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Patent Flexibility

Posted by: Michael Arndt on December 10, 2008

Around the world today, most patents provide a monopoly for 20 years, with the clock starting on the date the application was filed. There are only a few exceptions. Because it takes so long to get regulatory OKs, drugmakers, for instance, are given extensions that take effect once their new products win approval.

Maybe it’s time to become more flexible. Or so says Gary Litman, the U.S. Chamber of Commerce’s vice-president of Europe and Eurasia policy. Litman is a participant in the Salzburg Global Seminar’s five-day conference on intellectual property and innovation. I’ve also been here, along with more than 50 others from some two dozen nations.

Stressing that he's offering only his personal views, and not necessarily the chamber's, Litman told us at the seminar that patent offices in the U.S. and elsewhere should think about establishing two categories of patents. One would be for drugs, with patent protection for 20 years. The second would be for devices, and their patents would expire after only a few years.

Pharmaceutical companies need patents that long, Litman told me afterword, to recoup their huge investments in R&D. But device producers generally can recoup their investments--and then some--within a few years of putting their new goods on the market. They have to. These products stop being money-makers soon after that as new versions take their place. And he was not just talking about consumer electronics; fishing rods, he said, can become obsolete that fast, too.

So OK, why not let continue awarding these device patent-holders protection for 20 years? Even if they drop out of the market, where's the harm? Litman's response: Increasingly, innovators are deciding that patents aren't worth the time and money. And they have an alternative: They can choose to keep their breakthroughs to themselves, as trade secrets.

Coca-Cola and KFC have done this forever, with their secret--and non-patent-protected--recipes. But there's a danger, Litman argued, if many high-tech pioneers go this same route. When a company files for a patent, it must reveal its discoveries. Sure, that stops everyone else from making that same exact thing, but others can learn from each advance to produce something even better. If those in the lead keep their how-to hush-hush, though, progress may be stymied.

Here's more from Litman:

Reader Comments


December 12, 2008 11:48 AM

It doesn't sound like this has been thought through very well. Shortening the protection of device patents to two years wouldn't change the cost or hassle of filing a patent, so why would this encourage more companies to apply for one? It seems to encourage the opposite, since now there's even less of a benefit of having the protection.


December 12, 2008 5:30 PM

Mr. Litman should think again, or more likely just think. So non-pharmaceutical inventions “stop being money-makers” after a few years? Has he ever heard of the electric light bulb, the airplane, the toaster, etc.

We can engineer our way out of this government invented economic meltdown, but only if we provide the proper motivation to do so. Keep in mind Edwin Armstrong the inventor of FM radio died under the strain of enforcing his patent rights after many years of legal fighting. It took Cyrus McCormick 7 years to sell his first reaper. With those kinds of challenges facing innovators the patent system had damn well better provide substantial motivation...and that would not include a patent term of only a few years. As Confucius would say learning without thinking is useless. Thinking without learning is dangerous. Government had better think again.


December 14, 2008 1:44 AM

With officials/pundits like Gary Litman, it probably makes sense to tell my kids to go into marketing or politics or maybe hamburger flipping rather than to study for a degree in engineering and science.
The rewards in an engineering/science career appear to be diminishing - and CERTAINLY it doesnt pay to invent anything when the moneyed well-connected megacorps can just lift the idea, and produce it for pennies on the dollar in the Far East.
"Flash of Genius"
Ford was quite flush back then and quite happy to trample on IP rights back then (and CERTAINLY would have supported a "weak IP rights regime"). Today they are begging in Washington with a tin cup. Oh, but the serial patent infringers LOVE their corporate jets. Look at Cisco, Countrywide Financial and all of the other members of the Coalition for Patent "Fairness" which LOVE H1-B visas and HATE strong patent rights (which would pay engineers a fair share).
This is why the IEEE opposed last year's Patent "Reform" bill which would have destroyed the US patent system by making the price of infringement a joke.


December 14, 2008 10:41 AM

We can engineer our way out of this government invented economic meltdown, but only if we provide the proper motivation to do so

"My God, such as the economic crisis, looooook, handbags are not worth" Excuse me, you, I see only good news would like to share.Merry Christmas everybody


December 16, 2008 4:55 PM

" . . .most patents provide a monopoly for 20 years . . "

How about a copywrite term that is on par with the par term whatever it ends up to be ? Why is it we should cut Hollywood special interests so much slack - maybe we would actually get better movies after the copywrites expire ..


December 16, 2008 5:01 PM

The movie "Flash Of Genius" is being played out right now in the courts - see

Also - there is a world wide shortage of engineers right now - the short sighted thinking "MARC" points out - has played out nicely for engineers - for the first time in history engineers are commanding competitive salarys because of the shortage. Also, historically engineers have really never been out of work - they may have had to move - but there has always been work since the last depression ..

Roger Evans

December 18, 2008 9:27 PM

Patents lasting more than 10 years for drugs are bad governing. Not only are patented drugs very expensive but the profits are colossal. And who pays for them? The sick and the infirm.

The sick should not have to support today's crude hit and miss methods of concocting new drugs. Some new thinking by drug makers is overdue particularly molecular chemistry, but with such high profits why change !

Michael Arndt

December 19, 2008 5:03 PM

Gary Litman of the U.S. Chamber of Commerce dropped me and the other participants of the Salzburg Global Seminar an email today pointing us to its recommendations on improving the U.S. Patent and Trademark Office. Among them: Boosting the office's budget to reduce the so-called pendency time from 32 months.

Anyone interested can go here:

I'd like to hear what you think.


January 30, 2009 4:20 PM

"Patent Flexibility" That is a "politically colossal conundrum" if there were not enough barriers already to go to market for the individual inventor.
TRANSLATION: weak patent protection for those who need it and strong patent protection for those who don't.

Has Gary Litman tried to get a patent lately? Protection starts at time of filing not issuance. Not to mention that an irresponsible examiner at the USPTO can burn much of your time and money, 36 months pendency who are you kidding. Let's clarify it's not a monopoly,it is a time limited right to exclude, allowing an inventor a surviving chance in an unbalanced marketplace. Which companies get the $750 billion bailout, which ones do not. Throwing money at a problem doesn't necessarily solve it.

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