Having been a patent attorney for a major part of my career, I must admit that I took the openness of the US patent system for granted until when I started to think about it from the point of view of global and national strategies.
I don’t know for sure what kind of a patent system is better or optimal, to be honest. But I do see problems.
The patent laws were developed in the West during the age of industrialization with a near-complete focus on domestic innovation and competitiveness, without any foresight of the kind of globalization we are in now.
Much of the international efforts in the past several decades have not changed the fundamental nature of national patent laws; they have only aimed at improving procedural aspects.
In the case of the US and China, for example, the following are facts:
(1) because there is no such a thing called ‘international patent’, a US patent has absolutely no protection in China (vice versa);
(2) even if you have a patent in China, it does not mean you have parity in protection at all.
(3) One might say the above are reciprocally true, but the reciprocity exists only in appearance. Patent protection in China, especially for foreign patent owners, is weak. It is weak not merely in a quantitative sense in proportion to the technological development levels of the two countries but qualitatively weak. The two systems are not comparable.
This poses a dilemma for US companies. When you have a patent in the US, you essentially provide public educational material to your competitors in China. The patent publications make the most effective system of tech info dissemination and education, all for free.
Patents are not merely information made public. Much information is public today but not easily found because the information is scattered, and people are not paying attention to it. When there’s too much information out there, things could be hidden in plain sight. However, patent publication is perhaps the biggest exception because it has become the default place to find tech innovation-related information.
In contrast, when a Chinese company secures patents in the US, it enjoys a reverse advantage. It leverages much cheaper R&D in China and much stronger protection in the US.
The above is intended by the patent law but with unintended consequences in a heterogeneous global scene.
In addition, the US patent law has best mode and enablement requirements, meaning that a patent disclosure must disclose the best implementation mode the inventor is aware of, and the disclosure must be sufficient to enable one who is skilled in the art to practice the invention. This makes the US patents especially vulnerable (or valuable, depending on the angle you’re looking at).
The above is why Tesla opted for (in fact, forced to adopt) an open patent strategy.
See my article for more: “Tesla’s patent strategy“, in which I also discuss Microsoft’s China experience.
Intellectual property is a serious matter in today’s global economy, business competition, and even broader geopolitics. Most people underestimate the significance of this matter.