I Scream, You Scream, We All Scream … for Sunscreen

By Meredith Addy
March 14, 2018

Enough Regulation! Our Economy Needs to Grow! How We Can Help.

I love the sun. I was a teenager in the 1980’s when baby oil produced a gorgeous golden tan. No longer, alas! Now, it’s sunscreens and sun-block. Aloe and zinc. A shirt and a hat.

But this morning, on seeing the juxtaposition of two random emails in my inbox, I had to pause at the ongoing nuttiness of our regulatory environment. In fact, I wanted to scream.

First, I see, sunscreen is banned in most schools. Because it’s a drug. Email number one this morning. And while you catch your breath, consider the one immediately following it in my inbox.

Headline: “Is the U.S. still the driving force of the global patent market?”

This of course alludes to the ongoing erosion of patent values domestically, while an increasing number of patents are being sought in other jurisdictions, including in China.

Leave aside for a moment a judgment about the innovation economy in China. What are our priorities? Growing the US economy through a stable and fruitful environment for innovators? Or government micro-management of issues that should be handled in the home?

You can guess where I stand. Outlaw sunscreen entirely! (Yes, I’m kidding.)

The larger issue is that we witness regulatory micromanagement at every level in our economy. For every muddle-headed government rule, there’s an equally self-serving constituency—corporate or civic—that lobbies to get their way. It plays out in news media every day. A form of entertainment, I guess.

We’re not focused on the big picture. We’re mired in fights over little issues that don’t make a difference in the overall health of the country—much less our innovation economy.

The general public is probably not interested in the innovation economy. They’re certainly not interested in patents. But they should be. The damage we’re doing now, through the current instability of patent rights, will haunt us for years into the future, yet we seem powerless to do anything about it. Congress isn’t interested. The Supreme Court isn’t interested. It’s left to inventors and entrepreneurs, to start-up companies, and yes, to patent attorneys.

What can we patent attorneys do? When our institutions move so slowly? When special interests muddy the waters with their sludge? We need to return to an era of treating innovation with the respect it deserves! And use our creativity to overcome the current less than ideal innovation environment.

An idea. Educate companies and inventors on drafting better patents—but fewer of them. Use the same amount of funds to spend time thoroughly protecting the invention up front to foster positive results. Prepare for likely hurdles downstream while establishing protection in the first place. If innovation is the process through which inventions get to market, we need to focus on the entire innovation pipeline, from invention to realization, from creation to commercialization.

For the past 20 years, our system has encouraged the commoditization of patents. Responding to price pressure, our drafting process has focused on quantity rather than quality, and that has weakened patents. Instead of ten good patents, companies somehow prefer 100 worthless ones. With what result?  Garbage in, garbage out.  And trading one stack of thin patents for another’s stack of thin patents only works for behemoth technology companies. That’s not where most innovation is occurring.

As patent attorneys, we’re service providers. We prosecute. We litigate. But we also advise. It’s our job now to overcome bad policy—an anti-patent regime. The best way to do that is to help our clients stop putting garbage into the system. To educate innovative companies about the importance of being selective about what to patent and protecting the invention as thoroughly as possible up front.

The Constitution provided for issuing patents as a means for encouraging useful innovation. If we focus on quality patents at the get-go, using what we now know about the system, more powerful assets will emerge from the Patent Office. Our clients will be happier with the outcome. I’m guessing we’ll be better off, too.

It’s a start.

 

The Author

Meredith Addy

Meredith Addy is an experienced intellectual property litigator, business strategist and consultant. Addy has handled more than 30 cases before trial courts and argued more than 40 appeals to the Federal Circuit. She has held leadership positions at several AmLaw100 firms and is a recipient of many awards and honors. Addy is partner at litigation boutique Tabet DiVito & Rothstein in Chicago, and she also consults to executive teams on the most efficient strategies for realizing their IP goals. Addy has testified before Congress to address issues relating to the Federal Circuit and the state of patent law.  She has been a member of the Federal Circuit’s Advisory Council and a member of the board of directors of the Federal Circuit Bar Association.  Addy is also a founder of the Richard Linn American Inn of Court, which is directed to intellectual property, and served as its first president. Addy has also been recognized as one of the Most Influential Women in IP Law by Law360. For more information, or to contact Meredith, please visit her firm profile page.

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Discuss this

There are currently 10 Comments comments.

  1. Raymond Van Dyke March 14, 2018 9:37 am

    Well said Meredith! We patent attorneys are also victims of our own success – the large increase in value of intangibles vis-à-vis tangibles has shifted the marketplace and economy to more and more abstraction, leading to more work. The software in a new car is now more valuable than all of the steel.

    The forces against the patent system are obvious: tech and their lobbyists in an effort to thwart competition, the press unfairly portraying patents, and the Court that is chipping away the rights. Being in the swamp, I see the lobbying inveigling and it sickens me. We patent attorneys are but one voice in this. The small inventor community, once very vocal, needs to again rise up.

    Our Founders encouraged innovation and included that in the Constitution itself. American ingenuity, the better mousetrap (I have done patents on this myself), and working out of your parents’ garage must be fostered not hindered.

    My two cents. Ray

  2. Paul Morinville March 14, 2018 12:32 pm

    When a significant technology is created and patented, competitors are concerned that the patents could cause problems especially when the patent holder is a small entity.

    Naturally, small entities can sue these large companies for patent infringement but they cannot be counter sued if the small entity doesn’t produce a product.

    But more importantly, if the nimble small entity quickly builds a product and drives the direction of the technology, many follow-on inventions will be patented by the small entity. The follow-on inventions are important because these may lock up many derivatives of the core technology long before the large sluggish company can respond. This can act to reduce the effects of a patent infringement counter suit against the small entity. The more disrupting the technology is to the large company, the more their concern heightens.

    So large companies react by patenting everything they can think of around a new technology. Most of these inventions are often very small iterations of the core technology. The bet is that something they patent can be used to sue the originating small entity if they get too far ahead, thus providing some security that they can keep the market. Most of these inventions are very minor improvements.

    These follow-on patents are also patented after the core technology is patented so they remain enforceable after the core technology is aged out and no longer enforceable. When the core technology ages out, these patents are often sold to nonpracticing entities for enforcement. Then, of course, a different set of huge corporations scream junk patents even as they did the same thing in a different technology.

  3. Ternary March 14, 2018 1:14 pm

    But what are “quality patents?” In my book “quality patents” are patents that cover (and protect) quality inventions. Our current system that relies on “low quality and ambiguous language” is designed to deny and reject protection of inventions. The notion of something being novel but still obvious is an example of that. Our patent system has no way to securely recognize and protect an invention, which is usually an apparatus or a method that did not exist previously. That is: there is no way to accurately predict that a patent will be issued and that the issued patent will not be invalidated. That is a patent system failure, not an invention failure. The objective of the system/Examiners is to find reasons to invalidate/deny a patent, while the objective of an inventor is to create something novel. These objectives are increasingly irreconcilable under the current patent regime.

    If there is no way to reasonably assure an inventor protection of her/his invention, even the most persistent inventor will eventually stop making and/or disclosing the invention.

    So, here is my proposal for improving the quality of patents: an inventor or patent owner will have the right to amend the claims (and to file a continuation) of an application any time during the lifetime of an issued patent. That is, even after paying the issue fee, the application stays alive. This will, at least partially, reverse the “gotcha” nature of our patent system. Thus no patent application dies, until no maintenance fees are paid or the term of the patent has expired.

  4. Benny March 15, 2018 5:28 am

    “The best way to do that is to help our clients stop putting garbage into the system.”
    I wouldn’t take that advice. My aim is to put banana peels in the system, to trip up my competitors. I don’t use the patent system to “teach the useful arts”. No one does that anymore. I use it as a tool to gain a competitive edge, in much the same way I would employ an advertising agency – knowing full well that while the ads increase revenue, they are cultural slime.

  5. Anon March 15, 2018 10:10 am

    My comment continues to be blocked, somehow triggering a “the page has moved” response.

    The block is not limited to this thread, so there is probably some wording in my reply that is triggering the response.

  6. Benny March 15, 2018 10:27 am

    Anon,
    That AI for you. The comment filter detects unintelligible sentences and blocks them. Try writing in plain English and see what happens.

  7. Ternary March 15, 2018 12:41 pm

    Anon, I had the same message in the past. Send an email to Renee. She is very helpful and able to post directly. Benny, I always find Anon’s comments highly pertinent and supported by arguments. The fact that your comment @6 was posted proves that no AI (or even I) was involved in the filter. Sorry, could not resist that bait.

  8. Anon March 15, 2018 12:47 pm

    Benny,

    With all due respect, the fact that your comments rorutinely get through disproves your theory.

    In shorter terms: Bite me.

  9. Anon March 15, 2018 12:49 pm

    Ternary,

    I owe you a soda – your post was not showing when I submitted my (same message) reply.

  10. Benny March 15, 2018 1:50 pm

    No sense of humor, any of you.

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