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2015-08-26 08:25:40   来源:   评论:0 点击:

  英国杂志经济学人发表了一篇题为“Time to fix patents"的文章,讨论专利制度目前所存在的问题,文中所指出的问题,值得反思,反观中国的专利制度,有一定借鉴意义。为了便于阅读,编辑对本文进行了翻译配在原文之后,译文有不当之处敬请指出。



In 1970 the United States recognized thepotential of crop science by broadening the scope of patents in agriculture.Patent are supposed to reward inventioness, so that should have galvanizedprogress. Yet, despite providing extra protection, that change and a further broadeningof the regime in the 1980s led neither to more private research into wheat norto an increase in yields. Overall, the productivity of American agriculturecontinued its gentle upward climb, much as it had before.


In other industries, too, stronger patentsystems seem not to lead to more innovation. That alone would be disappointing,but the evidence suggests something far worse.


Patents are supposed to spread knowledge,by obliging holders to lay out their innovation for all to see; they oftenfail, because patent-lawyers are masters of obfuscation. Instead, the systemhas created a parasitic ecology of trolls and defensive patent-holders, who aimto block innovation, or at least to stand in its way unless they can grab ashare of the spoils. A early study found that newcomers to the semiconductor businesshad to buy licences from incumbents for as much as $200m. Patents should spurbursts of innovation; Instead, they are used to lock in incumbents’ advantages.


The patent system is expensive. Adecade-old study reckons that in 2005, without the temporary monopoly patentbestow, America might have saved three-quarters of its $210billion bill forprescription drugs. The expense would be worth it if patents brought innovationand prosperity. They don’t.


Innovation fuels the abundance of modernlife. From Google’s algorithms to a new treatment for cystic fibrosis, itunderpins the knowledge in the “knowledge economy”. The cost of the innovationthat never takes place because of the flawed patent system is incalculable.Patent protection is spreading, through deals such as planned Trans-PacificPartnership, which promises to cover one-third of world trade. The aim shouldbe to fix the system, not make it more pervasive.


The English patent


One radical answer would be to abolishpatents altogether-indeed, in 19th-century Britain, that was thisnewspaper’s preference. But abolition flies in the face of the intuition thatif you create a drug or invent a machine, you have a claim on your work just asyou would if you had build a house. Should someone move into your living roomuninvited, you would feel justifiably aggrieved. So do those who have theirideas stolen.


Yet no property rights are absolute. Whenthe benefits are large enough, governments routinely override them—by seizingmoney through taxation, demolishing house to make way for roads and controllingwhat you can do with your land. Strikingly the balance between the claim of theindividual and the interests of society is hard. But with ideas, the argumentthat the government should force the owners of intellectual property to shareis especially strong.


One reason is that sharing ideas will notcause as much harm to the property owner as sharing physical property does. Twofarmers cannot harvest the same crops, but an imitator can reproduce an ideawithout depriving its owner of the original. The other reason is that sharingbrings huge benefits to society. These spring partly from the wider use of theidea itself. If only a few can afford a treatment, the diseased will suffer,despite the trivially small cost of actually manufacturing the pills to curethem. Sharing also leads to extra innovation. Ideas overlap. Inventions dependon earlier creative advances. There would be no Jazz without blues; no iPhonewithout touchscreens. The signs are that innovation today is less about entirelynovel breakthroughs, and more about the clever combination and extension ofexisting ideas.


Governments have long recognized that thesearguments justify limits on patents. Still, despite repeated attempts to reformit, the system fails. Can it be made to work better?


Light-bulb moment


Reformers should be guided by an awarenessof their own limitations. Because ideas are intangible and innovation iscomplex, Solomon himself would find it hard to adjudicate between competingclaims. Under-resourced patent-officers will always struggle againstwell-heeled patent lawyers. Over the years, the regime is likely to fall victimto lobbying and special pleading. Hence a clear, rough-and-ready patent systemis better than an elegant but complex one. In government as in invention,simplicity is a strength.


One aim should be to rout the trolls andthe blockers. Studies have found that 40-90% of patents are never exploited orlicensed out by their owners. Patents should come with a blunt “use it or loseit” rule, so that they expire if the invention is not brought to market.Patents should also be easier to challenge without the expense of a full-blowncourt case. The burden of proof for overturning a patent in court should belowered.


Patents should reward those who work hardon big, fresh ideas, rather than those who file the paperwork on a tiddler. Therequirement for ideas to be “non-obvious” must be strengthened. Apple shouldnot be granted patent on rectangular tablets with rounded corners; Twitter doesnot deserve a patent on its pull-to-refresh feed.


Patents also last too long. Protection for20 years might make sense in the pharmaceutical industry, because to test adrug and bring it to market can take more than a decade. But in industries likeinformation technology, the time from brain wave to production line, or line ofcode, is much shorter. When patents lag behind the pace of innovation, firmsend up with monopolies on the building-blocks of an industry. Google, forinstance, has a patent from 1998 on ranking websites in search results by thenumber of the other sites linking to them. Here some additional complexity isinevitable: in fast-moving industries, governments should gradually reduce thelength of patents. Even pharmaceutical firms could live with shorter patents ifthe regulatory regime allowed them to bring treatments to market sooner and forless upfront cost.


Today’s patent regime operates in the name of progress. Instead, it sets innovation back. Time to fix it.



































来源:选文转载自The Economist 《中国发明与专利》翻译

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