Charles H. Duell was the Commissioner of U.S. patent office in 1889. Commissioner Duell is widely quoted as having stated that the patent office would soon shrink in size, and eventually close, because…“Everything that can be invented has been invented.”
If anyone anywhere on our planet espoused the view that there is nothing left to invent today, he would be unceremoniously laughed out of the room. The notion that innovation continues to change the world is nearly universally accepted. Even Karl Marx said, “The only constant is change.” However, such troglodytian sentiments are fodder for endless reflection at the United States Patent and Trademark Office.
Patent examiners deem inventions to be “abstract” if they are too revolutionary or “obvious” if the invention is less than revolutionary. Those patent applications that survive such prosecutorial rejections are likely to be clipped if they become subject to inter partes review challenges. For example, in Ex parte Hiroyuki Itagaki, the Patent Trial and Appeal Board ruled that a magnetic resonance imaging (MRI) machine is an abstract idea and thus patent ineligible.
I can largely understand the merits of rendering laws of nature and natural/physical phenomena ineligible for patent protection. (There is, however, tremendous room for clarity as to what exactly is patent eligible.) But I cannot understand the logic of rejecting patent applications because a series of people skilled in the art could have (should have or would have) sequenced their knowledge in a manner similar to the applicant but never did so.
Suppose Mrs. Johnson from San Diego, California assigned all of her third-graders with the task of writing an eight-page term-paper. Little Johnny worked diligently preparing his term paper on autonomous automobiles, the driver of his imagination. Reading and writing were never easy for this dyslexic child. Nevertheless, he preserved. When the other little San Diegans were immersed in playing Fortnite and grazing on Doritos, little Johnny spent hours researching, composing, editing and proofreading his eight-page report.
His labors bore fruit: Little Johnny received an “A” on his report. The teacher was so impressed with little Johnny’s term paper that she praised him in front of his classmates. Mrs. Johnson seized the moment to motivate the thirty eight-year olds under her care. She told the students, “With enough hard-work and focus high hurdles can be overcome. To achieve goals, sacrifices are often required. Research leads to learning. While learning is a reward in itself, learning acts like compound interest; the more you know, the further you can go.” While all of the eight-year olds understood Mrs. Johnson and committed to work harder in school, a cabal of their parents unsheathed their swords.
Just a few days before Johnny’s teacher issued her report cards the father of one of little Johnny’s classmates—who believes that issuing different grades to different students is inherently unfair and classist (or in his mind, even smacks of racism)—protested Johnny receiving an “A” on his paper to San Diego’s School Board. This academic redistributionist made his case for depriving little Johnny of his “A” by arguing that little Johnny’s paper was obvious in view of:
Page 1 sharing similarities in terms of brakes with a report prepared in 1972 in Spanish by little Carlos in Chile;
Page 2 sharing similarities in terms of gas pedals with a report prepared in 1931 in Arabic by little Fatima in Jordan;
Page 3 sharing similarities in terms of seats with a report prepared in 1868 in Russian by little Svetlana in Russia;
Page 4 sharing similarities in terms of doors with a report prepared in 1903 in Japanese by little Hinata in Japan;
Page 5 sharing similarities in terms of mirrors with a report prepared in 1982 in Greek by little Konstantinos in Greece;
Page 6 sharing similarities in terms of a boomerang with a report prepared in 1957 in Swahili by little Barongo in Kenya;
Page 7 sharing similarities in terms of motion detection sensors with a report prepared in 1961 in Korean by little Seo-hyeon in South Korea; and,
Page 8 sharing similarities in terms of an antennae with a report prepared in 1995 in Hebrew by little Nimrod in Israel.
Perhaps because a posse of parents primed to pounce to revoke little Johnny’s “A” by waging multiple attacks on that child’s work product, the San Diego School Board accepted the father’s petition. The Board overlooked the fact that none of the children cited above produced a term-paper even faintly resembling little Johnny’s in its entirety. They also skirted the issue that even if all of the other children wrote their papers in English, those papers still couldn’t possibly flow together as seamlessly as little Johnny’s paper. The narrative just wouldn’t work. Nevertheless, the School Board agreed with the initial petitioner and rescinded little Johnny’s “A”. Mrs. Johnson was threatened with removal from her position should she ever again dare praise a sham creator. Little Johnny’s parents were forced to pay the costs of the hearing.
This litany of events sapped little Johnny’s creativity and motivation. The librarian become less helpful to little Johnny and his friends no longer agreed to review his writing. Little Johnny’s writing abilities showed so much promise but were extinguished before his work saw the light of day.
It is irresponsible for adults to give children who fail to complete their work credit based on the excuse that the children could have, should have, would have completed their assignments. It is much more inequitable for the U.S Patent Office to deprive inventors of the credit they deserve (in the form of patent allowances) because some conjured up combination of disconnected individuals—who have little, if any, temporal or linguistic ability to communicate with one another—could have, should have, would have eventually produced the claimed invention.
This is article is an excerpt from The Plight of the Patentee.
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