Are Patents Good for the World?
There has never been a better point than now to stop and reevaluate what we’re doing and why and how we’re doing it, to take everything apart and challenge whether that equilibrium we had arrived at is really what is best.
“Teacher, which way should I go?”
“Where do you want to be?”
“Then you should go forward.”
“Which way is forward?”
“The way that you go.”
I’m a patent attorney.
Recently, I found myself wondering if what I do for a living is good for the world. It’s an impossible question to answer unless you first have some notion of what is good for the world.
I also found myself, mid-pandemic, thinking of optimization—of re-optimizing my existence to meet the current situation, and find myself at a similar crossroads. How can I optimize when I’m not confident in my perception of tomorrow? Then aside that uncertainty, I’m paralyzed at the thought of how easy it would be for me to optimize when others cannot. I can set my sails to take the wind, but how much should I take?
All optimization is optimizing for something. As we change, or as the world changes, that for changes too. There has never been a better point than now to stop and reevaluate what we’re doing and why and how we’re doing it, to take everything apart and challenge whether that equilibrium we had arrived at is really what is best.
Ralph Waldo Emerson said, “The purpose of life is not to be happy. It is to be useful, to be honorable, to be compassionate, to have it make some difference that you have lived and lived well.”
He also said, “I hate quotations. Tell me what you know.”
America became anti-patent in the 2000s. It hasn’t recovered. Looking back, the direction of the critics never truly aligned. They were just against. Nobody understood each other more than that.
Even the criticism of Amazon’s “one-click” patent—it wasn’t simple, it just sounded simple, and so few outside the practice appreciated that. The corporate critics of the patent system were riding this giant wave of money and progress in a new technological era. The problem wasn’t the patents, the courts weren’t ready to deal with that new wave and all that came with it.
Today, practitioners call for patent reform. We know that last direction was off, but even though we use the same words to describe the remedy, “patent reform”, we still don’t understand each other. Litigators’ “patent reform” is not prosecutors’ “patent reform” is not small-entities’ “patent reform” is not large-entities’ “patent reform” is not biology and life sciences’ “patent reform” is not software developers’ “patent reform.” We all think we’re being objective, but we are in the worst position to make that judgment.
That lack of understanding is even steeper and more hidden for the bigger questions, like “Are patents good for the world?”
Tom C. Clark prosecuted and investigated antitrust violations and government contractor corruption for the Justice Department after WWII. President Truman nominated him to the Supreme Court in 1949. In 1966, Justice Clark delivered the majority position of the court in Graham v. John Deere Co., 383 U.S. 1 (1966). We know the case today for its Graham factors, the Court’s first take on obviousness as codified in the 1952 Patent Act, but to arrive where it did, it went back much further.
Justice Clark went to the writings of Thomas Jefferson to understand the ideals of the American Patent System. Jefferson, the first administrator of the U.S. Patent Office, was paramount from the beginning. Right or wrong, the U.S. Patent System is his.
Jefferson believed that the only way an individual could own an idea was to keep it secret—that once divulged, no person had a natural property right in it. That sounds downright anti-patent. In a way it is. Jefferson was generally opposed to monopolies, but recognized that patents were a useful good, a financial incentive to teach the world new and useful knowledge.
“It would be curious, then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less because every other possesses the whole of it. He who receives an idea from me receives instruction himself without lessening mine, as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man and improvement of his condition, seems to have been peculiarly and benevolently designed by nature when she made them, like fire, expansible over all space, without lessening their density in any point, and, like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”
Graham, 383 U.S. 8, n.2 (citing VI Writings of Thomas Jefferson at 180-181 (Washington ed.)).
“The patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge. The grant of an exclusive right to an invention was the creation of society — at odds with the inherent free nature of disclosed ideas — and was not to be freely given. Only inventions and discoveries which furthered human knowledge, and were new and useful, justified the special inducement of a limited private monopoly.”
Id, 383 U.S. 10.
Bring forth your useful knowledge, teach it to everyone, and that is good for the world.
But who is listening?
Jefferson’s words above appeared in a letter to Mr. Isaac McPherson discussing patent laws and a patent to flour-milling technology (the “hopper-boy” machine) invented by Mr. Oliver Evans. Jefferson himself paid a royalty for the patent. It’s a bit of a story.
Jefferson examined Mr. Evans patent in 1790. It was one of the first three patents in the nation (only 3 were granted in 1790, the first year of the U.S. Patent Office). President George Washington signed the patent and purchased a license to it for installation at Mount Vernon in 1791. At the expiration of the patent in 1805 (the initial term of utility patents in the United States was 14 years, a carryover from England), Evans petitioned Congress for an extension, granted in 1808, during Jefferson’s second term as President of the United States.
Somewhere in the period between the first expiration of Evans’ patent in 1805 and its extension in 1808, President Jefferson hired a “mill wright” to construct a mill. Evans, after receiving extension of the patent, had to request a royalty from the sitting President of the United States. President Jefferson claimed to not know that his mill employed Evans’ machinery, then paid the requested royalty.
Even some of the best minds bias closed.
I teach. I exist in a small group of society that learns from experts and teaches the world. There is so much to learn.
Every so often our clients engage us to learn from their competitors. We stand on their competitors’ shoulders, secure our footing, teach our clients what we’ve learned, and help them look towards tomorrow. But that work is too seldom done—for two reasons: budget and time. In some ways those two are the same.
We each have the same 24 hours in a day, and we each decide how to use them. In these days of pandemic, sleep and family are at the apex. The rest we devote to ourselves and to our work, however that’s defined. In a sense, optimizing is just rebalancing those four things and reducing waste. Every minute counts towards something and away from something else.
Beware of those who do not value your time.
A good patent portfolio aims to provide value a hundred times its cost to assemble and then some. It covers each major product sold in every jurisdiction with market share, provides a barrier to entry for competitors, ensures control and exclusivity of market differentiators, defensively covers competitor products, and looks ahead to the tomorrow of the company, its competitors, and emerging markets. Every piece of the portfolio has a purpose and that purpose is known, stored, revisited, and updated at every touch point to ensure its sails still have the wind.
Anyone can move in a direction, but there is a cost to knowing where you are and how you’re moving. The value of that cost depends on your business objectives. Limited funds produce limited outcomes. Companies don’t need patents to sell products, but patents do protect investment in those products. Research, design, and marketing drive forward progress. Intellectual property insures it. It’s an anchor on competitors, and done right, limits the risks of success.
Drafting and annuities costs are predictable. Once the decision to prepare and file has been made, drafting is a predictable cost at a predictable time frame. Annuities are set by schedule based on filing or issuance dates and are easily managed annually or semi-annually to ensure that costs continue to align with current business objectives.
Prosecution costs are more unpredictable in that we cannot control the actions and timing of the patent office. Projections for the coming 2-3 months are simple. Projecting further than 3 months is challenging. That said, with enough data, we can model prosecution costs based on filing models alone, which has enabled us to explore yearly prosecution models with our clients. (If that excites you, you’re my people. Talk to me.)
Portfolio management means something different to everyone who practices. In a way, it’s speaking about the portfolio with the client in the way the client wants to understand it and working towards the stated goals of the client for the agreed upon price. The variables wildly vary.
Some clients defer control until issuance or ask that we only contact them when we need them. Others ensure that every prosecution decision is aligned to their changing business objectives. The first is easier to work in. Maybe surprisingly, I prefer the second. It’s harder and costs slightly more, but vastly increases portfolio efficiency. We leverage the business knowledge of inside counsel in prosecution decisions and strategy. It’s our burden to do the heavy lifting for our clients, but it pays dividends for them.
Our task is to optimize portfolio efficiency according to the resources allocated to it—and to advocate for better prosecution models. Increased efficiency of the basic tasks frees resources for more advanced tasks, like product development guidance and clearance/freedom-to-operate analysis, analysis prior to release of products or public information, competitive analysis and defensive patenting, opinion practice and strategic counseling, or invalidity proceedings. Effective communication of the value of these tasks is the biggest internal advocate for IP resources.
My goal is to find clients who value intellectual property as much as I do.
Enter modern corporations, financial markets, and intellectual property practice. Officers and directors of a corporation have a duty to act in the best interests of the corporation and its shareholders, which is commonly received as a duty to increase the value of the corporation for the benefit of its shareholders. But what is value, and at what time frame?
Individuals make daily tasks. Corporations, composed of individuals, report quarterly. Patents last twenty years, give or take. Society measures in generations. At what time scale should we judge progress?
Do corporations owe any greater duty to society than you or I do as individuals? Maybe with their profits. Corporations benefit from individuals, but is it fair to ask them to take a longer view without providing short-term reassurance? Maybe not. But what if these corporations stand in front of us and tell us who they are?
“To accelerate the world’s transition to sustainable energy.” Tesla
“Dedicated to transforming lives through innovative medical solutions that improve the health of patients around the world.” Boston Scientific
“To contribute to human welfare by application of biomedical engineering in the research, design, manufacture, and sale of instruments or appliances that alleviate pain, restore health, and extend life.” Medtronic
“Fueling the world safely and responsibly.” ExxonMobil
“To bring the best user experience to its customers through its innovative hardware, software, and services.” Apple
“To make the world around you universally accessible and useful.” Alphabet
“To empower every person and every organization on the planet to achieve more.” Microsoft
“Live true. Think big. Pursue excellence. Inspire imagination. Be there. Stand for equality. Embrace freedom. Make a difference.” AT&T
Most, by their own words (if you believe them), are here to change the world for the better, to advance some aspect of society or alleviate some existing harm. Their goal is not merely to report positive quarterly earnings, or ensure their employees put food on the table and pay their rents and mortgages, though they do that as well. Their missions are idealistic. Can we demand they be more idealistic if their missions are idealistic?
Patents are good for the world if we make them good for the world. If we use them to teach and advance society, if we use them to stand on the shoulders of what came before us and look forward, that is good for society.
More than that, patents provide control of these useful discoveries. Even nonprofits and philanthropists unconcerned with monetizing their discoveries should consider patenting, not only to teach the world their useful advances, but to maintain their integrity.
How many discoveries in one area have spurred innovation in another? Ideas spread like seeds in the wind. We are the wind.
Patents have become exceedingly difficult to read and comprehend. Abstracts and summaries were intended to provide brief descriptions of the ideas enclosed, but 200 years of jurisprudence has left them nearly as difficult as the claims themselves. I fear that the useful discoveries in patents are too often only discussed in the context of assertion or damages.
If society does not learn from the knowledge taught and shared in patents, it will have granted this monopoly, that temporary anchor, and failed to realize its value. The less society learns from patents, the less it will value them, and I fear the more anti-patent it will become.
I don’t pretend to know which direction is forward, which path society should take, or what humanity should reward or incentivize. I just know that I want to be on the side of those building towards some vision of tomorrow that advances society, if not towards some greater summit, than to at least alleviate some existing harm.
These useful advances are good for the world. Can we make a better seed? Create a bit more wind?
Photo by PiccoloNamek https://commons.wikimedia.org/w/index.php?curid=528340
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