THE PATENT SYSTEM

Thomas Jefferson was the first United States patent examiner, and this is what he must have thought about the creation of our patent system:  His was an agrarian country that might gain commercial advantage with superior farming techniques and implements.  He undoubtedly looked at the British intellectual property system and decided that it would be wise to adopt something like it for the United States.  His new country had been an agricultural crown colony but as a new republic it was free from the domination of a distant power.  It was now able to control its destiny; and especially important, its commercial destiny which at that time was envisioned to be primarily agricultural — Jefferson and many of the founding fathers were farmers.  At that time most devices were made of brass, iron, steel, copper and wood.  Such machines had gears, wheels and levers, and to our modern eyes these devices may seem quaint, but to Jefferson’s eyes they were the essence of technology.  In his time they were the work of individual inventors, not of industrial corporations, which would not exist for many years.  The inventors, maybe they could be thought of as clever tinkerers for the most part, were furthering the American economy by making it easier to farm and engage in 18th-century industrial activities that could lead to more productivity and wealth for the American states. 

People often think of invention this way:  The science comes first and technology is applied based on what has been discovered.  Sometimes it’s true and sometimes the engineers are ahead of the scientists.  3D movies may well be an example of the inventors out in front of the scientists. As far as I know inventors made the first field-sequential stereo projected images.  Inventors like Laurens Hammond, in the early 1920’s, probably achieved a flicker-free system, because contemporary accounts make no mention of flicker in the Teleview projected images shown on Broadway in New York in 1923. It’s a physical law that a properly present temporally multiplex stereo image will not flicker, but the means for achieving this, the device required, can be patented. A physical law cannot become the subject of a patent but an invention may be ahead of the science and it may take scientists years to explain how the invention works. 

The philosophy of the patent system that Jefferson envisioned goes something like this:  Let’s have the inventor describe exactly what he did to make the device work so as to leave a record for the benefit of society.  It’s also possible to achieve a commercial advantage by keeping the invention a trade secret, and for certain industrial process this is best for the inventor or his company – for one thing there is no time limit on a trade secret’s protection  as there is with a patent. Jefferson was a prose stylist who wrote voluminously and he was passionate about inventors creating a technology record to benefit society; one of the important things about humans is that we can communicate verbally and perhaps more powerfully, in this context, with writing.  In this way, a record of technology achievement and what might have been kept as secrets could be left for the benefit of all.  In exchange for leaving this recipe the inventor was granted “letters of patents”, or a kind of monopoly.  For a period of time, originally 17 years, no one else could make, use or sell the invention that was described in the granted patent.  

Having patent rights, or at least the potential of such rights, is also a key ingredient in attracting investment.  Having a viable patent portfolio can also materially enhance the valuation of a company.

The inventor had to submit a disclosure of the invention, and then someone, the examiner, had to judge whether or not this disclosure described a unique invention – something that had unanticipated features.  It would not further society for someone to re-patent that which had existed; it would only further the inventor and, in a sense, given the philosophy of the patent system and Jefferson’s goal, this would grant rights to someone who was not furthering technological advancement.  

The principal rule for judging patent worthiness (or more properly the claims) requires that what is disclosed is non-obviousness.  The examiner has to be able to judge whether or not the disclosure covers new ground.  This leads to a judgment call about the difference between an invention that is unique and one that is obvious.  If you add an eraser to a pencil you have a useful device. But is it not obvious to add a lump of rubber to the end of a pencil and by this means to make a device that is both a writing and an erasing implement packaged in a convenient form? Or did the inventor have a brilliant flash and now, only with hindsight, will the examiner assert that it’s all so obvious.  If it was so obvious why did nobody think of it before?  But on the other hand what’s the big deal about combining a graphite and clay rod trapped in a cylinder of wood with a tacked on eraser?  

Jefferson and his colleagues had created a useful system that furthered American commercial enterprise that would serve far beyond the agrarian vision of the founding fathers.  There was now in place a legal right for an inventor to sue an alleged infringer.  For a period of time the inventor has an exclusive right, maybe it can be thought of as a breathing period, in which to turn the invention into a product, and make some money. A patent, after all, is only a document, and without making the device and offering it for sale it has little value, with the major exception of using it to sue an alleged infringer or to block a rival.  It doesn’t further an inventor in any way other than in terms of vanity if the invention can’t produce cash. 

From a strategic point of view the inventor has a period of time in which to learn how to manufacture the device or perfect it further, and to market or sell it.  This could turn out to be an advantage to society as well, because if the inventor, as the originator of the technology, is granted some time to improve and perfect it, by turning his invention into a product and a business there is a benefit of society.  If the inventor isn’t given this kind of monopoly – a sort of negative monopoly – for a period of time, he loses an advantage and possibly society does too in terms of wealth and job creation. 

This negative monopoly produces this result: If someone else enters the marketplace with a product that is covered by the art described in the granted disclosure, the inventor has the legal right to sue and possibly enjoin the infringer or to collect damages.  The term “art” is used in describing patent technology.  It’s an interesting one and it harkens back to another time, a time of men like Leonardo who were scientists and artists.  Once philosophy covered a broad range of what we today consider to be science, technology and art.  This was before the age of the specialist.  The Jeffersonian patent system was aimed at preserving the working knowledge an inventive craftsman who was putting together mechanical implements to serve an agrarian economy, which rapidly became a manufacturing economy; beyond the dreams of the founding fathers it became the economy we have today based on internal combustion engines, electrical and electronic technology, computers, optics, nuclear power, biological inventions in which somehow the disclosure of  human DNA can be granted patent rights, and even dubious business system.  

Over the years a system was built up to the benefit of the inventor and also society, so that inventor could benefit in the short run and in the long run society.  We live in a world in which technology can make it possible to produce quantities of food sufficient to feed everyone but it remains a world in which there is mass starvation. But the patent system doesn’t address how to make the governments of the world smarter and better serve their people.  

The patent system was conceived of as a way to generate wealth and economic growth.  There are some people who disagree philosophically with the idea that an inventor can capture and possess a technology, even for a short period of time.  Seventeen years then and 20 years now is a short period of time compared to the 150 millennia humans have been on earth, but in a vibrant economy a couple of decades can be viewed as a long wait.  

The patent system has worked well for Americans.  Before there were large corporations with their vast wealth, individual inventors helped create a United States of individual enterprise where the iconic vision of the backyard/garage inventor was more than just a myth.  Airplanes, guns, harvesting machines, and automobiles come to mind. A lone inventor or a man working in a small, undercapitalized, group has been, according to some scholars, the way America rose to technological and industrial strength.  By favoring the small inventor we favored our entire society, to the benefit of all, and we created a system that worked.  Over the history of the United States American became wealthier and wealthier, and despite excesses and inequalities we became the most powerful industrial country in the world, with the largest economy.  How that wealth failed to be shared is nothing the patent system addresses. 

In recent years there have been changes.  The patent system no longer favors the small inventor because it is so costly to file a patent and maintain it.  Since I started my life as an inventor in the 1970s the patent system has grown less and less favorable to that iconic lone-eagle and has become more of a burden to the little guy.  It’s more difficult now and more expensive to file a patent.  It is as if with the recent changes in the patent system the United States forgot what had made it strong, and sought to destroy the wellspring of that strength.  The patent system has become more difficult to maneuver, which also makes it more costly because of changes in the fee structure.  Not only does it cost more to file a patent, it can be quite costly to deal with the patent examiner’s interrogatories.  In order to get a bona fide U.S. patent on a device of any complexity an inventor needs the help of a patent lawyer, and patent lawyers get paid a lot of money.  

To file a United States patent without the help of a lawyer is not terribly costly but probably not effective in many cases.  As the years go by the inventor has to pay something called an annuity to keep the patent alive.  This is a scheme that didn’t exist a few decades ago in the United States, and was dreamed up as a way to create revenue for the patent office.  One might argue that it’s a way to drive out patents that aren’t being employed, but it’s clearly for the benefit of government rather than the inventor to have a scheme of this kind. An argument might be made that if the fees were plowed back into the patent system there would be some measure of justice in the fee hikes.  But I’ve read that this is not the case.  

A patent consists of three main portions: drawings, a written disclosure, and the claims.  The drawings and the written disclosure are of one piece.  Typically the best way to go about writing a patent is to make drawings first (this applies to many, but not all, patents), and then to describe in great detail what is going on in those drawings.  The final part of the patent are the claims which in a kind of legal jargon carve out the technolgy turf to the benefit of the inventor, based on the material in the disclosure.  As a rule of thumb, the longer the claim the weaker the claim, because a long claim usually uses its language to limit the generality of the invention through exclusions.  

To my mind the patent system is Talmudic.  It involves a great deal of scholarship and splitting hairs, especially when it comes time for the inventor to talk to the examiner.  The examiner will look at the disclosure and try to find prior art that limits the inventor’s claims, or even eliminates them.  The dialogue can go on for years.  In one case I spent eight years arguing with the examiner before the patent was granted.  Toward the end of that time the conversation can get rather blunt, but if the inventor doesn’t agree with the examiner’s judgment there is a way to appeal.  

In the United States system it behooves the inventor to tell the examiner about the relevant prior art, because if the prior art is cited in the case file it means that the examiner considered it when granting the claims, and this only strengthens the claims.  That’s the tradition we use here but in some other parts of the world that’s not what’s done.  Inventors may attempt to conceal prior art, or they don’t feel obliged to tell the patent office about it. 

When I said that this is a Talmudic discipline, it’s because so much of allowing claims involves judgment and really, as noted, hairsplitting.  Sometimes it just isn’t clear what is an obvious invention and what is not obvious, and sometimes there are superficial resemblances in drawings or text between the disclosure under consideration and an already granted patent. Often it is these superficial similarities that the examiner seizes upon. 

In my time as an inventor I have had respect for some examiners and downright loathing for others.  It’s much easier to deal with an examiner who is good at what he’s doing and knows the prior art and comes up with good arguments.  It’s not a pleasure and much harder to deal with an examiner who may have no more sense than a monkey, glomming on to superficially similar drawings and text but having no clear concept of the art.  

On the other hand, I don’t know how anybody can have the time to dig into patent after patent and compare them to the other relevant prior art in the field.  Of course patents are classified and you’re supposed to be able to find them one way or another using this system and today with the capability we have with computer search I’m thinking that the examiner has a big advantage.  I want to thank Google for their superior patent search system that in some ways runs rings around the United States patent search system, which does not have the capability of doing a word search before 1976.  There’s good stuff before that year. 

The patent system today is one that favors large corporations, which have lots of money, for a number of reasons. If you invent anything today that potentially has significant commercial advantage, you want to have patent rights in the countries where people are going to make, use or sell this invention, which could be a good part of Europe, Canada, Australia, and places like Taiwan, Japan and China.  Although there is a patent convention treaty that can simplify things, one still has to eventually wind up filing in various individual countries, enduring the cost of translations in some countries, and then paying filing and maintenance fees.  Over a period of, say, five years it could cost a few hundred thousand dollars in legal and other fees to file in important countries.  

The United States patent system has been, until recently, what I consider to be OK whatever the problems that are endemic to a bureaucratic regime that makes interpretations based on narrowly defined rules rather than on good sense.  But the patent system has declined in terms of what I view as the quality of the examinations (hard to prove) and the added burden of cost to the individual inventor (easy to prove). 

The United States has chipped away at the intellectual property system that contributed to its technological prowess.  This is probably a reflection of that fact that we have strengthened the patent system for benefit of large corporations and made changes to accommodate other nations. The individual inventor or small company striving to create new technology is discouraged at every turn by a government and an economy that favor the wealthy to the exclusion of ingenuity and the little guy.  We live in a society in which the accumulation of wealth and the manipulation of money have become more important than inventive ingenuity and the genuine creation of wealth through new products.  Earlier I used the word productivity but I didn’t mention that now.  Society has changed and productivity now means firing people and making those who remain work harder and longer hours.  Some of this is made possible by a telecommunications triumph that allows people to work around the clock. But of course this is ultimately self defeating since people who don’t have jobs can’t buy the things the companies make and sell. The economic disaster we are living through and the declining prosperity of the middle class says something about a country whose fortunes were once linked to a vibrant patent system that encouraged invention.  Our increasingly plutocratic society is one that favors wealth and the manipulation of money over the invention of new products.

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