Cutting Through the Patent Thicket

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Yet, anecdotally, all VCs remember days when a half-dozen companies pitching the same idea, in the same market, using the identical technological approach, appeared at their doorstep seeking investment. Isn't that what is meant by "obvious"? None of these companies should be granted IP to exclude their competitors. They should compete instead on execution.

SCIENCE OR INVENTION?

More quantitatively, I have observed firsthand how easy it is for experts to generate good, but similar, ideas. While at AT&T (T) in the early 1990s, I sponsored two separate ideation sessions around a potential new market, bringing in 50 experts each time to brainstorm for applications. Both groups generated ideas with real commercial value.

Both groups, however, generated more than 95% of the same ideas in common. They were "obvious" in the fullest sense of the word and would have been commercialized with or without the incentive of a patent. But the Patent Office found them "novel," and issued AT&T claims by the basketful. I would argue that none of those ideas deserved a patent.

And much of what the Patent Office sees as invention is merely science applied to a new field by equation or analogy. At AT&T, we took old microwave patents and filed identical claims on optical inventions, which are also radio waves, only 10,000 times smaller. We were able to do this even though it was obvious to anyone who ever picked up a physics textbook that once you have the ability to make things smaller, the physics just translates over.

RADICAL SIMPLIFICATION.

The solution is for the Patent Office to set the bar much higher for new patents. It should reject applications for ideas anyone well versed in the art would automatically develop, once faced with that problem. That includes minor changes in size, shape, or properties whose impact is definitely predicted by science, as well as eliminating entire classes of ideas that are "in the air."

The Patent Office should invite third-party comments and expert testimony as soon as the patent filing is made public. These communities have much greater knowledge than the Patent Office about what's truly new, and will help raise the bar for everyone.

Such radical simplification would have a huge positive impact on both innovation and economic growth:

• It would encourage people to work on hard problems -- without the fear that someone else could capture the lion's share of the benefit with a trivial variation on their pioneering idea.

• It would speed the patent-granting process, aligning business timescales with IP timescales.

• It would give companies and their investors IP certainty they could bank on.

• It would reduce the number of patent cases that go to court -- a huge waste of time and money for society.

INTERNATIONAL DIALOGUE.

A patent is a license to exclude others from practicing your invention, but businesses need freedom to operate. A broad patent would repel competitors from blocking its value with trivial variations. Instead of applying for 10 minor patents, inventors would apply for just one of true economic value. The flow of information surrounding invention would accelerate -- and so would innovation.

In such a scenario, America would become the gold standard for patents. Other countries might continue the practice of patenting the hair-splitting and trivial. But as it became clear that a U.S. patent was the strongest in the world -- the one that attracts capital -- the discipline would win worldwide recognition.

Moreover, countries like China and India, which are just agreeing to respect intellectual property, would be much easier to engage in dialogue if infringement were clear and the number of issues reduced.

LESS IS MORE.

Patent simplification, as I have outlined it, presents some problems. For example, the greater barriers to patents would probably require higher upfront costs -- perhaps too much for lone inventors to pay.

But these are details that stand a good chance of resolving themselves. For instance, a group of patent lawyers might emerge who would represent such money-strapped individuals on a contingency basis. After all, the resulting patent would cut a clearing in the forest, where new economic growth could thrive.

Higher standards and greater simplicity are the path to a better patent system -- for our nation and for its inventors. In my case, probably no more than a dozen of my 70 patents would reach this bar. Yet they would be more valuable in the end. Sometimes more isn't better.

Blonder, a general partner at Morgenthaler Ventures, is based in Princeton, N.J.