Cost of getting patents and maintaining them
The costs of getting patents and maintaining them are not a big issue. Changing the costs will not solve any big problems.
Real problems are the cost of defending yourself against patent litigation and the cost of patent searches to avoid infringement.
Neutralizing the high costs to acquire and maintain patents is a false solution that will only start to address the problem of fixing patent law for software when it comes close to mimicking the much more equitable copyright law where costs are $0 and registration is automatic. Without these changes and others, patent law will continue to be a system where most individuals pay the price without the ability to partake in the potential benefits. More details are covered below. [edit: later move this section of high acquisition costs to it's own page and link to it from here and from the false solutions page]
- "To obtain an Australian patent and renew it for 20 years, expect to pay around $15 000."
In Europe, the costs depend on which countries you want your patent recognised in. This includes translation costs - an issue which may be reduced by the EU Community Patent.
- Validation Costs Of European Patents And The Languages Issue, July 5th 2010, IP Jur
The cost for acquiring a patent is "over $38,000", according to the 2008 Berkeley Patent Survey (this isn't specifically a software patent).
Effects of changing the cost of patenting
Raising the costs would shift more patent power toward the large companies, and lowering the costs would increase the problem of patent trolls. This page documents the costs, just in case the information is useful.
High costs to acquire patents greatly bias against most inventors of software (a failure to be like copyright)
Let's ask this question: what if copyright required registration and costs similar to the current patent system? Would this law be fair to most people?
I think the majority answer would clearly be "no", yet this is almost exactly the same situation when we look at software patents. With very high costs to acquiring a monopoly, most people would not be able to register their monopoly on any of their work and most could hardly afford to cover but a few examples. The majority is clearly missing out on a privilege only the wealthy can buy. Worse is that each such privilege granted has a negative effect on everyone not receiving the privilege.
The reason we don't notice the costs for traditional patents is that traditional patents require high capitalization to effect (to cover possible new factories or adjustment to them as well as recurring materials and labor) so few people are likely to be able to come up with a new invention or at least to want to pursue it hence the further inability to patent it is irrelevant.
Meanwhile, software development and distribution can be a zero cost affair. This is why the dynamics and fairness of first-to-file for software patents are more clearly seen by comparing this to our existing copyright system, in which many also participate and also at essentially zero cost.
What effects might we anticipate from changing the current high costs of acquiring a software patent? Raising the costs would allow only the ultra-wealthy to gain rights to monopolies. We would have fewer monopolies but control would be more concentrated. In sharp contrast, lowering the costs would lead to more monopolies but control more evenly spread. In particular, with the current broadness possible with software patents, lowering the costs significantly would truly show how unworkable is the current software patent system with so many broad patents in existence (at much greater costs to the patent office) and under dispersed unknown control, while raising the costs would still lead to a lot of control harvested by a small number of very broad patents so that it would be easier to make predictions but more would lose out completely.
In conclusion, a patent system with a high fee applied to low risk low cost activities is a very unfair patent system to the vast majority of individuals otherwise able to participate. The many can be restricted by the monopolies registered by the wealthy but can't afford to register their own. And this effect is made even worse when we consider that the software patent monopolies are very broad. To achieve fairness, we want to lower costs, but then we would need to make software patents be much more narrow: in effect mimicking software copyrights!
Related pages on ESP Wiki
- Costs of the patent system to governments
- Calculating infringement damages in the USA
- Costs are astronomically disproportionate for SMEs and individuals
- Low risk
- Software patents harm SMEs