Should patents be forfeited if the product isn't produced?

A large problem for innovators today is patent trolls. Companies will buy out patents for things that might not have been produced. They will then sit on the patents to sue anyone who tries to build something similar. The whole reason we have patents is to encourage innovation. Patent trolls are exploiting the system to do the exact opposite. Because of this, I think if a patented product isn’t produced for several years, the patent should be voided.

That’s an interesting thought. How many would have to be produced though?

Yeah, there probably does need to be something like this that says if you’re not actively trying to bring it to market you don’t get the patent. Many companies encourage their employees to submit patents for any idea related to the company’s industry. That helps the company create a patent war chest it can use against other companies.

I’m in a software company and that’s what happens. The employees get bonuses for filing patents even if it has nothing to do with what we’re working on. So what happens is that employees get together to come up with patentable ideas just for the bonus money. Then if another company just happens to create software with that method in it, they can get sued even though my company never implemented the patent and has no plans to.

Here is a scenario for thought:

What if I have a great idea, patent it, but don’t have the money to produce it? I go to the most likely producers and attempt to negotiate an arrangement. They see the market potential, but quickly do the math and decide it would be more profitable if the patent was allowed to lapse. The turn me down and wait. I try to find another manufacturer, but the costs of entry into the market are high and all the other companies I approach realize the risks are too high because the company that turned me down would have minimal investment in adapting their equipment to make my widget and could thus easily outperform them. They also refuse me. I try to borrow money, but banks will not lend me the large amount of money needed because I don’t have the expertise.

The patent is the only thing that protects my ownership of the invention but the current plays in the market shut me out and wait until they can maximize the profit.

Or someone could pay the patent holder for the use of their patent.

The species of patent trolls I am offended by are the folks who patent stuff that is not really innovative and then sue people.

That’s the fault of the PTO. If they are approving patens without original art that is the problem. I worked in a law firm as a scientific consultant on biotech patents and was preparing for the patent bar exam. We had to work extremely hard to show any claims or new claims for existing patents represented new innovations. The PTO needs to crack down on patent approvals that aren’t really innovative.

There should be some provisions for this situation, in some limited circumstances. The patent is published, everybody can take advantage of the knowledge that the patent is based on, so the circumstances where a patent is forfeited have to be limited and strictly constructed. But the public does need some protection to ensure that it’s investment in the patent system does return a benefit to the public. Patents are part of an incentive system that is intended to benefit everyone not a protection system for an inventor to be the sole beneficiary.

This is an interesting point. How much control does the patent owner/manufacturer retain? Like cell phones – from a simple device to make calls, now they all have to have GPS, be able to emergency services even if their service lapses, and who knows what else. Because the process removes a degree of control from the originators and puts it in the hands of … committees/governments for the benefit of others.

That’s the problem with trying to direct the remedy towards a specific patent. The entire system should incentivize production so that the failure to produce in a single case is not significant. But suppose someone invents a cancer curing machine and then refuses to market or license the product for anyone to use, what do we do then? I don’t know that any such case ever existed though, until one does pre-emptively adding government controls would not go well.

Canada actually has a provision relating to abuse of patent rights, which strikes a balance between the rights of the patentee to profit, and the public to access to the technology.


This seems to me to be a reasonable compromise.

I think that the petroleum industry has been buying up patents for many years so that their interests are protected. I think 5 years should be long enough to bring a product to market, failure to do so should make the patent void

I agree with all of that but if I do create something innovative, I don’t think I should have that intellectual property taken from me because I haven’t been able to monetize it.

That’s true, but your ability to prevent other people from infringing on your patent should be limited. Especially today, when it’s highly likely that the infringer came up with the same idea independently.

For example, when touch screen phones came out, thousands of people sat around with their friends at lunch thinking of every possible way to interact with a touch screen and submitted as many patents as possible. Many of these people have no plans to ever implement any of their ideas. They simply filed them so that they (or their employer) could sue or charge licensing fees anyone who happened to implement any of those ideas. With such a large financial incentive for holding an idea hostage, it encourages predatory patent filing which stifles creativity and innovation.

I agree 100%. What I was responding to was this:

If the idea is not innovative the PTO should not be granting the patent. If it is innovative and the patent is granted, then the patent holder should not have to monetize it to keep hold of the patent.

I think this is a better solution. Make patents like songs; you own the rights but other people can use it by paying you a fixed amount.

That’s in essence what patent licensing is.The devil’s in the details, of course, but in general the patent holder retains ownership of the patent but allows the licensee the right to use the art protected by the patent with some limit on the scope of use.

If you mean patents for things like 100 mpg engines, there is no evidence to support this longstanding conspiracy theory. In any event, Honda (or whoever) would pay far more for a patent on radical alternative fuel technology in order to produce it than Texaco would to hide it.

In my opinion, they should have to monetize in order to sue for damages. Or else what are the damages? A hypothetical invention in a file drawer isn’t earning anyone any money, so who exactly is harmed if someone else produces it?

Imagine a scenario were inventor goes to big corporation to partner and big corp says “no”. Inventor can’t develop product on their own, so it sits in a drawer. Big Corp uses the idea themselves and begins development. Inventor sues for patent infringement, but can ask for no monetary damages since they themselves didn’t develop the product. There is no incentive for Big Corp to respect patent rights since there is no consequence to infringing on it. Inventor probably won’t even get a lawyer to represent them if there is no promise of any damages.

Damages here are punishment to the infringer rather than making the inventor whole.

How does one invent a product without developing it, exactly? I’ve never been too clear on that point.

Certainly the patent owner shouldn’t be required to have the final, marketable version ready to roll off the assembly lines the day he patents it, but he should take steps towards making the thing within year or two after being awarded the patent. If he’s still floating the idea around to manufacturers, that’s one thing, but if it’s sitting in a file drawer waiting for someone else to stumble on the idea so his lawyers can pounce, that seems like a clear distinction we can make.

“You have made zero effort over the past decade to market or even create a prototype of this” should be a legal defense against patent infringement.