In my previous article of this series, I have shown that the high patent quality standard discourages all kinds of inventors. In this last article, I will show that a high patent quality standard is repugnant to the U.S. Constitution. When the patent office talks about patent quality, it refers to how well claimed intentions avoid reading prior art, and how well granted patents meet legal requirements. One of the measures the patent office has repeatedly used is controlling patent grant rates and punishing examiners for granting patents on inventions that should not be granted.
The constitutional purpose of the U.S. patent system is to promote the progress of art. This mission may be restated in a plain language as: getting the largest number of inventions for the public, getting the most important inventions for the public, and getting critical inventions in the right times. The government policy is to build a technological landscape defined by a large number of inventions to support American economy, strength national security, and promote national prosperity.
One main reason against using a high patent quality standard is that patent quality cannot be accurately measured. I note that the high-accuracy ideology came from the common law model. When the King of England invented the common law model, he had to show that his new adjudication method was better and fairer. It seemed necessary to use an identical legal theory for all similar cases and decided similar cases by using the same method. Each legal theory was defined by several abstract elements or categorical concepts. For a dispute, all facts including conduct, acts, and things were fitted to each of the abstract elements often by strained fitting, and the case was then decided by determining whether the legal theory was met. From the modeling point of view, all legal theories are extremely poor. Such models cannot pass scientific validity check. Nevertheless, the common law model was better than then-used methods—dueling and ordeals. To see how bad common law model is, imagine that all human conducts from destroying the planet to playing a bad joke may be characterized as malice; and 1 dollar and one billion dollars can meet the same consideration requirement in contracts. When a scale can deliver only an approximate weight in kilogram readings, it wastes resources to fight in a dispute in a reading error in a fraction of a gram. To underplay the model problems, courts have increasingly relied on technicalities, deadlines, procedures, rules, doctrines, and endless game-playing devices to distract litigants’ attention to justice. When miscarriage of justice happens, it is convenient blame the party’s fault.
Patent quality is even more difficult to measure. Considering inventions such as matches, stainless steel, plastic, vulcanized rubber, and penicillin, no common facts can be used in comparing patent quality. Patent legal requirements are used purely due to necessity. It is difficult to compare one patent with another patent. It is even more difficult to compare patented claims with prior art, imaging the unlimited freedom of selecting references and their combination. Whether a patent should be granted or denied cannot be determined in certainty even if references, relevant case law, and claims are fixed. The courts can still split in opinions because a large number of terms, legal rules, relevant law, doctrines, and other things in patent are susceptible to different interpretations. The large number of 5-4 decisions handed down by the U.S. Supreme Court demonstrate that it is impossible to make accurate determination even for a simple statute. However, if relevant law, facts, and references can be changed, as in patent case, outcome is unpredictable. I believe that “margin of errors” is really caused by “inherent uncertainty” and it is more than 20%, if all patents are fully challenged by using all possible prior art and decided by different judges. Moreover, there is no scientific basis to assume that a case holding must be applied to all inventions. A holding, which may be good in some cases, may result in absurd results in other cases. Different outcomes would be caused by the flaw in using the case law. When errors cannot be accurately defined and measured, patent examinations and patent trials necessarily result in conflicting outcomes.
Since the legal theory and the methods of adjudication carry inherent uncertainty in big margins, what is important is not to eliminate them, but find a proper way to address so-called errors. I believe that all those errors must be resolved in favor of inventors if the government understands the overwhelming society interest in securing inventions and the tiny rewards are actually delivered to inventors in the patent history. If errors are charged against inventors, such adverse actions will discourage inventing activities. Each adverse action will discourage individual inventors from trying, discourage accidental inventors from making inventions, and discourage people from becoming professional inventors. All adverse actions are accumulated to become a compelling force for destroying the innovation culture. If the Patent Office continues using the one-way patent quality policy, it will continue damaging public trust in the patent system. The public does not have to deal with a patent system that lacks good faith in fulfilling its firm offer. Erring on the side of inventors will advance constitutional purpose, but erring on the corporate side will cripple the patent system. This is now an indisputable fact.
It is often argued that bad patents can burden business. In addressing this argument, I must consider three different things: patent quality, litigation costs, and abusive litigation practices. Patents granted by taking the benefit of doubt do not mean they are actually invalid or bad. Yes and No is only a common law notion that is clearly contrary to reality. They merely have some weaknesses in the eye of law and are at odds with doctrines which are often incomplete, obsolete, and even absurd. It is entirely possible that some questionable inventions are highly inventive and of very high value to society. If a patent contains overly broad claims, a proper remedy is to amend the claims instead of invaliding the patent. It is well known that the court may construe the claim narrowly to avoid reading on unintended devices or processes.
The burden on business must be judged in light of the total contribution of inventions secured in the patent system. To see how millions of inventions help the U.S. economy, one only needs to pick up any product in a grocery store or departmental store, and count the number of inventions on components, used materials, formulations, and implied production processes. Even containers, package materials, and shipping methods are disclosed in patents. Some inventions are used everywhere with perpetual useful lives. Others may be replaceable or have limited useful times. Some accidental inventions such as matches, stainless steel, plastic, vulcanized rubber, penicillin, x-ray, and microwave have huge values to society. If one tried to “remove” them from our offices and homes, it would hard to imagine what is left. Just those inventions alone might have changed the world histories and have changed our life. Many inventions by individual inventors such as the copy machine as well as many foundational inventions by founders had great impacts on the U.S. economy. A large number of inventions by professional inventors such as Thomas Edison have benefited mankind significantly. It is too easy to forget the huge benefits of inventions. A large number of inventions are not replaceable. Multiple inventions would appear only when an underlying problem is being tackled by multiple inventors independently.
Since U.S. patents are granted with exclusive right to exclude, the only way to realize values of inventions is licensing, suing for damages or both. This reward mechanism would depend upon corporate cultural attitude to patents. In the early time, corporations were more willing to license and buy patents. After corporations have developed a culture of using free inventions, patent owners are unable to get rewards and unable to enforce their rights due to excessive enforcement fees. Thus, the only way to recover tiny values is selling patents to enforcement firms. This naturally leads to two problems: too many patent lawsuits and incidental bad patent lawsuits. When the patent system is so big, a few instances of bad patent lawsuits are unavoidable. No matter how good a patent system is, it must have a few percent of bad patent lawsuits. This is particularly so in the patent field because the law itself is approximate and legal requirements are subject to different interpretations. Excessive broad patent claims and abusive litigation practices can burden the public, but their harmful impacts cannot be addressed in isolated cases. Their impacts must be addressed in light of the positive impacts of the system and must be addressed in a systematic approach that takes into account those positive, desirable impacts. Abusive litigation practices must be addressed in light of the corporate culture of resisting licensing patents and buying intentions.
Negative effects of patent suits on corporations are not the same as the negative effects of inventors-hostile measures on technological progress. First, the side-effect of patent lawsuits will not result in a permanent loss that cannot be offset. If a corporation is gone as a result of a patent lawsuit, better corporations may appear. In comparison, if an invention is lost, it may be forever lost or cause society not to have the invention for some time. Second, if a corporation is suited for infringing a patent, the corporation must be in the vicinity of using inventions. The Constitution promises invention rewards as the right to exclude or right to sue. Therefore, risks of being sued for infringing patents are implied by the U.S. Constitution. The risks must fall on those who use inventions. Moreover, corporations must accept reasonable “harassment” by patent owners because they are the biggest beneficiaries of the patent system. Most big corporations use thousands to millions of inventions; and the inventors spend their own money and use their inventive skills to create inventions for their benefits. There is absolute no equitable point for corporations. Unless corporations are charged with use fees for inventions they use, they must tolerate some patent lawsuits so that they can use the millions of inventions acquired by the U.S. patent system. Finally, the government should never have created a legal environment to protect the status quo of corporations. The patent clause implies the opposite: since it encourages technological innovation, it must favor corporate successive replacements. Bad corporations should be replaced by new one with technologies more beneficial to people.
A high patent standard is detriment to all inventing activities that are protected by the U.S. Constitution. The Constitution does not place a threshold on inventive level and it was never intended to mean that rewards were only for super inventions. This is a basis for using multiple protection grants. All inventions are rare birds that cannot be mass-produced like articles in production shops. Thus, the patent office must use the most inclusive fishnet with an ability to capture as many inventions as possible. Since each invention is unknown at the time of capturing, one cannot design any method to capture all good inventions. Placing any limitation in the capturing method could exclude great and even greatest inventions before the patent office even knows what would be excluded.
I will end my articles with the following conclusion:
Inventions are rare birds with very high value to society and unpredictable impacts on technological landscape and economy. History is a best reminder of important roles of inventions. The Qing dynasty of China quickly lost its superpower in a big part due to its losses in wars it fought. Its poor performance in battles was in a big part due to disadvantages in military technologies. Many inventions cannot be duplicated by other inventors, many inventions may be duplicated only after long delays, and many inventions are critically important in timing. The number of inventions that would be made in a given nation is basically limited by the number of people, the educational and skill levels of the population, and overall technological state. The patent system envisioned by the U.S. Constitution is to encourage all people to find solutions to all problems in all fields. Since people cannot be forced to make inventions, the only way to make people to invent is providing sufficient inventive.
Cited data shows the U.S. has a technological crisis. The patent office role is stifling technological progress for the nation. Due to its long corporation-favoring policies, the U.S. individual inventors took only about 4 inventions per 100,000 people. This number is rapidly going down in response to the inventor-hostile AIA. The number of inventions by U.S. entities is fewer than Japan, and it will be surpassed by South Korean. It is only about one-tenth of China’s number recorded for China patent office. The U.S. patent system has become a corporate extension for protecting corporate products, achieving monopoly, perpetuating their existences, and taking inventions for free.
More than half of the U.S. patents are granted to foreign entities each year, with a large number of patents accumulated for enforcement against U.S. entities. U.S. corporations are on the losing side of competition. Some corporations harass individual inventions to open up technological spaces; and whenever patents are invalided, the underlying inventions will be free for foreign corporations. The whole patent system works in a spiral process to harm the national interest: few individual inventors get fewer and fewer patents while foreign corporations take more and more shares; more patents are invalided and more technological spaces are freed for foreign corporations; fewer and fewer individual inventors will try to invent, more and more patents will be taken by foreign corporations. Even a large portion of U.S. corporations has used U.S. patents to further foreign interests. Each time, when a patent is granted to a foreign corporation or a U.S. corporation aligned with foreign interests, the U.S. will surrender relevant markets for the entire terms with little benefit to the U.S. The technological poor performance is clearly correlated to the U.S. trade deficit from 1976 to present. When the patent office is hostile to U.S. individual inventors, they are not inventing and not patenting. The U.S. can never retake the technological spaces back. The market will be controlled by foreign corporations and U.S. corporations aligned with foreign interests. The patent office is promoting the interest of foreign competitions and foreign monopolies.
Until the patent office understands invention nature, abandon even-handed application philosophy and the high-quality standard, restore inventor-friendly policies, and terminate all money-can-buy privileges, whatever it does will only make the patent system worse. The AIA has not exerted its full adverse impacts yet, but the U.S. has suffered irreversible damages that cannot be undone. The high patent quality ideology has prohibitory impacts on U.S. inventive activities. They collectively make promised rewards failure so that inventions can be freely taken. The disparity in the application filing numbers between South Korean and North Korean shows how much bad patent policies could do to damage the national technological foundation.
A lowest patent quality standard can encourage a largest number of people to try to capture a largest number of inventive opportunities and make a largest number of inventions. A patent policy should remove all artificial barriers for would-be-inventors and let the people to steer technological development in multiple new directions. The constitutional mission implies that sound patent policies favor the replacement of old technological corporations by new technological entities, require inventions-using corporations to accept the risks of patent lawsuits, and promote commercial activities that advances inventive activities. The side effects of overreaching claims and questionable patents should be addressed carefully without discouraging inventing activities.
Thinking tankers should think how to recover from this man-made technological crisis. The Congress should create a new patent system, and write basic patent policies in the statute to prevent states regulators, federal and state courts, and the patent office from making more mistakes in the future.