Ruminations, Haunts, and Errors

Business interests in the manufacturing and energy industries, along with their political allies (like the current administration) are fond of dismissing the concerns of environmental activists by claiming that the existence of global warming and/or its basis in human behavior is still speculative, despite clear evidence of broad scientific support for such concerns. Regretfully the naysayers do have a grain of truth in that the solid evidence so far only indicates a correlation–global climate is too complex a system to definitively claim causal relationships based on only a century or so of detailed weather data (from North America, at least) plus a smattering of older data points.

Yet those who would take this lack of certainty to mean that climate-change concerns can simply be brushed aside are exhibiting our present society’s appalling lack of scientific literacy. I think that a quote from this article on climate change states the best way to look at the present situation:

The climate system is remarkably sensitive to natural variability. It’s likely that it is equally sensitive to effects brought on by human activity, changes like increased greenhouse gases, altered land-use policies and fossil-fuel dependence. Any prudent person would agree that we don’t yet understand the complexities with the climate system and, since we don’t, we should be extremely cautious in how much we ‘tweak’ the system.

Scientists rarely deal in absolute Truth, but just because something isn’t 100 (or 99 or 95) percent certain doesn’t mean it’s false!

For some reason, a brief patent-related news story I read on C|Net this morning prompted me to muse about the flaws of the current U.S. patent system for the remainder of my commute. It seems to me that with just a few procedural alterations, many of the abusive practices common today could be reined in without requiring fundamental shifts in the nature of patent law:

• Require applicants to submit evidence that their ideas are new, original, unique, and/or non-obvious. Such requirements would not only tend to weed out some of the more questionable patents, but also streamline the process by giving the (overworked) examiners some place to start their reviews and investigations.
• Add (or expand) safe harbor provisions. Provide exceptions that limit liability when a party shown to be infringing a patent can show that they did not do so knowingly or willingly, with the terms of judgement growing ever more lenient the longer a patent holder–especially one who is not the original recipient–waits to seek to profit from its use. Moreover, licensing terms should be especially favorable if the infringer can prove that he came upon the idea independently. In all cases where such a ’safe harbor’ provision applies, the controlling date of settlements or judgments should be the date when enforcement actions were initiated.

Essentially, I’m proposing that the ethos of granting and enforcing patents be revised so that the granting of a patent is the exception rather than the norm, the burden of proof in granting patents is placed squarely on the applicants, and the ability to profit from licensing is related to how quickly, openly, and diligently a patent holder seeks enforcement. The patent system was designed to give inventors a way to profit from their talents, or at least recoup some of the costs of development, and thus to encourage the open exchange of ideas. We need to get back to that view, and a good way to start is to rework the system a little bit so that true innovators aren’t penalized because someone else has a better lawyer or more aggressive business agent.