Friday, April 8, 2011

The President's Patent

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."US Constitution, Article 1, Section 8, Clause 8

The foundation of the innovation system in the USA is the Patent Office and its financial implications. While a patent doesn't guarantee a customer, it does guarantee a lack of competitors. The promise of a monopoly attracts investment and maximizes profits.

"Lincoln said that the Patent Office adds the flame of interest to the light of creativity. And that is why we need to improve the effectiveness of our Patent Office." Jay Inslee

While I was not able to confirm Inslee's claim to Lincoln's statement, it seems reasonable. Lincoln was the only president to have a US patent issued. It was a method for lifting boats over shoals when they became unwittingly grounded. Lincoln also made a fair part of his living litigating patents prior to becoming President.

This 'flame of interest' was almost snuffed out by that very Patent Office in the last several decades. By approving marginal applications and by taking 3+ years to make a finding on most applications, the Patent Office greatly devalued the US patent.

The marginal patents, marginal because prior art (other peoples patents) were essential similar, created havoc as the civil courts, not the Patent Office, determine the final enforceability of a patent. If an investor can not trust that an issued patent will hold up in civil court, then they are wary to make an investment. Companies with patents found themselves in billion dollar lawsuits for infringing on other companies' patents which were rather similar.

The 3+ years to approve a patent was not only costly in legal fees, but made capital investment during the approval process very risky (ie - expensive) for small companies and made larger companies cautious to launch new products before knowing their legal positions.

Thankfully, the Patent Office has started to reverse its decades long slide.

Albeit, the Supreme Court had to act before the Patent Office increased its threshold of novelty (the level of proof the inventor must provide that the invention would not be obvious to someone skilled in the art), it is clear that the Patent Office has increased its standards. While it is still unclear where it is headed, this was a much needed change.

Recently, the Patent Office has become more serious about reducing the time to obtain a ruling. Now, if you are willing to pay an extra $4,000, the Patent Office will guarantee a ruling in one year rather than 3.

While still a long way to returning the flame of interest to the USA's light of creativity, it is nice to see that at the US Patent Office, it could BE different.

(and in case you were wondering, Lincoln never commercialized his patent)

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