Defenders of the Public Domain

Not all problems with government require legislation to solve. One of the emerging problems of the 21st century is the demise of the public domain. For example, patents, particularly business method patents, are being issued for a lot of ideas that don't deserve legal protection, for the simple reason that they don't actually meet the legal standard for a patent but slip past harried patent examiners.

There is a process for the public to challenge proposed patents before they are issued, but the immense volume of patents, and very low probability of one being relevant to the average person means that this public notice process has little practical effect. The main users of the public notice process are established large industries who can focus on a very narrow class of patents sought by their competitors, e.g. in the area of pharmacuticals, or agricultural implements, and have patent law firms on retainer anyway, for their own inventions.

The trouble is that business method patents, in particular, and an increasing number of other kinds of patents (e.g. gene patents) have a far wider impact on people unlikely to be able to put a patent law firm on retainer. The solution? The same sorts of groups that have organized the open source movement should come together to form a private non-profit group that I'd suggest be named "Defenders of the Public Domain". This group might lobby Congress, but its main activity would be to monitor the Patent and Trademark Office public notice process and the Federal Circuit Court of Appeals docket. It would challenge dubious patents and trademarks with possible wide applicability, and would file amicus briefs in patent cases in favor of the public domain. Even a few high profile wins would discourage would be entrapreneurs from bringing weak claims.

It is an effort that could perform well at many scales, based upon donor support. Ideally, it might cultivate support from a coalition of universities and colleges, because many dubious patents attempt to privatize unacknowledge prior art developed in academia. At times, the ACLU might provide some support. But, it could start small, perhaps half a dozen staff, and build up over time as it gained fame with its early successes. Any independent voice for the public domain would be better than the status quo in which there is no really well organized interest group doing so.