with secrets is that you can't get someone to help you exploit them unless you disclose them. That's simply one of the fundamentally intractable aspects of the universe. It's a matter of trust and no artificial system can do much to help - without having horrendous side-effects.

If you were to have several patent applications that you had submitted to your company and they were sitting in some guys file folder collecting dust for several months then what would or could you say to get that person motivated to get on with the job and submit the applications to the USPTO?

I think it is almost criminal when someone prepares things at there own expense of time and some other guy thinks it does not matter; but isn't a patent a matter of "time is of the essence" - whoever makes it to the patent house first - wins!.

How do you impress upon a guy that he can't share the ideas with a whole bunch of people to decide whether the company should carry the patent or not because of the leak of info to the public?

Please let me hear some very convincing arguments.

Thank You,


I'm afraid I have no special expertise in how to get higher ups to do their jobs. (Move to a better run company? Doesn't sound like these guys are long for this world.) On the "whoever makes it to the patent house first wins" in the U.S. that isn't literally true. In Europe it is, but in the U.S. the patent is supposed to be awarded to the person who can prove precedence in invention rather than the person who happens to file first. As often the case Wikepedia has some relevant information.

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