There was a lot riding on Alice v. CLS Bank, and the Supreme Court got it wrong. There is no point in sugar-coating it, or pretending that everything will be alright. The Supreme Court is openly hostile to patents, and increasingly so is the Federal Circuit. Simply stated, strong patent rights are an absolute prerequisite for a high tech economy.
It is a sad realization, but we are indeed at a point were commercially viable claims worth litigating are virtually assured to be invalid claims. Until this changes the economy suffer in due course. After all, it isn’t the copycats who create new things. Copycats copy and innovators innovate. You cannot infringe patents owned by an innovator and claim that because the product is new to you it is an innovation. NO! It is merely new to you and a rip-off from the true innovator.
On the very same day that the U.S. jobs report shows unexpectedly weak growth, the Federal Court of Australia issued a ruling directly opposite to the ruling rendered by the United States Supreme Court relative to gene patents. In Yvonne D’Arcy v. Myriad Genetics, Inc., the Federal Court of Australia ruled that Myriad’s claims to isolated DNA are patentable under the laws of Australia. That is the correct ruling, and it is the ruling the U.S. Supreme Court should have reached in Association of Molecular Pathology v. Myriad Genetics. As the patent eligibility laws of the U.S. become increasingly inhospitable to high-tech innovative businesses we can expect more job losses and worse news for the U.S. economy on the horizon.
In Joe Allen’s recent column Does Innovation Lead to Prosperity for All? he ended with a quote by Alexander Fraser Tyler from The Decline and Fall of the Athenian Republic, which suggested that a democracy cannot continue to exist once the majority realizes they can vote for candidates that promise a never ending stream of benefits. Eventually, the result of politicians handing out money and benefits for votes leads to a collapse as the result of unsustainable fiscal policy. Allen quizzically ends by stating that this couldn’t ever happen in the United States, could it? Sadly, we know it is happening in America.
Saying the United States has a spending problem is an extraordinary understatement, but spending continues. The public demands spending and so many people now erroneously believe that the way to improve the economy is for the government to spend ever more sums while at the same time regulating business like never before. Taking the foot off the throat of the private sector and reducing government spending has been a time tested and effective way to stimulate activity, create jobs and improve the overall economic condition of the U.S. economy. So there is an extreme disconnect between historical reality, what the people want and the policies America is pursuing.
There’s a famous Chinese curse “May you live in interesting times” which certainly applies now. It seems that every cornerstone we’ve relied on has slipped, creating instability in all aspects of modern life. As humorist Ogden Nash remarked: “Progress might have been all right once, but it has gone on too long.”
We live in a world where seemingly everyone has a cell phone —and a rifle. Every day we learn of breathtaking scientific discoveries and atrocities straight from the Dark Ages. Thanks to technology images of beheadings travel instantly around the world.
Debates rage over hot button topics widening divisions in society. One is over the merits (or demerits) of the patent system. That’s really a subset of a larger question: does innovation lead to prosperity for most people or does it merely widen the gap between the haves and have not’s?
What, if anything, should be done to correct “income inequality” is a point of contention in our political system. President Obama says that growing income inequality and a lack of upward mobility is “the defining challenge of our time.” Sen. Elizabeth Warren (D-MA) ads: “Trickle down (economics) doesn’t work. Never did.”
By and large we are exporting our intellectual property so foreign companies and subsidiaries around the world can engage in manufacturing. Unfortunately, when manufacturing exits a country R&D funding dwindles in direct response, thereby creating an enormous problem. This has been and will continue to be an acute problem for the United States moving forward. With countless manufacturing jobs already gone what the American economy thrives on is intellectual property, particularly in the form of innovation.
This is an issue that has come to mind are the result of a recent article in POLITICO titled As factories die, income gap grows. This article starts by telling the tale of a married couple from Reading, Pennsylvannia, Dave and Barbara, who back in 2008 were making $22 and $19 an hour respectively working for Baldwin Hardware, a unit of Stanley Black & Decker Corp. Layoffs came, long term unemployment followed, and now the couple are among the tens of millions of Americans who are under employed. They had to run through all their retirement savings to stay afloat, and now they each make $10 an hour; Dave as a janitor and Barbara cleaning houses while she looks for something permanent.
The American story of lost manufacturing jobs dates back for decades. Bruce Springsteen’s song My Hometown, which is actually about my hometown of Freehold, New Jersey, immortalized the tale of a textile mill closing down, jobs leaving and never coming back, which leads to vacant stores throughout the town. The line ? Foreman says these jobs are going boys and they ain’t coming back” ?has proved to be eerily prophetic, repeated in once thriving manufacturing and industrial communities all across America.
On Monday, August 5, 2013, the the Association of University Technology Managers (AUTM), a nonprofit association of academic technology transfer professionals, released the highlights of the AUTM U.S. Licensing Activity Survey: FY2012. The AUTM survey shares quantitative information about licensing activities at U.S. universities, hospitals and research institutions.The full report is scheduled for release at the end of the year.
The highlights of the survey reveal that University licensing and startup activity continued to see a robust increase during fiscal year 2012.
Institutions responding to the survey reported $36.8 billion in net product sales from licensed technologies in fiscal year 2012. In addition, startup companies formed by 70 institutions employed 15,741 full-time employees. This was the second year in which AUTM asked questions specifically targeted at ascertaining the economic impact of academic technology transfer.
President Lincoln was an independent inventor and patent owner.
Historically, innovation by individual inventors has driven our economy by creating new jobs and companies. Consider the names of some individual inventors who ultimately formed companies to exploit their ideas, but who initially manufactured nothing: Westinghouse (air brake), Ford (car), Gillette (razor), Hewlett-Packard (oscillation generator), Otis (elevator), Harley (motorcycle shock absorber), Colt (revolving gun), Goodrich (tires), Goodyear (synthetic rubber), Carrier (air treatment), Noyce (Intel), Carlson (Xerox), Eastman (laser printer camera), Land (Polaroid), Shockley (semiconductor), Kellogg (grain harvester), DuPont (gun powder), Nobel (explosives), the Wright brothers (aircraft), Owens (glass), Steinway (pianos), Bessemer (steel), Jacuzzi (hot tub), Smith & Wesson (firearm), Burroughs (calculator), Houdry (catalytic cracker), Marconi (wireless communication), Goodard (rocket), Diesel (internal combustion engine), Fermi (neutronic reactor), Disney (animation), Sperry (Gyroscope), Williams (helicopter), even Abraham Lincoln who was granted U.S. Patent No. 6,469. These are individuals who, in most cases, worked alone, without government or corporate support, yet, created not just new inventions, but whole new industries that employ millions of people today.
It can be argued, of course, that most of these inventors ultimately created manufacturing companies and that companies who merely buy patents from individual inventors contribute nothing. That seems to be much of what you are hearing. But what about small companies that are struggling to compete against corporate giants and need a strong patent system to level the playing field? As the inventor of the MRI scanning machine, Dr. Raymond Damadian, observed, it’s the small companies (not giants that ship their jobs to India and China) who provide the economic spark for new jobs in America.
Earlier today Cornell University, INSEAD, and the World Intellectual Property Organization (WIPO) released the rankings for the 2013 Global Innovation Index. Switzerland and Sweden remain #1 and #2 respectively, but the United States jumped 5 places to #5.
According to the report, the United States benefited from a strong education base, with many top-ranked universities. Additionally, over the last year the U.S. has seen significant increases in software spending and employment in knowledge-intensive industries. The U.S. was last in the top 5 of the Global Innovation Index in 2009, when it placed #1.
There was also good news for innovation in general, which is alive and well despite the global economic crisis, which drags on. The report explains that “[r]esearch and development spending levels are surpassing 2008 levels in most countries and successful local hubs are thriving.”
Senator Birch Bayh (right) with then Staffer Joe Allen (left) in a Bayh-Dole Act hearing in 1980.
As I sat there this morning having breakfast and drinking my coffee I was reading Innovation, which has as its tag line America’s Journal of Technology Commercialization.
Really? I find it impossible to believe that a magazine that purports to be a journal of technology commercialization would publish the complete and utter nonsense that I read this morning.
Newsflash… Bayh-Dole is objectively positive and has been extraordinarily successful in its mission. The FACTS are overwhelming. Anyone who suggests Bayh-Dole is anything other than successful beyond anyone’s wildest dreams is simply not being honest and is ignoring factual evidence. Indeed, detractors frequently make arguments that fly directly in the face of facts. Many believe they simply lie or make up what they are saying to forward their own agenda.
Design patent applications have experienced continuous growth for the past decade. Patent offices worldwide reported 344,700 new applications in 2004 and 775,700 in 2011. In the most recent years, the growth of design applications has accelerated, with a rate of 13.9% growth in 2010 and 16% in 2011. Of the top 20 origin countries, which are defined as the countries of residence of design patent applicants, nearly all saw growth in 2011. This trend reflects the overall growth of patents and trademarks, which reported a record year across the board. Despite economic uncertainty in recent years, IP growth has persisted.