The Moral Dimension of U.S. Patents

By John White
April 9, 2020

“What is and is not patentable is not about morality; how and when rights are enforced and under what circumstances is when morality comes into play.”

Morality - https://depositphotos.com/45342241/stock-photo-good-outweighs-evil.htmlWhenever a national emergency sweeps through, the question of patents is tangentially swiped at in the context of whether any patents will have to be “broken”, or compulsory government licensing regime initiated, to eliminate any roadblocks to a national or global solution. And, just for good measure, another rock or two is hurled at “patents” using the common epithets: monopolistic, greed of patent holders, profiteers, etc. None of it is true; but that doesn’t stop those who are anti-patent from trying. It happens every time: Anthrax/Cipro; HIV/antiretrovirals (43 different FDA approved drugs by 2017, BTW); etc.

Patenting is in the Public Interest

When I was a relative newcomer to the patent realm, I did not understand any of this sentiment. Chakrabarty (the Supreme Court case that literally created, from nothing, the life sciences industry) had recently been decided and I found myself at an AIPPI event. It was, and is, great fun to attend these events and chat and gain perspective from colleagues around the world. When I indicated I was American, a few foreign colleagues joked, “….ah yes, those patent barbarians.” Life was now patentable, was nothing sacred to us, was nothing off the table, did we Americans want to play God and patent his handiwork at the same time? I was amused, but unprepared with any response inasmuch as I did not see patents as having any moral dimension. What is and is not patentable is not about morality; how and when rights are enforced and under what circumstances is when morality comes into play. Patenting it—the first step—is outside the realm of morality and very much in the public interest. Across the board. Always has been.

You see, the patent system does two, and only two, things. One, it creates an incentive for those who would otherwise keep to themselves, i.e., the “wheel”, for only their exclusive use/profit, to share with the public. Two, by virtue of that disclosure, we benefit by not having to re-create the “wheel” and can instead improve the “wheel” and/or put it to good use (i.e., build a pyramid) going forward. In step two, we pay as necessary and as warranted for the use of the “wheel”. I use “wheel” as a reference to any solved unknown. Both the inventor and society benefit. This was and remains the reasonable conclusion of the fundamental discussion between Jefferson and Madison as to whether a patent system should exist in these United States. Jefferson being persuaded that useful ideas would not just spontaneously appear in the public realm without an incentive; and Madison, relying on the ambition of those with the ideas, then located primarily outside the United States, to bring them to the United States, where they could be protected and commercially exploited. Everyone, including the country at-large, becomes a winner; at no cost!

Almost Everything Useful is Patented

Yet, somehow, we get to emergency situations and the otherwise terrific system of balanced incentive and reward is cast as broken. Well, it isn’t. All of the technology that is being used to diagnose and treat and track and communicate and collate and assess and avoid is or was patented. In the United States you cannot, literally, get out of bed without bumping into patented stuff, beginning with the pillow you lift your head from. Just can’t happen. Get used to it. Almost all present medications/medical devices were, at some point, patented creations. And, indeed, some of the most effective medicines in our present circumstance are generic, cheap, and widely available by virtue of now being “off-patent”. Where would our present exigent “solutions” be but for the creative forces unleashed by the patent system to beget now generic “off-the-shelf” resources? Well, let’s just say that folks are not rushing to places where innovation is dormant seeking solutions to the present crisis.

Reinvigorate and Reinforce

In our crass, consumer, greedy capitalist cabal, if you want more of something, you simply pay a little more. No one forces the issue. But this simple act tells those awful innovative profiteers to do more. Note how the price of oil (aside from the recent collapse) and nothing more, had created incentive to go get more of it, at no cost to us. In fact, the costs to us have fallen. This simple incentive-driven phenomenon is true across the board. You may say our medical system costs more, but look what we get. We get more. A lot more. The same is true in telephony, IT, air travel, computing generally, software, food production, etc. And, the same is true for national/global emergencies. Provide incentive, through a patent system of limited rights (scope and time), and you’ll have all the solutions you need, just like in literally every other technology driven topic there is. Now is the time to save the patent system, to reinvigorate and reinforce protection(s), to save us all, in the future that is yet unknown and unknowable, but is coming anyway. Ready or not. The only immorality here is not recognizing the contribution the patent system has already made to solving our present circumstance.

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Author: mcarrel
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The Author

John White

John White John White is a US patent attorney and a patent lecturer. He is CEO/Managing Director of www.PCTLearningCenter.org, and he is also the principal lecturer/author of the PLI Patent Bar Review Course, a course that he originally created in 1995. By now, John has personally taught close to 65% of all practicing patent attorneys and patent agents how to successfully become admitted to the Patent Bar. John has also taught numerous US Patent Examiners at the United States Patent & Trademark Office (USPTO) in the “Law and Evidence Course” necessary for them to advance to Partial Negotiation authority as Examiners. John serves as an expert witness in patent litigations and is regarded as a leading authority on patent practice and procedure. He also maintains a select patent practice, Berenato & White, and also assists start-up technology companies increase and monetize their patent portfolios through his affiliation with SorynIPGroup.com.

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 as of the time of publication 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. Anon April 9, 2020 7:30 pm

    Thank you.

  2. Glen Wade Duff April 10, 2020 8:07 am

    Is it Moral and Good Business to have a strong patent system? Yes, a beautiful combination that our founding fathers laid the foundation for. They created the law because they wisely realized that evil, immoral, greedy and unscrupulous behavior will flourish without protection.

    Beware, there are always Pirates!

    Thanks John, you always see the big picture, while helping to fight for our rights.

  3. Ben Appelbaum April 10, 2020 10:13 am

    Good article. Curious as to where one can find information about the Jefferson-Madison views on the function of the patent system.

  4. Amit Dharia April 10, 2020 11:08 am

    Do you think, the current patent term is too long considering the fast pace at which technology is evolving? Should patent terms depend on the technology sector?

    Do you think, any areas where the invention address the imminent public or nation’s need, should not be allowed a patent? In some developing countries, inventions related to agro and pharma are not allowed – simply because granting such rights could cost more to those who really need it. e.g. in a country where starvation due to poverty is high, and the invention relates to doubling the harvest rate.

    I may be nieve but I DO believe that the patent system is not fairly working in the interest of public or small businesses but more in the interest of large corporations who are hoarding inventions but not deploying them.

  5. Model 101 April 10, 2020 12:03 pm

    John – bulls eye! Thank you!

  6. jacek April 10, 2020 3:14 pm

    ….” Now is the time to save the patent system” …
    What is your proposition?

  7. jacek April 10, 2020 7:54 pm

    Do not File for a U.S. patent!

    If you did, you just exposed yourself and created an expensive problem. In addition to your time and expense to create your new Solution, now be prepared financially and emotionally to defend your Patent.
    1) The first assault against your well being is going be carried out by entities like, for example, “Unified Patents.” Under the disguise of Savior Angel eradicating shoddy work of United States Patent Office (USPTO) and its examiners talking about “low-quality Patents.”
    Using misguided U.S. patent law, Unified Patents is going blackmail you with the immediate invalidation of your “Patent” in an attempt to extract a financial settlement from you. (read Blood Money) using
    created by the 2011 America Invention Act, a patent review board (PTAB) Division of the United States Patent Office.
    PTAB is invalidating 84% of all patents issued by USPTO and submitted for PTAB review.
    Unified know that cost of defending your Patent upfront of PTAB is going cost you, on average, $250,000 per proceeding.
    They are going try to force a settlement from you for less than the cost of your defense under threat of PTAB (known in the U.S. as “Patent Death Squad”) invalidating your Patent.
    If “Unified patents” is not going to succeed, the carbon copy of their complaint can be submitted an unlimited number of times.
    Design is to finish you off financially.
    In the meantime, you are going to learn that your U.S. patent is virtually worthless.
    Any big company, noticing the potential of your product or technology is going to copy and steal your idea without ever paying a dime or attention to you, or your rights.
    CEOs under U.S. law are not personally responsible for acts of their corporations. Abroad they are.
    In the U.S., there is a popular term “Efficient infringement,” describing the stealing of I.P. rights by corporations without paying the inventors any compensation.
    Also, you should remember that you are going to wait for USPTO around five years before they issue or deny your Patent.
    Before the issuance of the Patent, you are not going to be able to stop infringers when USPTO after 18 months from the date of your filling is going publicize details of your invention for the world to see. Read to copy and steal.
    Finally, If you survive and start producing or successfully license your Patent, there is the “River of Fakes” – Amazon.com importing illegal copies of your product and undercutting your company with lower quality and cost and quite often dangerous to consumer health fakes. To keep you sharp and entertained – Most likely, you are going be held responsible for the dangerous Fakes.

    So my dear DO NOT FILE FOR PATENT IN THE US.
    —————————————————————————

    So guys Is above OK as a PR piece for the “Gold standard”?

  8. Anon April 11, 2020 5:05 pm

    Amit Dharia @ 4. While you’re at it, you could ban all private ownership of land, real estate and private property like factories. That way those in need can freely utilize those public resources to end starvation and poverty. Oh, wait, that’s what the communists did decades ago. It didn’t work and the citizens of those countries suffered extensively while those practicing private enterprise enormously improved their standard of living with problem solving and innovation, otherwise known as invention.

  9. Ternary April 11, 2020 10:38 pm

    “… the patent system does two, and only two, things….” For me, at least, it does a third thing: it forces me to complete an idea into a practical invention, if I want a patent.

    I believe many, many people have novel ideas that, when reduced to practice, would constitute a useful invention. For whatever reason, many people with ideas don’t make that last step. Without a doubt, the efforts to modify an idea into something useful are enormous, often too difficult and potentially without enough benefits to the person having the great idea. So, most people don’t make that step.

    An independent inventor sees an economic opportunity for an invention for which IP protection is required. The IP rights (patent) are considered to be a starting point for follow-on economic activities.

    There are basically three possible economic follow-ons for obtaining a patent. 1) sell it to an interested party in some way; 2) use it for internal purposes in corporate settings; and 3) use it to start a company.

    Number 2 is not an option for independent inventors, of course, that is why they are called independent. Number 1) has disappeared because almost nobody is buying (efficient infringement is now the norm). And number 3 is less and less attractive, because the lack of security on the value of a patent.

    Thus, the choice for independent inventors is not “to keep the idea to themselves.” Ideas are a dime a dozen. Really. The dilemma now is: does an inventor invest time and effort to finalize an idea into an operational, useful and thus potentially patentable invention.

    If I don’t want a patent, I am happy with sticking to the concept. And I have many ideas. Too many really. I may play with it a bit, find out what issues are. But I am certainly not running models for weeks at end to find and address flaws if I don’t want a patent. I also don’t write things up in a publishable form. Thus, no invention is done, nothing to share, nothing to improve, no business to start.

    It is often believed that independent inventors are “one hit wonders.” Through a flash of brilliance they conceive a unique invention for which they obtain a patent. That is not always the case. The one-shot inventors are actually a pain in the neck for patent prosecution. They have no idea what the process is, they feel often mistreated by the system (and they are, but not in the way they think) and they need excessive handholding. Experienced inventors, more or less, know what to expect, better work out their invention, check prior art and take guidance from attorneys. The quality of their inventions improves drastically after going through the prosecution process at least once. At least mine did. And especially the first patent may be quite painful. The incentives to become an independent repeat-filer have largely disappeared in America. And of course just at the time when we need these activity creators the most as existing companies are letting go of staff.

    jacek@7 above provides some good reasons why it may not be worth it to put in the efforts to start an IP dependent business. Are you listening Congress? You need to put incentives in place, again, to unleash the known and proven ingenuity of the American inventor once more. Undo the damage that has removed the independent inventor from the economic scene. It is not rocket science. It has been done before. It should be done quickly to facilitate new and badly needed economic activity.

  10. Ravi Mukkamala April 15, 2020 7:14 pm

    John, always read your posts and (listened to your lectures) with great interest. Fully agree with your central point about patent system that we have. Although, I thought, you could have elaborated further on the second half of your title ‘how and when rights are enforced and under what circumstances is when morality comes into play’. Love to hear your expanded thoughts on that as well.

    While patent systems here in the US or elsewhere have their inadequacies, most of agree they are still working reasonably well to protect and help build on the patented innovations further everyday. On the other hand, the commercial fruits of those innovation and their affordable availability to all (especially once underlying patents expire) is generally true, but how it actually plays in the market place depends a lot on other, bigger factors such maintaining a strong and vibrant ‘free market’ or seeing its slow death through increased monopolization of various market segments. In the end the greater public/ consumers, often end up paying a bit more (not less) either in terms of direct cost of the goods (like, for example, cost of internet and phone plans in here in the US) or indirectly through loss of data, privacy or both, when consumers lured into using ‘free’ services (of social networking, instant messaging, etc.). But that’s a different beast all together, and USPTO and PTAB have less to do there than the US congress and the Supreme Court.

  11. TJ June 22, 2020 6:34 pm

    I am currently conflicted about the morality of patenting. I have already developed an invention (actually more than one), and am considering filing for a patent, but am not convinced after reading your blog that it is in fact a moral choice (or non-moral).

    The incentive for me to develop my product was A BETTER PRODUCT. I spent nearly three years developing it, but it is better functioning than current items on the market, and it is saving me time and will continue to do so as long as I live. I also have ideas for new inventions that I will pursue (have already started) whether I patent them or not. I don’t need financial incentive to innovate or create: it’s in my nature; nor do I need incentive to share.

    The crux of my dilemma is that I believe humans will advance more quickly and freely when information is freely available and there are no restrictions on who can create what.

    If I make tutorial videos to post online for others to copy my invention (go public domain), then my invention will spread and be put to good use rapidly. And truthfully, the best rewards for me will be: 1) knowledge that my innovations are helping people all over the world and saving them time, and the honor of having people respect and enjoy my inventions; 2) I already created it, and that can never be taken from me. So what is there to “protect”?

    What I see a patent truly protects is NOT the invention or the inventor, but the financial interests of the filer. It is a tool of litigation, and a very loud claim that “this is MINE!”

    To me it just seems selfish.

    ******
    “Life was now patentable, was nothing sacred to us, was nothing off the table, did we Americans want to play God and patent his handiwork at the same time?”

    You haven’t assuaged this argument, at least not for me. Life occurs freely, and I am not convinced it is moral to capitalize on that.

    “What is and is not patentable is not about morality; how and when rights are enforced and under what circumstances is when morality comes into play.”

    What you seem to mean here is not the “rights” of life (moral rights), but “rights” of gain. Patentability only comes into question in conjunction with money; you make the assumption that capitalism itself is moral.

    “Patenting it—the first step—is outside the realm of morality and very much in the public interest. Across the board.”

    I disagree with these two sentences. In my case it seems counter to the public interest because the structure of the system is slowing my process of getting my inventions out there, and it is consuming time of my own life that I could otherwise be innovating or focusing on other life facets. I don’t believe patenting is “across the board” in the public interest or outside the realm of morality. With 7.7 billion people on this planet, each with a unique perspective, I don’t think it is fair to make such sweeping black-and-white claims of morality.

    “The patent system does two, and only two, things”….

    To me the incentive model of patenting seems to say “I’ll share my invention, but only if I get something in return”; I don’t think that is necessarily a moral reason to do something.

    ******

    I think there are many angles of the “moral dimension of US patents”, and I don’t think it’s possible to discuss their morality without discussion on the morality of capital. Your bio says you work for a patent firm, so your perspective in this blog may not be impartial.

    But I am young and new to the patent realm, and surely my perspective will change with time and experience.

    Moving forward, I likely will file for a patent, but only begrudgingly, because I truly feel pressed between a rock and a hard place within “the system”.