Fixing the patents system

Patenting has always been a messy business, and America has always struggled with how to protect its inventors, according to Darin Gibby in his book Why Has America Stopped Inventing. A modern inventor faces a drawn-out and expensive battle with the Patent Office in applying for a patent, and the cost rises to millions of dollars if the patentee seeks to enforce a patent, with very little certainty at the end of the process. But America’s first inventors also encountered hardships and obstacles in protect their creations.

  • Eli Whitney provided a tremendous boost to the American economy by inventing a machine that removed seeds from cotton, but he tried to charge too much and courts refused to uphold his patent.
  • Charles Goodyear spent years trying to make a rubber that did not melt in hot weather. When he finally invented the vulcanization process, his invention was stolen and he faced years of litigation to protect his rights.
  • Sam Colt would have gone bankrupt if he had not been saved by the war in Mexico which increased demand for his patented gun.
  • Samuel Morse struggled for a long time to convince the government to install telegraph lines to take advantage of his invention, and when funding became available he was forced into patent battles against blatant infringers.
  • Isaac Singer created the most popular sewing machine, but became ensnared in a patent battle over the prior patent rights of Elias Howe. Problems with overlapping patents were eventually resolved by the creation of a patent licensing pool, and Howe became a millionaire even though he never produced a commercially viable sewing machine.

The book also includes stories about Cyrus McCormick, Alexander Graham Bell, George Baldwin Selden (a patent attorney whom the author describes as the first patent troll), Guglielmo Marconi, Thomas Edison and the Wright Brothers.

According to the author, if America’s golden days of invention are to be revived, it will be necessary to create a more efficient equitable process for protecting inventions. His specific recommendations include:

  • Reintroduce the requirement for patent applicants to produce working models of their inventions.
  • Abolish the obviousness standard and the doctrine of equivalents.
  • Reduce the twenty year patent term to ten years.
  • Curtail the continuation practice which keeps patent applications pending for years.
  • Go to a first-to-file system in place of the first-to-invent system.

Interestingly enough, the last of the author’s recommendations is already being implemented in the America Invents Act of 2011. Do his other recommendations actually solve the problems with patents that the rest of the book so vividly illustrate? They might help, but it seems to me that a significant problem illustrated by the stories is the ability of the patentee to use the patent monopoly capriciously to hold up progress. If useful inventions are encouraged by the prospect of huge rewards, then surely it is possible to structure those rewards in a manner less antagonistic to the interests of society, for example by means of a compulsory licensing scheme whereby the inventor is rewarded with royalties but cannot prevent others from using and building upon his or her invention. If it was feasible, such a scheme could potentially make patents much less expensive to enforce and much less of a threat to industries.

I thoroughly enjoyed reading about many of America’s famous inventors, and contemplating the author’s ideas for reform.

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