Lincoln loved our patent system, Let’s not tear it down

By Joseph Allen
November 22, 2015

EDITORIAL NOTE: This article is adapted from the original version appearing in The Washington Post on November 16, 2015. It is published here with permission.

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Abraham Lincoln. The only U.S. President to be awarded a patent.

Abraham Lincoln once called the patent system one of the three greatest advances in human history, along with the discovery of America and the printing press. The U.S. was the first nation to allow commoners to own patents. Having a patent allowed the Wright brothers (two humble bicycle mechanics from Ohio) to beat Dr. Samuel Langley, their government-backed rival, to become the first to fly — and land — a heavier than air machine. Before then planes went up, but few walked away when they came back down.

Patents give inventors the right to control how their discoveries are used in exchange for telling the public how they work. This bargain increases knowledge and drives modern economies. Patents are supposed to shield entrepreneurs from having their inventions stolen by powerful competitors, but modern inventors now face a system that has broken its pledge. Rather than addressing the underlying problems, the pending patent reform legislation tilts the system even further against inventors.

If a patent cannot be effectively enforced, it has little value. Courts have made it almost impossible for patent owners to obtain injunctions that can stop the sale of products that infringe upon their inventions. Giant corporations employ “efficient infringement” strategies knowing they can make big money pirating patents, even if they get caught. Because it is so hard to recover damages, lawyers are often unwilling to defend inventors on a normal contingency fee system, and instead insist upon being paid up front for the considerable costs of an infringement trial.

It’s a grim world if you’re an American inventor hoping to safeguard your work — and it’s getting grimmer.


Congress has established an administrative process at the Patent and Trademark Office known as inter partes reviews to evaluate contested patents. Ironically, the same Office that awards patents does not assume they are valid in this review. Some call the process a “patent death squad,” because it strikes down 77 percent of the patent claims it reviews. It also drains badly needed cash from entrepreneurs: each review costs anywhere from $200,000 to over $1,000,000. Even if the patent is upheld, innovators lose time and money, commodities desperately needed to commercialize their inventions. It’s no wonder that a company’s stock can tank overnight if an IPR is filed against its patents.

Even worse, unscrupulous parties from around the world can initiate IPRs using fraudulent or deliberately misleading information without fear, because patent owners are prohibited by a court decision from suing to recover resulting economic damages.

You might think these issues would be the focus of Congressional patent reform efforts — but you would be wrong. Intead, Congress is fixated on “patent trolls,” noxious, ill-defined entities threatening Mom and Pop retailers with bogus infringement suits unless they’re paid off. Tragically, the proposed solution harms legitimate patent owners more than trolls.

The latest patent reform bill in the House, called the Innovation Act, would force patent owners to pay their opponent’s legal bills if their infringement suit proved unsuccessful. This gives big businesses a formidable tool with which to intimidate inventors from enforcing their patents, as there’s always a chance that any lawsuit will fail. The expense of paying the legal fees of a giant corporation would bankrupt most small companies.

Compounding the problem, the legislation also makes those who back patent-based companies liable for these costs. This could be the death knell for university spin-off companies. Venture capitalists and angel investors would have to think long and hard before putting money into startups built around a patent. What inventor would go to their friends and family for support to launch a company knowing this sword hangs over their heads?

The result is a patent system in crisis, which threatens our economic future. Small businesses received 30 percent of U.S. patents in 2000. Last year the number plummeted to 19.5 percent. Small companies undertake the risk and expense of developing breakthrough technologies that made us the most prosperous nation in history. When they lose confidence in the patent system the country will suffer.

Emblazoned on the side of the Department of Commerce facing the White House are Lincoln’s words: “The patent system adds the fuel of interest to the fires of genius.” If we allow that fuel to rot, we will have no one to blame but ourselves. We would be better advised to restore the patent system that Honest Abe loved so much.

The Author

Joseph Allen

Joseph Allen is a Featured Contributor on IPWatchdog.com, and a 30-year veteran of national efforts to foster public/private sector commercialization partnerships, and author of numerous articles on technology management for national publications.

Joe served as a Professional Staff Member on the U.S. Senate Judiciary Committee with former Senator Birch Bayh (D-IN), and was instrumental in working behind the scenes to ensure passage of the historic Bayh-Dole Act. He is our resident Bayh-Dole expert, and will write frequently about Bayh-Dole and issues surrounding the commercialization of university research.

In 2008, Joe founded Allen & Associates, through which he offers consulting services assisting clients in technology transfer issues, including developing effective communication strategies with national policy makers.

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 11 Comments comments.

  1. Paul Morinville November 23, 2015 12:53 pm

    Joseph, I wish my pen was just half as sharp as yours.

  2. Anon November 23, 2015 6:27 pm

    Too late.

  3. angry dude November 23, 2015 8:40 pm

    Well, I am a pessimist as well…

    The World is not becoming “a better place” – it is entering a new era of being more globalized and interconnected and, at the same time, more divided than ever before…
    Patents have no place in this new world

  4. Night Writer November 24, 2015 7:42 am

    >>Patents have no place in this new world

    The big key difference is the rise of the giant multi-national corporation (and banks.) Anti-trust law should inform us of what is happening to patents. The SCOTUS believes what is good for big international corporations is good for the U.S. And corporations like Google want monopolies.

    You know the game right? The game is the big international corporations are no longer tied to one country. So, the game is to say, you do what we say US or we’ll move our operations to another country. That is what drives all of this as well as K-street.

  5. Eric Berend November 24, 2015 9:09 am

    It is getting to the point where I feel that my invention as to substantially increased wind and water power efficiency, should go the way of ‘Greek Fire’.

    The whole charade amounts to one thing, period: STEALING GENIUS for NOTHING.

  6. Night Writer November 24, 2015 9:37 am

    http://www.greencarreports.com/news/1101105_tesla-ceo-musk-seeks-hardcore-engineers-to-beef-up-autopilot-software

    I think self-driving cars are interesting test case for patents. It is interesting in that big corporations are building research labs and hiring lots of engineers. So, there are a couple things going on. Will the tough patent environment mean that start-ups won’t get funded to compete with the big corporations? Will the tough patent environment mean that the big corporations hide what they are doing?

    This is interesting particularly because everyone knows there is a giant economic prize to getting this to work.

    The universities are also getting money for research. And, another interesting about this is that almost all the innovation is software.

  7. angry dude November 24, 2015 11:18 am

    Night Writer@6

    Self-driving cars are all about robust algorithms – AI if you want

    You can execute them on general purpose CPUs (easy to steal)
    OR
    you can hide them inside custom-made ASICs or secure-booted microprocessors with code protection (hard to steal)

    Methinks it’s gonna be the latter

  8. ming November 24, 2015 8:47 pm

    Patents are only good for big huge corporations.

  9. Gene Quinn November 25, 2015 9:34 am

    Ming-

    You have it exactly backwards. Big companies have their size and own the distribution channels, so patents are really less important. Patents are only important for a big company for defensive purposes and to defend a market from an equally large entrant.

    On the other hand, patents are absolutely essential for small business and start-ups. Overwhelmingly investors require patents before investing. It is already very difficult, if not nearly impossible, to obtain investment for a business start-up. Without a patent position that already extremely difficult task becomes even more difficult.

    Patents are also a great equalizer and are used by individuals and small enterprise to protect them from being bullied by larger entities.

    -Gene

  10. step back November 26, 2015 8:54 am

    Gene @9,

    Let’s not get too extremist here.

    There are many cases where one should advise clients to NOT get a patent.

    For many a mom and pop tiny business enterprises it is usually not worthwhile to spend time and money on a patent. For example if one comes up with a short-lived novelty gadget whose market will arise and die in less than 3 years and the value of the whole market is no more than a couple of million dollars, it does not make economic sense to file for a patent.

    On the other hand, even if you are a solo inventor, if you objectively believe your invention will have a total market value of way more than a couple of million dollars and will have utility extending beyond the next 3 years, you would be foolish to at least not consider getting a patent. Consult with your local patent attorney in the confidential chambers of his office, not here in the open on the internet.

    Happy Thanksgiving to all non-xenophobic Americans out there. (The Pilgrims came as refugees –and without the proper papers.) 🙂

  11. Gene Quinn November 27, 2015 2:28 pm

    Step-

    The decision to seek a patent is complex and hard to give general advice in any meaningful way. You are certainly right when you say if the gadget has a very short life span getting a patent probably isn’t the smartest move, but that doesn’t necessarily mean that applying for a patent isn’t a smart move.

    While patent attorneys will no doubt not like the title of Stephen Key’s books, his books are definitely worth a read for any aspiring inventor. He preaches the use of provisional patent applications as a way to get the foundation of some protection laid early in an economical way. He is a business man who has made money doing exactly what he preaches, and if you can get beyond the titles and get to the substance I think most would agree that his advice is quite sound.

    http://www.ipwatchdog.com/2011/06/10/one-simple-idea-turn-your-dreams-into-a-licensing-goldmine/id=16315/

    http://www.ipwatchdog.com/2012/11/14/discussing-startups-entrepreneurship-with-author-stephen-key/id=29941/

    http://www.ipwatchdog.com/2015/11/14/sell-your-ideas-with-or-without-a-patent/id=63217/

    Cheers.

    -Gene