America Needs an Eighteenth-Century Patent System

By Gene Quinn
April 13, 2018

“The patent system our founding fathers created recognized the contributions made by everyone in the innovation ecosystem were important and necessary. We had it right once. It is time to get it right again!”

America Needs an Eighteenth-Century Patent SystemPeople with money have access, as Google lobbyists have demonstrated time and time again. And those with the money typically tend to be those who commercialize the last mile, which in the innovation ecosystem means the point of view they generally have is rather skewed.

Instead of defining innovation as creating first generation, pioneering, paradigm shifting, disruption, those who commercialize the last mile, control manufacturing and distribution channels, view innovation as placing a different product or service offering in front of consumers. But if that product or service offering has previously existed it isn’t new, and different is not synonymous with innovative.

Everyone sees what they do as the most important piece of the puzzle. That is an undeniable part of the human condition. For those that control the final mile they control the final piece of the innovation life cycle — the sales — so it is hardly surprising that they think that is the most important piece. The trouble, however, is that to these giants of industry that control manufacturing and distribution and ultimately sales, they conflate innovation with the sale of something that is different, with different being defined based on their own previous product offerings, not based on whether it is truly unique, revolutionary, paradigm shifting, disruptive, or innovative.

There is no doubt that the final mile is a critical piece of the innovation life cycle, but to listen to the giants of industry tell their story of woe these multinational corporations are being held hostage by individual inventors, laid off engineers, university scientists who had the great fortune to stumble upon a remarkable discovery after a lifetime of research. In other words, average everyday Americans are the villains and the multinational giants that ship jobs overseas, refuse to repatriate trillions of dollars of earnings so they don’t have to pay taxes, increasingly automate so they don’t have to pay minimum wage workers, and constantly increase the prices of their products are the victims.

Call me crazy, but that just sounds stupid. Yet, that is the narrative that gained favor for reasons I simply cannot understand.

Often people will say that Thomas Edison invented the light bulb, but that isn’t true. What Thomas Edison did was invent the first ever commercially relevant light bulb. This doesn’t make Edison’s contribution any less impressive, but failing to remember the history does ignore the inventors who came before Edison who made the breakthroughs Edison built upon.

Would Edison have been able to invent the light bulb on his own without the work of those who came before him? Perhaps. Edison was an extraordinarily accomplished inventor, but it is impossible to say with certainty. Some might be willing to wager that Edison would not have invented the world’s first commercially useful light bulb without shoulders to stand upon, particularly given everything Edison focused on were improvements after the fabulously famous failure of several of his early, pioneering inventions. Perhaps after debate we might agree that Edison probably could have, or maybe would have eventually, but when? That is precisely why we have a patent system — to incentivize innovation today so we don’t have to wait for tomorrow, or whenever it might be convenient.

It is easy to minimize the contribution of another, but minimizing the contribution of an initial creator who doesn’t have a voice comes with great risk. And all too often that has happened over the past decade, and it has almost always happened with respect to the poor chaps who worked tirelessly to actually invent the light bulb and never receive any credit.

In 1790 America created a patent system that was accessible by everyone, so individuals and small entities could afford proprietary protection. The rights obtained could then be licensed to those that could manufacture and distribute. Everyone doing what everyone does best, not in some communist or socialist way, but in a property rights bases, capitalist system where rights could be owned with certainty and traded with certainty. That is what made the U.S. patent system unique, and it was that uniqueness that made the U.S. patent system great.

Many of those early inventors were individuals did not have as much as a high school education, and certainly did not have political clout.  Yet, George Washington and James Madison knew that good ideas and ingenuity were not confined to any particular socioeconomic class, which is why they purposefully created a patent system not confined to any particular socioeconomic class. It was affordable by everyone, and purposefully created to foster non-practicing entities, who then were just called inventors. It was expected inventors would license their inventions to those who could go the last mile.

We hear politicos so often proclaim that what America needs is a Twenty-First Century patent system. NO! America most certainly does not need a Twenty-First Century patent system. America needs an Eighteenth-Century patent system. The patent system our founding fathers created recognized the contributions made by everyone in the innovation ecosystem were important and necessary. We had it right once. It is time to get it right again!

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 17 Comments comments. Join the discussion.

  1. anonhistory April 13, 2018 11:45 am

    Gene,

    The early patent system was a disaster. It wasn’t until the 1836 Act that there was any meaningful protection for inventors. Lincoln’s famous “fire for the fuel of genius” quote was referring to the 1836 Act. Eli Whitney is a good example, who wasn’t able to enforce his cotton gin patents under the 1790 and 1793 acts. The public domain book “Patent Office Pony” has excellent background on the early patent office, with citations:

    http://www.myoutbox.net/popstart.htm

  2. B April 13, 2018 3:31 pm

    Gene,

    I have been one to criticize the U.S. patent system on a regular basis, and we both have issues with the SCOTUS’ holdings in Mayo and Alice. I absolutely agree that the holdings in those cases are problematic, and the fact pattern in Alice Corp. was ill-suited to make the point the SCOTUS made. Alice should have been addressed under s103 instead of s101.

    Alice and Mayo expand the exceptions to s101, but in reality in a very narrow fashion. It is possible to preempt a natural law even while reciting additional features. Originally, the additional feature(s) were nothing more than “apply it.” Now comes the issue: what if there’s only one way to “apply it,” and it’s claimed in a very general way?

    That said, big companies are the WORST of patent phonies, and Mark Cuban needs to take a long, hard look in the mirror with his anti-patent rants. The EFF is his retarded lapdog, and one needs only to look at EFF’s amicus in Berkheimer to see the stupidity of Cuban’s position.

    Something I’ve discovered recently: I did literally a ten minute check on a few of Cuban’s companies to discover a number of heinously-broad claims and *GASP* software claims.

    Check USP 9,433,363 assigned to Genetesis (a Cuban company), which reads on a Magnetoencephalography (MEG) device coupled to a computer doing software things to display electrical current density.

    Now see this business method done through software: USP 9,886,700 assigned to Metadata, Inc. (a Cuban company).

    See also, US 2014/0297235 and US 2017/0124925. The latter is amazing given that the first independent claim reads on a processing unit controlling a plurality “independently connected” light arrays. That literally reads on an every LED display on earth.

    No compare it to: https://arxiv.org/pdf/1407.0672.pdf

    The CAFC took narrow SCOTUS holdings and made a mess of things.

    , Alice is a bad s101 example. A good e

    With this in mind there are a number of bad patents that do nothing more than usurp old ideas

  3. B April 13, 2018 3:33 pm

    Oops – compare USP 9,433,363 assigned to Genetesis to: https://arxiv.org/pdf/1407.0672.pdf

  4. Night Writer April 13, 2018 3:48 pm

    @1 B >>Alice and Mayo expand the exceptions to s101, but in reality in a very narrow fashion.

    Wrong. Very wrong and ridiculous. Just look through the graveyard of dead claims from the PTAB and CAFC to know that this is a ridiculous statement.

  5. B April 13, 2018 3:59 pm

    “Wrong. Very wrong and ridiculous. Just look through the graveyard of dead claims from the PTAB and CAFC to know that this is a ridiculous statement.”

    Yes – but who killed all those patents? The CAFC and the PATB, which both IGNORED the SCOTUS’ requirement to “tread lightly.” It wasn’t even until Berkheimer that Judge Moore recognized this as a requirement to narrowly construe Alice/Mayo. My clients have suffered greatly due to the CAFC overreaching due to the CAFC ignoring evidentiary requirements and the entire preemption doctrine. The factual issues in both Alice and Mayo were determined by EVIDENCE. That said, when is the last time the CAFC or the PTAB mentioned “preemption” in a holding except when dismissing the concern by citing Ariosa?

  6. B April 13, 2018 4:05 pm

    Respectfully, Night Writer, the patent-cide you speak of is less the fault of the SCOTUS than the CAFC, the blundering PTAB and the USPTO’s Robert Bahr. Have you read Robert Bahr’s patent eligibility guidelines? They read like bad Cliffnotes by reciting a few basic facts of some cases while not discussing the important aspects of any single holding.

  7. Gene Quinn April 13, 2018 4:31 pm

    anonhistory-

    Fair point on Eli Whitney.

    What is, however, true about the 1790 and 1793 Patent Acts is that they were purposefully inventor friendly in that the patent system was approachable by everyday, real people. It was affordable to obtain a patent, and not the realm of the privileged as it had been in England. The Founding Fathers also very specifically and intentionally created a patent system that would create a class of patent owners that were non-practicing entities. So much of the fundamentals of America’s first patent laws and the purpose behind them were exactly on point even if the execution at times was flawed.

    See:

    http://www.ipwatchdog.com/2018/03/04/founders-americas-patent-system-affordable/id=94257/

    and

    http://www.ipwatchdog.com/2018/03/05/founders-foster-npes-patent-licensing/id=94255/

  8. B April 13, 2018 4:39 pm

    ” So much of the fundamentals of America’s first patent laws and the purpose behind them were exactly on point even if the execution at times was flawed.”

    I content that today the patent STATUTORY laws are fine (except for aspects of the AIA) in that the laws seek to demand a clear claim scope and be directed to original and not obvious inventions. Patent exclusion now is the fault of the CACF and PTAB with particular emphasis on the Reyna wrecking machine, and the inability of Robert Bahr to actually read the decisions he writes about.

  9. Ternary April 13, 2018 9:33 pm

    What we need is a 21st century Artificial Intelligence patent prosecution system. A sort of enhanced IBM’s Watson computer evaluation of a patent application that may assign a probability of obviousness. The higher the obviousness, the shorter the term of an issued patent. If the obviousness is greater than 50% the whole thing is rejected.

    One of the greatest problems with the current patent system is the arbitrary human hindsight evaluation. Almost everyone is aware of the fact that a PHOSITA being confronted with cited references would generally be completely unable to come up with submitted claims. (only Examiners can perform this impossible and miraculous trick, cheered on by technically illiterate courts).

    The amount of prior art has become too large and there is no turning back to the 18th century on this. Apart from being pro- or anti-patent, there is no reasonable way that all pertinent literature can be considered. Furthermore, there is so much related literature on certain inventions, that Examiners feel that “someone could have made a connection between basically orthogonal developments, for which they are supported by law and court cases.

    This is why inventors, confronted for the first time with a 103 rejection, are generally baffled by the “legal” reasoning in a 103 rejection and naively say that “nobody would do it that way.” They are technically right of course. But not legally.

  10. Luis Figarella April 14, 2018 7:50 am

    Gene:

    Entirely agree. But I am chuckling, for when when asked about what I do, I always mention I am in a 19th century business (3 months to respond to an OA, people develop beta products in 3 months!), BUT that the office of petitions, those guys are in the 18th century!

    That having been said, and after listening to Judge Michel’s at the PLI last week, the 21st century SCOTUS decisions have had MAJOR effects on where venture $$$ goes, and I am certainly telling my clients with AI/Data ‘technical solutions to technical problems’ to file in China/Europe as well as the USA (sure, 1st via a PCT because it is the smartest option for your $) if the exit strategy includes being bought in the short term.

    So if I could plead, leave the USPTO in the 19th century, but please make the case law from which the MPEP is distilled worthy of our great country, both in the 21st century and in the future.

    Lu Figarella
    Nashua, NH (where as you may know, we’re proud to state ‘Live Free or die’ in our license plates!)

  11. A Rational Person April 14, 2018 8:08 am

    Ternary@9

    Many of the problems with the current “legal” reasoning in a 103 rejection can be traced back to the Supreme Court’s atrocious decision in KSR. With the “teaching-suggestion-motivation” (TSM) test, the amount of “related literature” that could be combined was limited to the prior art that referred to each other or gave a reason that would cause a person of ordinary to look for the other piece of prior art.

    For example, unlike with the KSR “standard” with respect to a rejection properly based on the TSM standard, you could show why the prior art taught or suggested why “somebody would or should do it that way.”

    The KSR case effectively made it “legal” to combine prior art under 103 based on hindsight reasoning, which is why the KSR decision is so atrocious.

    The problem of “hindsight bias” is well known:

    https://en.wikipedia.org/wiki/Hindsight_bias

    But the boneheads on the Supreme Court ignored this problem in rendering their KSR decision.

  12. Night Writer April 14, 2018 11:24 am

    @9 and @11

    Really great points. I remember teaching computers to people back in the 1970’s and the genius boys and girls (i.e., the ones that were pre-med and pre-law) couldn’t figure out what an electronic menu was. And a hierarchical menu structure was also something that took days or weeks to learn.

    Another good point you are making is that the amount of prior art available is now huge. That should make it harder and harder to get patents.

  13. Gene Quinn April 14, 2018 11:52 am

    Luis! Great commentary.

    I suppose I’ll need to get back to this and revise it to acknowledge that it shouldn’t taken a patent examiner 2 years (in some Art Units) to pick up an RCE, or more than 6 months to send an Advisory Action (which can and does happen). What the USPTO considers compact prosecution is really rather protracted by any reasonable sense of what it means to be streamlined in a Twenty-First Century way.

  14. Benny April 14, 2018 1:41 pm

    Gene,
    great article. Differentiating “different” from “innovative” is a subtlety too many people don’t get.

  15. Poesito April 17, 2018 2:37 pm

    With the AIA, Congress has undone the “securing” specified in Article 1 Section 8 Clause 8 (such as it was) which defines a constitutional right, a property right, not unlike the establishment of “civil rights” in Amendments 1-10. When the government (at any level) acts in such a manner to impair or even to suggest an impairment of a civil right there is often an action filed in Distrct Court as soon as the next business day. So why not a class action suit on behalf of independent inventors and small entities who are effectively being denied the ability to have secured “the exclusive Right” by actions of all three branches of the USG?

  16. Joachim Martillo April 21, 2018 3:58 pm

    From ternary@April 13, 2018 9:33 pm
    Are you referring to the pathetic simulated intelligence that causes autonomous vehicles to kill people?

    Both current AI research and also autonomous vehicle development are driving full speed ahead into brick walls.

    I have been thinking about how to build an artificial system that has genuine intelligence since 1972. The technology is just arriving, and the knowledge base is almost sufficient.

    Another 20 years and $50-100 million in investment or in grants, and I could produce the alpha version of an artificial genuine intelligence.

    Anyway, like ternary I have certainly been confronted by obviousness rejections that have been outrageous.

    This is why inventors, confronted for the first time with a 103 rejection, are generally baffled by the “legal” reasoning in a 103 rejection and naively say that “nobody would do it that way.” They are technically right of course. But not legally.

    I have often wondered whether I could add a new Jepson claim based on the examiner’s “allegedly” obvious combination of prior art in order to show exactly what of my invention said combination is missing and renders my invention non-obvious.

    What do you think?

  17. Joachim Martillo April 22, 2018 3:11 am

    Gene Quinn@April 13, 2018 4:31 pm

    The AIA duplicates the inventor-unfriendly atmosphere of A Poor Man’s Tale of a Patent (October 19, 1850) and makes this atmosphere even more inventor-hostile.

    Thereby I say nothing of my being tired of my life, while I was Patenting my invention. But I put this: Is it reasonable to make a man feel as if, in inventing an ingenious improvement meant to do good, he had done something wrong? How else can a man feel, when he is met by such difficulties at every turn? All inventors taking out a Patent MUST feel so. And look at the expense. How hard on me, and how hard on the country if there’s any merit in me (and my invention is took up now, I am thankful to say, and doing well), to put me to all that expense before I can move a finger! Make the addition yourself, and it’ll come to ninety-six pound, seven, and eightpence. No more, and no less.

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