Eleven score and four years ago, on April 10, 1790, our Founders brought forth our patent system, an institution designed to promote progress in the fledgling nation called America. See First U.S. Patent Laws. Despite its value to our country, 224 years later, that system is under attack.
Until the late 18th Century, innovative colonists in the Americas relied on British-based patent laws to obtain Colonial patents. In 1790, however, American citizens could obtain a patent under the new U.S. patent system. George Washington, in his first Message to Congress on the State of the Union, stressed the importance of a patent system, in which he promoted “the expediency of giving effectual encouragement as well to the introduction of new and useful inventions from abroad, as to the exertions of skill and genius in producing them at home.”
A successful country needs new ideas and businesses. Our patent system provides the carrot to attract innovation by granting a 20-year period of exclusivity. But the inventor must pay a price for this right: full disclosure. He or she must reveal every detail about the invention, and, after 20 years of development, promotion and profit, the scientific and technological knowledge in that innovation enters the public realm for all to use. Our Founders recognized that patent rights, although very strong, are also short-lived and serve a greater public purpose.
Over the past two centuries, the patent system has operated like a faithful and sturdy machine powering our great nation. The engine requires tweaking on occasion, and has been under attack since its inception. However, the strength of our patent system is the envy of much of the world. Innovation flourishes here and inventors thrive in our competitive environment, thanks to our robust patent system.
Technological innovation used to be a relatively slow process, often requiring many years of product development and testing. The length of patents and their use were far less controversial. As technology accelerates, however, many now condemn the patent system for stifling innovation.
The Wright Brothers were once condemned for relying on patents and accused of hindering aeronautical innovation in the early 20th Century. Eerily similar to today, these “small inventors” were attacked for protecting their intellectual property. Others, far more financed, failed miserably for years. Suddenly, two upstarts from Ohio turned the world upside down by demonstrating that heavier-than-air flight was possible. The Wrights protected their works with patents and litigations, and the also-rans attacked them for stifling airplane technology. Had the term been used then, the Wrights would have been called trolls.
In 2011, at the behest of large corporations with well-founded lobbyists, the White House and Congress, major changes were made to the patent system in the America Invents Act. Now, two years later they insist on further patent reforms. Despite the societal benefits of the patent system, some companies are intent on abolishing our system in order to stop patent litigation against them. This is like getting rid of medical malpractice claims by getting rid of doctors. The draconian proposals in bills now before Congress and rules being promulgated within the United States Patent & Trademark Office may seriously undermine the entire patent system. In a country whose financial stability is vested in the creation of ideas, instead of products, even seemingly small changes can have overwhelming and serious consequences.
Despite the percentage of patent lawsuits remaining stable for decades, the lobbyists and others claim that the patent system is running amok, and that there is a scourge of new patent litigations filed by patent trolls. As with all litigation, including patent litigation, the parties may play rough in this battle, and those with the most money can play rougher. Indeed, patent suits among major players can range in the millions of dollars. Sanctions for abusive litigation behavior, e.g., the inappropriate assertion of a patent or bad conduct of a defendant, are already governed by statute, where attorney fees and costs can be shifted to the abuser. Yet, lobbyists wish to make fee shifting practically mandatory and otherwise interfere with patentees asserting their lawsuits, all patentees, whether worthy or not. The individual inventor, without funding or reasonable contingency opportunities, will be outgunned by large corporation attorneys and money, eager to push their heavy fees onto the patentee plaintiffs. Thus, individual inventors, small companies, universities, and others will be thwarted in the protection of their rights in a lawsuit, no matter how much they are aggrieved. As is readily apparent, this radical change will transform the nature of litigation, and penalize all patentees, not just the few that are arguably abusing the system.
Did the Wright Brothers, ostensible patent trolls, deserve their fame? Few doubt this. Patents helped them and many other famous American inventors maintain their relevance in the face of stiff competition. Nowadays, some argue that it is preferable to just focus on keeping the market advantage with continuous innovation instead of patenting. This is fine for large corporations, but a great difficulty for the small inventor. As Eric Schmidt, CEO of Google, spoke about on 60 Minutes, true innovation does not come from the large corporations. Instead, it is some “graduate student” or “crazy person” that makes change, such as the obscure Wright Brothers warping the airplane wings to control flight. Without a patent system, innovators and inventors from all walks of life will be unable to safeguard their intellectual property and profit, violating a central tenet of the patent system. Penalizing the poor students and the visionaries by hindering their chance to protect their technological advances in patent litigation is not justifiable and is not right. Legislation making fundamental changes to the law to thwart innovators (and their backers) getting their say in court is highly suspect and perhaps unconstitutional. Further, in a time when Americans have lost countless manufacturing jobs and have retooled, it does not make sense to weaken something at which Americans are good: innovating and inventing.
Our patent system is a modern marvel. Despite its age, it has served us well and will continue to do so. We should honor it every year and endeavor to live up to the ideals of our Forefathers who created it. As Abraham Lincoln said, the patent system adds “the Fuel of Interest to the Fires of Genius.” If the White House and Congress keep fiddling with the patent engine and deprive it of fuel, our forges of constructive creativity may die out. Both Washington and Lincoln favored strong patent protection for all Americans, not just rich Americans or corporations. Our patent system is now being challenged by special interests, devoid of respect for our national treasure. Our Founders crafted our patent laws, placing them in the Constitution as a means to encourage the progress of useful arts.
In a year our patent system will be 225 years old, another milestone. With the ongoing serious challenges facing our patent system, threatening to derail the dreams of our Forefathers, I thought it best to celebrate a year in advance.
About the Author
Raymond Van Dyke is an IP/patent practitioner, educator, author and speaker on numerous intellectual property and technology issues. He is an Adjunct Professor at Southern Methodist University, the Greater Washington, DC Chapter Chair of the Licensing Executives Society, Chair of the Intellectual Property Committee of the Montgomery County Bar Association, and active in other organizations. He is licensed in DC, Maryland and the USPTO, and admitted in the U.S. Supreme Court, Federal Circuit and other courts. He founded the firm Van Dyke Law five years ago, after practicing for twenty years in big firms. His practice involves all facets of IP, with a focus on patent, prosecution, advocacy, licensing and consulting. He recently testified on the Attributable Ownership issue at the U.S. Patent & Trademark Office, and keynoted at an Indian IP Conference.