A little over a week ago, in a blog post written by Microsoft’s Deputy General Counsel Horacio Gutierrez started what will certainly become one of the most profound debates the patent and innovation industry has seen in a very long time, and perhaps the most profound debate that has occurred since Thomas Jefferson and James Madison argued whether the fledgling United States of America should grant strong patent protections or weak patent protections. Famously, Madison won the day convincing Jefferson that if the new nation wanted to encourage entrepreneurship, innovation and attract the best and brightest we needed strong protections. Jefferson was initially very skeptical, not wanting the US to turn into England, where patents were handed out as favors from the Crown to loyal subjects who were rewarded for being loyal or otherwise a friend to the Crown. Jefferson acquiesced and his views later substantially changed to the point where he realized that meaningful protections were indeed necessary and critical. This all could unravel before our eyes as a new push from Microsoft seeks to take patent harmonization to new heights with the ushering in of a global patent system and a global patent. The World Intellectual Property Organization will hold an international symposium in Geneva on September 17 and 18, 2009, which will focus on operational deficiencies in global IP systems.
This is no joke, and everyone who has an issued patent, has a patent application pending, is considering filing a patent application or works for, invests in or wishes to start a company based on proprietary innovations has a dog in this fight and must absolutely pay attention to what is about to happen. The stars are starting to line up and if those of us who know better and realize what a disaster it would be to have a global patent system, with one patent and harmonization of patent laws across the board do not stand up now it will likely soon be too late. The Obama Administration, far more than any other Administration in US history, is extremely and keenly interested in ushering in changes to the American system and the American way of life that would make us much more like European countries, and countries that quite frankly have long held beliefs that are antithetical to the American way of life. So while in times past when harmonization rhetoric would start surfacing, things are substantially different now and we simply cannot ignore the reality that the political climate may well be ripe enough to completely and totally undercut US innovation policy, which would be a tragic disaster for the US economy, which is with every passing day more and ore dependent on innovation and intangible assets
Global patent harmonization is not just wishful thinking about an ideal patent system. Rather, it is a necessity if national patent authorities are to overcome the substantial difficulties they face.
The logical next step is to accelerate the work underway to align patent approval procedures and application formats, including a common digital application, and to collaboratively set standards for patentable subject matter, adequacy of disclosure and enablement requirements, and the completeness of the examination record. Bold action is needed. Stringent criteria must be established and clearly understood so patent search and examination results can be accepted by patent authorities around the world.
Let’s not mince words here. This is code for the US needs to change its patent laws and become like the rest of the world, which is an extraordinarily bad idea with extreme consequences.
I have never been a fan of harmonization, and undoubtedly many will take what I say with a grain of salt. That is fine, and to be expected. The reality, however, is when it comes to patent harmonization the debate is always about how the United States can, should and/or must change its patent laws to become more like the rest of the world. There is never any discussion about whether what the rest of the world is doing makes any logical sense, rather only that the US is different and needs to come into line. Whether you like me, whether you agree with me and whether you are a fan of harmonization or not, everyone must realize that change for the sake of change, change to just become like others and for no other logical reason, is asinine! What every parent knows inherently — just because your friends do it doesn’t mean you should do it — is simply ignored and treated as if it is irrational when debating international policy and harmonization. If you do not understand that logic and reason must play a role in the debate then you are a part of the problem and the rest of us need to be the solution.
Lack of logic and rational thought simply cannot be tolerated when such change would cripple the US economy and lay waste to our way of life. If we are going to have a debate about what global patent law should be then bring it on and lets talk openly and honestly. The Europeans by and large have no interest in such a debate because they simply want us to capitulate and do what they do. Why in the name of all that is sane would we ever want to be like Europe? A loose confederation of states that claim to have one body of harmonized laws that are interpreted differently in each member country? Is that what we should aspire to? Of course not. We also should not aspire to losing high tech industry that needs to be based on intellectual property rights either. It should not come as a shock to anyone that, for example, the pharmaceutical industry is the strongest where the intellectual property laws are the strongest, and that is NOT Europe. Even as pharmaceutical companies in India become stronger and a larger part of that economy the laws are changing, which will only continue because growing countries actually understand that they need to protect their industries if they are going to grow, something that Europe either never knew or has long since forgotten.
Once again, let’s not mince words. We do already have a global patent system and global harmonization of patent laws. The United States patent law and patent system is the default standard because everyone wants a US patent. Does anyone actually get a patent in France? Does anyone actually get a patent in Spain? Does anyone want a patent in Columbia? I couldn’t tell you because the market in those places, and virtually everywhere outside the US is so small it would be crazy in most instances to even file a patent application in those and about 125 other countries. The reality is that if we want a global patent system all we need to do is negotiate with the British and the Japanese and we are practically there. Add South Korea and Germany and as far as I can tell the relevant innovation community is almost completely represented.
Allow me to also recognize that what Microsoft wants is to kill software patents so that they cease to be punished for infringing patents owned by substantially smaller businesses who had the audacity to invent first and seek a patent. How dare they! Really, what where these companies thinking? Didn’t they get the memo that Microsoft and their tech giant brethren are not to be questioned and certainly not to be sued. That is what this is all about, at least from this side of the pond.
Allow me to also point out that on the blog post that presented Microsoft’s position, namely the position announced by Gutierrez, one of the early comments was this:
I’d be for it if:
1) Patents only last 7 years or less
2) Software cannot be patented
3) Standardization of patent royalties is developed as well
Now we all know there are a lot of crazies out there that don’t allow a lack of knowledge or complete failure to understand to at all diminish their apparent god-given right to spew nonsense on topics they know nothing about. Having said that, it would be a mistake to consider this comment to fall into that category. There are those all around the world who either want no patents, or patents of extremely limited duration. There are many who become apoplectic at the thought that software could be patented. And there are plenty who think that if patents are to be granted there needs to be mandatory licensing for the good of the people. Never mind that taking profit out of innovation means there will be no innovation. Some would rather have no innovation if having it means that there is not universal freedom to use said innovation for free. This is mainstream thinking from a lot of very smart, influential and intelligent people.
Obviously, even smart, influential and intelligent people can and do get things wrong, but we cannot afford to simply treat them like the many crazies who are on the Internet or in real life. Public sentiment can be swayed, and politicians have the perpetual and incurable syndrome associated with having absolutely no spine. Once public sentiment turns it will be over. That is what the ACLU is trying to do with its frivolous lawsuit against Myriad Genetics, this is what the fear mongers are trying to do with respect to follow-on biologics, it is what the anti-patent crowd is trying to do with software and you can see the stars coming into alignment politically as the health care debate in the US needs to focus on cost reduction. That means those who innovate are going to get squeezed, which means less innovation, fewer vaccines, less live saving drugs. Of course, spineless politicians don’t really care about the future. The future for them is the next election cycle and making bad long term decisions is a way of life in governments all across the world.
I suspect this will be the first test of David Kappos. If he aligns himself with the interests of Microsoft, supports WIPO and other international attempts to force US patent law to abandon our principles and does not stand up for small businesses and independent inventors who will be destroyed by harmonization, we are in for a long and troubled few years. You see, international patent law favors the giant mega-corporation, not independent inventors, small businesses and start-up companies. In the US 70% to 80% of people are employed by small businesses, and as Bruce Springsteen famously says in My Hometown, which incidentally is also my hometown as well – Freehold, New Jersey – the manufacturing jobs are gone and they are not coming back. A global patent system and watering down of US patent laws is not just a bad idea, rather is would be a catastrophe. I just hope Kappos et al really understand and appreciate what the US and US economy would be with European patent laws.