Patents are a method of encouraging innovation and distributing knowledge (but not necessarily the best/optimal means to achieve these goals).
Some problems with patents are a) the large cost difficulty of examination, and b) the difficulty of challenging a patent's validity.
The cost of examination
is due to employing a large number of scientists/engineers to assess the validity of each patent. The cost of examination is passed onto the patent applicant thus making the patent application process expensive (particularly for small and medium size businesses).
The difficulty of administering patents is becoming increasingly problematic for patent offices around the world. The difficulty is due to the a) increasing number of patent applications, b) the increasing complexity of patent applications and c) increasing amount of prior art that needs to be searched. This difficulty is manifesting itself in large backlogs of patent applications and (possibly) decreasing quality of examination.
There have been many suggestions of how to deal with these difficulties, for example: 1) restricting the technologies that can be patented, 2) increasing the threshold of inventiveness, 3) increase co-operation between patent offices to reduce rework.
Unfortunately all of these suggestions have already been tried (to various degrees), without much success. The problem is these suggestions try to reduce the workload without attacking the underlying problem.
One solution is to remove all patent examination and assume each patent application is valid until challenged by a competitor. This solution would also require the competitor to provide proof of invalidity and/or fees, (this additional requirement is to prevent automatic challenging of all patents). An advantage of this system is that it focuses effort only on contentious patents, rather than wasting time on trivial/uninteresting patents.
I believe this is a partial solution, but it still puts too much of a burden on the challenger and leaves the validity of each patent in doubt until such a challenge has taken place.
So my solution is to remove all patent examination (as described above) but also put some of the burden of prior art searching onto the patent applicant themselves. Basically, the patent applicant would have to disclose the 3 most relevant prior art documents they can find. The patent applicant would also have to explain how their invention differs from these three prior art documents. To challenge the validity of a patent, the challenger must identify at least one patent that is *more relevant* to the invention than the 3 identified patents. Deciding whether the one identified patent was *more relevant* than the 3 identified patents would be the new role for the patent examiners. If more challenger’s prior art is found to be more relevant than all 3 identified prior art documents, the patent would be found to be invalid and hence revoked.
This system has similarities to the present system, but is subtly different. For example, the current US and European systems require that the patent applicant disclose prior art that they are aware of. But this encourages either a) deliberate ignorance on the part of the applicant, or the opposite b) disclosing every prior art document under the sun (thus hiding the really relevant document in an extensive list).
The current patent system also has a procedure for competitors to challenge patents, but this requires a very high level of proof of why the patent is invalid. This procedure also allows the patent applicant to overcome the reasons for invalidity (by, for example, amending the patent) without too much difficulty.
My proposed patent system has several advantages over the current system: 1) it encourages the applicant to be honest about what prior art they are aware of; 2) it encourages the applicant to do a good quality search before applying for a patent; 3) it puts the role of searching in the hands of the person who is knowledgeable about the invention (rather than the patent examiner who might know very little about the particular technology); 4) it also encourages the challenger, who is also knowledgeable about the technology, to be honest and do thorough prior art searching. Thus it encourages a peer-assessment of patents.
This system is particularly advantageous because it would only require a small change in how patent attorneys draft patent applications, and would not require the patent system to change too much overall.