HOW DO WE FIX THIS?
What few people realize is that the inventive spirit that reinvigorated America during the nineteenth century is again trying to take root—at a time when it is desperately needed. The parallels are striking. Although today we talk in terms of the Internet, superconductors, cellular telephones, and smart bombs, you could just as easily replace these technologies with those of the 1830s.
That seems impossible, but it’s true. The decade we just experienced was little more than a repeat of what happened in the 1830s. The only difference is what came out of the 1830s has yet to find is equal in the world’s history.
America’s frenzy over the blossoming of the Internet brought about a dot-com craze that seems unprecedented—until it is compared with America’s “Rubber Fever.” It too made and lost fortunes, while also laying the groundwork for a massive technological boom.
One benefit that survived the dot-com disaster was the immense telecommunications infrastructure that it put in place. Millions of miles of high-speed fiber optic cables were strung over the entire globe. The same thing happened in the 1830s as Morse’s experiment with the telegraph finally took hold and Congress appropriated $30,000 for a 40-mile line from Washington, D.C. to Baltimore. In just a few years, telegraph lines found their way to nearly every major city in the world. People could now communicate in near real time—no matter the distance.
The race to lay cable wasn’t the only race. America was in an arms race as well—stemming from America’s clash with Spain over Florida, then with Mexico over the Mexican territories. As it does now, the U.S. army sought for a technological advantage. And they found it in Colt and his revolver. The nuclear arms race between the U.S. and the former Soviet Union is just one example of how similar we are to former generations.
There was also a food revolution. Then it was wheat driving the need for the mechanical reaper. Today it involves corn and the efforts to make high fructose corn syrup or ethanol.
In so many ways, the 1830s was similar to the modern era, save one: the drive to invent. The great inventors of the 1830s spent decades in total dedication to invent their ideas, living on next to nothing and barely eking out a living. Today’s inventors have nine-to-five jobs in research labs, with perks like gourmet cafeterias, game rooms, and high-tech gymnasiums. For most, all their forebears had was just guts and determination, and a desire to forge ahead.
The incentive for these early innovators wasn’t just the satisfaction of inventing. Mostly, it was the financial reward, a way for them to secure their futures. And it was the patent system, more than anything else, that gave them the faith that if they invented, they would reap the financial rewards.
The obvious impact of the patent system on the U.S. economy was understood the world over. Seeing America’s propulsion onto the international stage, the Japanese government sent a contingency to the U.S. to study the patent system. When asked why the Japanese people wanted a patent office, the special commissioner replied, “What is it that makes the United States such a great nation? And we investigated and found that it was patents, and we will have patents.”
Today we still have a patent office, but where are the inventions? Where is our technology revolution? Where are our alternative fuels? When do we say goodbye to the Middle East? Where are the McCormicks and the Goodyears of the world?
We need to invite them back, just as we did when we first extended the invitation in 1836, a time of unprecedented innovation in America.
The problem with today’s culture is that Americans are unwilling to dedicate twenty years to inventing a technology when they have no guarantee that their ideas will be protected. Not so a century and a half ago.
Morse is an extreme example of what it took to succeed. Upon returning from Europe, he told his brothers about his extraordinary idea to communicate over a wire. While still clinging to the hope of being a great painter, he continued to tinker with the idea for another five years. When his painting career ended, he struggled for years to perfect his telegraph. His one token of triumph was the granting of his patent. Yet even with patent in hand, it took the help of Samuel Colt and the head of the patent office to secure him a $30,000 grant from Congress to lay his first line. When the infringers copied his telegraph, it took a team of lawyers to stop them. Yet the patent system did work. The telegraph was both the most financially successful and society changing invention of the nineteenth century, and it eventually paid Morse handsomely. The same could be said for Colt’s revolver and Goodyear’s vulcanized rubber.
If it was that difficult to introduce a groundbreaking technology in the mid nineteenth century when the patent office heavily favored inventors, consider what it’s like today when the patent office and the courts are so uncooperative. An inventor like Morse has virtually no chance.
So what can be done to bring back America’s golden days of invention—a time when we invented twice what we do today?
A good start would be to re-create the inventive environment of a bygone era. To bring back America’s innovative spirit, we must create a more efficient, equitable process. Inventors can’t keep waiting five years and shelling out $30,000 for a patent—if they can even get one—then expect to pay $5 million to enforce their patent or defend against someone else’s patent. That means figuring out what the modern equivalent to the nineteenth-century approach might be.
It’s not impossible. Just look to what is happening with smart phone applications or “apps” and apply that to every technology field. Although these apps are wildly successful, it’s only because the amount of investment needed to create one is so low the entire industry has developed outside the patent system. If our patent system efficiently protected inventions that do take significant capital expenditures and still gave room for competition, you’d see everyone inventing. And they’d be inventing the technologies we desperately need, such as more efficient forms of transportation and clean energy.
What we need is a role reversal, where inventors are those outside the walls of corporate America, like those who came up with the telegraph and the airplane. Under our current patent system, only the rich can play.
We’ve now had 220 years of experience with patents. Thomas Jefferson’s idea was to use history as a guide for future patent laws. This was done in 1836 and was immensely successful. But now we’ve veered off course, and with more than a century of experience since 1836, perhaps it’s time for us to step back, evaluate what has happened to our patent system and rewrite the patent statute. In large part, we can simply return to 1836 when Senator Ruggles of Maine took a fresh look at forty years worth of mistakes—promulgated by Jefferson’s refusal to examine one more patent application—and created a vastly improved patent act. But we can even do better that Senator Ruggles. We can simplify even more, eliminating the undesirable aspects of the 1836 Act.
It’s clear that the biggest reason for our inventive demise is America’s complex, over-legislated, under-administered patent system. Inventors need funding to bring their ideas to market, then need an efficient way to keep copiers from undermining these investments. To make that happen they need to protect their ideas—and for that, they need a patent. Colt paid around $30 to obtain a patent that was granted in only a few months, then raised around $230,000 in working capital. Today, that is not even within the realm of possibility. Goodyear was ridiculed for paying Daniel Webster $15,000 to enforce his rubber patent, yet today he could expect to pay several hundred times that amount.
A good part of today’s complexities have resulted from judicial decisions trying to curb the power of patents, patents like those issued to the Wright Brothers. Some might think that a strong patent system will hinder innovation, especially if new improvements can’t be introduced into the market because of a blocking patent. The reaper and sewing machine industries show that simply isn’t true.
Although the reaper and the sewing machine industries developed in parallel, both generating hundreds of patents, and the ensuing litigation proceeded on vastly different fronts, both came to an efficient resolution. With the reaper, infringement cases were relatively limited in number, most likely because the reaper gained commercial acceptance after McCormick’s original patent had expired. Most of the reaper litigation involved enhancements to the original reaper design. Perhaps even more important, McCormick’s request for a patent extension on his improved design was denied, permitting the entire reaper market to incorporate McCormick’s features into their own reapers.
Another way the early patent laws succeeded was by encouraging a diversity of new ideas within a given industry. With the reaper industry, farmers made so many improvements that manufacturers had a wide assortment of new technologies to choose from, thereby eliminating the need to infringe on a competitor’s design. This allowed humble farmers to invent—not massive companies. Although initially crude, the reaper design rapidly refined itself, with hundreds of farmers and mechanics contributing to its ever-evolving design. The potential for being awarded a valuable patent whipped innovators into a frenzy. Although this produced its fair share of overlapping patent rights and numerous patent infringement suits, the cost of these cases was on the order of a few thousand dollars. It allowed the new market entrants to successfully fend off patent infringement charges and allowed them to compete.
With the sewing machine, on the other hand, nobody could make a viable machine without infringing on somebody’s patent because there were so many core patents. The existence of such an arsenal of patents resulted in industry-wide litigation that crippled nearly every company. On the verge of annihilation, the sewing machine companies ended up pooling their patents and coming to what was in essence a gentlemen’s agreement, thereby rewarding patent holders according to the perceived market value of their patents. Although Howe did receive an extension of his sewing machine patent on the lock stitch, the patent system was well suited to permit the parties work out a compromise. With today’s complexities, that would be unlikely.
It is clear that to bring back America’s innovative spirit, we need a more efficient, equitable process. We need a modern equivalent to the nineteenth-century approach. Here is what is needed:
Return the patent models
Until the 1880s, inventors were required to provide patent models to prove that they had actually created their ideas. In part, this requirement was abandoned because drawings were logistically so much easier to file and store. Today we too can easily produce patent drawings, but that sidesteps the real issue. Models aren’t necessarily needed in order to explain the invention, but rather to prove that inventors really have invented something; otherwise inventors can patent the merest whim of an idea.
Today, this happens all the time. Clever patent attorneys lodge patent applications on ideas they speculate will be developed in future years, then sit on their applications until the opportunity arises to attack an unsuspecting infringer. The patents they assert are typically “paper patents,” ideas scribbled on paper but never actually built.
The concept of these kinds of “paper patents” is nothing new. The most famous early case was that of the Selden automobile patent asserted against Henry Ford. Ford spent much of his time and treasure fending off Selden and the Association of Licensed Automobile Manufacturers. The problem stemmed from the fact that Selden never built a working automobile before filing his application, but was a clever patent attorney who manipulated the patent system for sixteen years until the automobile business became a commercial reality. Although he eventually did submit a patent model, it was a non-functioning model, a mere toy car. All this costly litigation could have been avoided if Selden had been required to build his car before filing a patent application—a patent office rule that was eliminated the year before Selden filed his application.
The same could be said for Bell’s telephone patent. He too did not build a working telephone before filing his application. Evidence suggests to some historians that Bell lifted language from Elisha Gray’s patent application that was filed the same day. If Bell had had to file a model upon filing his application, his patent would never have been granted.
Many of today’s critics cry for patent reform because they feel that so many illegitimate patents have issued that they block important technologies from coming to market. Bringing back the models squarely addresses this issue by eliminating paper patents and most of the dubious litigation around so-called “patent trolls” who obtain patents for the sole purpose of obtaining patent royalties from others. These “trolls” prefer to be called “non-practicing entities,” because they have no underlying business. In most cases, there is also no underlying technology.
The use of paper patents, regardless of who enforces them, has clogged our courts with dubious litigation, none of which serves to advance technology. Instead, it merely lines the pockets of those who know how to manipulate the patent system. The number of current patent trolls enforcing patents costs companies billions of dollars.
The granting of a patent right is perhaps the strongest right afforded by our government. We can’t be giving this significant right away based on a poorly crafted document of two pages. The amount of contribution should be commensurate with the magnitude of the granted right. We’ve got to stop granting rights that end up costing defendants millions of dollars without a quid pro quo disclosure. Although individual inventors may be disadvantaged by the requirement for a model (because of the increased expense and difficulty in reducing their ideas to practice), the harm to society is much greater without this evidence. Why give someone a twenty-year monopoly for just jotting down the shadow of an idea and then turn him loose in our litigation system?
Critics may argue that the number of patent applications would drastically fall if a policy requiring a reduction to practice were implemented. They may say that this will curtail innovation. After all, it will disadvantage under-funded inventors who are now required to build their idea before filing for patent protection.
Perhaps, but it will also have the effect of stabilizing the patent system, thus increasing the amount of innovation. After certainty returns, more people will begin inventing. Even more important, the patent laws could be greatly simplified to allow patents to issue more easily. Under current laws, obtaining patents is so difficult (primarily because of the law on obviousness discussed below) that more people would be encouraged to invent and patent. What this means is that the cost of building the invention will be greatly offset by the cost savings obtained by quickly moving the patent application through the patent office. And, historically, when most inventors were from the working class, the requirement to submit a patent model didn’t stifle innovation. Today, the requirement wouldn’t be to make a model, but would be to make it the real thing. Unlike former times, inventors wouldn’t need to locate a model shop, but just build their invention. Ultimately, this requirement is a way for the inventor to show some level of commitment—not by haggling with the examiner for years as is now the case, but by making the inventor show how his idea works.
If the number of patent applications will fall, doesn’t this contradict the goal of increasing innovation? Frankly, it would be a good thing if fewer patent applications were filed in the short run. It would give the patent office some breathing room, a chance to get caught up. The past two patent commissioners have repeatedly stated that one of the most significant issues facing the patent office is the backlog of unexamined applications. When a patent application is filed, it sits in a queue until reaching the top of the stack. Currently, it can take three to five years for a patent to be examined. If people are forced to file better crafted patent applications, they will file fewer and this backlog would quickly dwindle. It would hasten the application’s journey through the patent office because the examiner could actually see the idea embodied, rather than spend time wading though vague language in the patent specification. And it would reduce the number of “enablement” rejections—a patent office requirement that the applicant described in words why an invention will work. This would also be true when enforcing a patent because the parties would not need to argue over whether the patent sufficiently described or “enabled” the invention. With a smaller backlog, examiners could do a better job searching for prior art and examining applications. And, with this new approach, the number of patents with questionable validity would drop drastically—a much better approach to improving quality than rejecting most applications outright as is now in vogue.
When the patent system is fixed, when the patent office can grant a patent in less than a year, and when those patents are quality patents, people will begin to invent and more applications will inevitably follow. With better patents coming out of the patent office, the number of patents litigated will also decrease. Patent rights, now clearly delineated, will stand a better chance of being respected. If a competitor can define with certainty what a competitor’s patent covers, it can design other products that do not infringe, or else negotiate a license. In the event that a patent dispute is litigated, models will provide visual evidence to the jury and help the judge to define the claims, just as the Brayton model did during the Ford litigation. The same thing happened in the McCormick case, where the judge used McCormick’s model to quickly determine that Manny’s reaper didn’t have the claimed raker.
What if inventors were once again required to submit proof of their reduction to practice? How would it work? Obviously, submitting models is problematic. In 1880, the patent office couldn’t deal with the thousands of models it received annually. Today, that number would be in the hundreds of thousands.
One simple solution is to document proof of construction on video. Today, patent applications can be filed by mail or electronically. For those filing by post, a DVD could be submitted along with the application. If filed electronically, a movie file could be uploaded to the patent office web site. After eighteen months, not only would the patent application be published (as is currently the case), but the video could be made available for public inspection. If the patent office wanted to get creative, they could even post them on YouTube.
Of course, there will be cases where a video won’t suffice, as with the workings of many nanotech inventions, such as a fluidic valve, which is a small circular opening of around 100 microns that stops fluid flow by surface tension forces. For these, the valve could be shown working in an overall system, and a blown-up model of the idea could be submitted. For chemical compounds or processes, videos of practical applications could be submitted. Although some accommodations may need to be made for certain circumstances, with today’s technology, submitting proof of actual reduction to practice is a relatively simple endeavor, and one that is essential to preserving the integrity of the patent system.
Many modern inventions are for software. It would be relatively easy to have the inventors produce their code. That is the simplest way to prove they have created their invention.
Of course, the patent office is opposed to this. When asked about bringing back a modern-day equivalent to models, the current Commissioner shouted, “No! Where would I put them?”
He obviously missed the point. We don’t need any three-dimensional models. A simple video clip would suffice. And for that, all the patent office needs is a server.
Abolish the obviousness standard and the doctrine of equivalents
Abolishing both of these requirements will stop the fighting over how meritorious an invention must be before being awarded a patent, while concretely defining the bounds of a patent claim.
In the nineteenth century, patents were awarded to inventions that were “new.” The problem arose in determining what was new. The original test was quite simple: Compare the idea described in the patent with existing ideas, as described in a piece of literature or as shown in a previous patent model, and if the idea was different in any respect, the invention was new.
Over time, a theory began to develop that since patents were so important and powerful, the idea had to be more than just “new.” An inventor had to show something “extra-special” about his invention before being awarded a multi-year monopoly. The real reason behind this was that the courts thought too many patents were getting through the patent office and wanted inventors to show that they had made significant, nontrivial advancements over the current state of technology. If the patent applicant couldn’t do this, the claim would be rejected for being “obvious.” In other words, an idea was obvious to come up with unless it was “truly inventive.” Fine, until you try to determine what is “inventive” as opposed to just “new.”
In reality, no test will work. The current situation in the patent office is so dire that most of this country’s greatest inventors, like Edison and Morse to name a few, would have had their patent applications denied. For Morse, the case would not have even been close. Even Justice Taney admitted that Morse had cobbled together old ideas.
The immediate benefit of eliminating this requirement would be to drastically reduce current backlogs in the patent office. Whereas it now takes three to five years to get a patent, only a few decades ago it was a matter of months.
Some will argue that certain inventions should not be patentable for various social reasons and the obviousness standard serves as a gatekeeper to prevent patents from issuing on those technologies. That misses the point. If you want to protect a class of practitioners, like doctors, just have Congress pass a law saying you can’t sue a doctor for patent infringement and collect damages. But don’t make the patent office the arbiter of what is obvious and what isn’t. That just stifles innovation.
The quid pro quo for eliminating the obviousness requirement is to also drop the doctrine of equivalents. Put another way, the flip side of the “obviousness” test is the “doctrine of equivalents.” Patent holders often cite the doctrine of equivalents to argue that an alleged infringer is violating a patent claim even if the infringer isn’t doing exactly what is spelled out in the claim. The doctrine of equivalents allows a patent holder to expand the scope of the patent so that the infringer cannot make a trivial change to the product and argue that it falls outside the scope of the patent claims. In essence, this is the argument made by the Wright Brothers in their case against Glen Curtiss over the use of ailerons. Although the Wright Brothers won this argument, McCormick in his battle with Manny did not because the doctrine of equivalents didn’t exist in 1850.
By way of illustration, consider the bicycle described in the introduction, with a sensor that sends wireless signals to a microprocessor to determine the power expended by the rider. Rather than use a wireless sensor in the bicycle seat, the infringer may decide to place a wire that runs alongside the brake cable. Using the doctrine of equivalents, the patent holder could argue that, while the infringer’s invention doesn’t exactly do what the claim requires—sending a wireless signal from the sensor to the microprocessor—it is so close that it should still be considered an infringement.
It’s easy to see the problem with this doctrine. How does a competitor know how far he must distance his competing device from the claims of the patent in order to avoid infringement? That is one reason why patent infringement cases end up costing millions of dollars.
Eliminating the doctrine of equivalents dovetails with the abandonment of the non-obviousness requirement. How does the doctrine of equivalents go hand in hand with the obviousness standard? Perhaps some broader patents may issue if the obviousness standard were eliminated (because patents need to be only different than what has been known before), but if the doctrine of equivalents is abolished, the claim scope cannot be expanded during litigation. In other words, if broader patents are granted by eliminating the obviousness standard, the doctrine of equivalents should be abolished to keep patent claims narrow. You can’t have one standard and not the other. But having both simply adds unnecessary complexity, cost, and uncertainty.
Cut the current twenty-year patent term in half
Today, a patent may be enforced for twenty years from the “priority date.” This is the earliest date from which the application claims priority, and is usually just the filing date. In many cases, when the patent office takes too long to issue a patent, the twenty-year term can be further extended.
With how quickly today’s technology advances, there is no need for a twenty-year monopoly. Under the first patent act, the term was only fourteen years. A better term would be ten years, as adopted by the ancient Venetians. If not that, at least go back to the original fourteen-year term laid down by America’s founders.
The major reason why the fourteen-year term was extended was because some inventors were unable to commercialize their ideas in fourteen years and began to complain. It didn’t take long for Congress to change the patent laws so that inventors could petition for a “patent extension.” This enabled inventors to tack on seven years of patent life if the patent holder was unable to commercialize his idea after diligent efforts. In essence, these extensions prolonged the monopoly and reduced competition. Morse, Colt, Goodyear, and Howe all got them, and they all reaped enormous profits from them while keeping out any competition. Eventually, Congress decided simply to give everyone a twenty-year term.
It is clear that if patent terms were significantly reduced, companies would be unable to sit on their technologies and we would be able to get rid of the problems America experienced with patent term extensions. Few realize that many corporations hold patent strategy meetings where the main topic of discussion is to calculate the expiration dates of their main patents, then map out when they should start funneling additional money into R&D, typically within about 3-5 years of their patents expiring. Until then, they are content to just sit on their technology and be prepared to enforce their patents.
Colt and McCormick are good examples of what happens when patent terms are limited. For Colt, extra patent life was nullified when he bribed members of Congress when asking for his second extension. When his patent expired, numerous competitors entered, forcing Colt’s company to continue innovating as well as streamlining his manufacturing process so that he could continue to dominate the market. If his patent had been extended, Colt could have continued his monopoly well past the Civil War.
McCormick, denied his patent term extension, also had to innovate to stay competitive, and he used the American farmer to do this, stimulating economic development throughout the expanding West.
There are other reasons for reducing patent terms. For example, if the obviousness requirement were eliminated, patents would issue much faster, perhaps within a year as they did during the nineteenth century. Similarly, if inventors were required to build their inventions prior to filing, the product would be ready to commercialize and there would be no need for extra patent life while the inventor struggled to build a commercial product. Finally, a principle known as Moore’s law holds that technology doubles every two years. A twenty-year term discourages the kind of rapid innovation that would otherwise naturally occur. At the same time, ten years gives investors plenty of time to earn a return on their investment.
Some, typically the drug companies, argue that they need to have extra life to compensate for the millions or even billions of dollars that it takes to discover and launch a successful drug. Perhaps they should have their own deal, but for the rest of the inventing world, ten years is plenty.
Curtail the continuation practice
A major glitch in today’s patent laws is the practice of allowing “continuation applications,” where applicants can get one patent, then go back in hopes of getting a broader claim in an additional patent. The only limit to how many times an applicant can take another bite of the same apple is the patent term which limits all related patents to a term of twenty years. The twenty year date is calculated from the date when the first application of the group was filed. Big corporations with large bankrolls live by this practice. The problem is that for twenty years competitors have no idea what claims will pop up from the patent office because any number of continuation applications can be filed during the twenty year term. The ability to file an unlimited number of continuations is arguably the single biggest cause of the backlog in the U.S. Patent Office. No other patent office in the world allows continuation applications.
If applicants don’t get the claims they want the first time, they want the ability to keep asking the patent office for more claims until they do—a so-called “fair treatment” argument. This argument does have some merit, especially if the applicant draws an unreasonable examiner who latches onto the flimsiest of “obviousness” rejections. But if the obviousness standard were eliminated so that broader patents could be issued the first time, there would be no need for continuation applications. In turn, this would increase the certainty that an idea will be appropriately protected. Also, if only one patent is granted for each invention, competitors can get to work coming up with alternative ways to build technologies or else negotiate licenses to the original patent, as opposed to doing nothing because producing a competing product is just too risky when you don’t know what other patents may emerge.
The automobile litigation is a prime example. Any system with rules is subject to manipulation, and George Selden was a master at manipulating patent rules. He managed to keep his patent application secret for sixteen years until he obtained the claims he wanted, then asserted his patent against the dozens of newly formed automakers. Selden’s ability to alter his claims over a period of several years had the ultimate effect of crippling the entire automotive industry.
Problems with continuations are similar to those that occurred with the early practices of reissuing patents and granting patent term extensions: namely, they created uncertainty as to when competitors could enter the market. Nowhere is this more evident than with Morse and Goodyear. Their competitors (primarily O’Reilly and Day) were kept at bay for years. Even using creative accounting, Morse and Goodyear should not have been able to extend their patents, yet because they were sentimental favorites, gaining the sympathy of the patent office because of their hardships, they each managed to get themselves another seven years of patent life. Meanwhile, those who assumed that Morse and Goodyear were not entitled to a patent term extension were now faced with how to compete in a patent-dominated market for another seven years.
For the sewing machine industry, competitors never knew how long they had to keep paying into the Combination. Howe’s patent should have expired in 1860, but he managed to convince Congress to extend the patent to 1867. When he tried a second time for another seven-year term, the request was denied.
The reissue practice, still in existence today, creates similar uncertainties because a patent holder can ask the patent office to change his claims after his patent has issued. Colt’s attorney, Dickerson, was able to increase the scope of Colt’s patent when he reissued Colt’s patent right before suing Massachusetts Arms. This too is a doctrine that can be eliminated along with the continuation practice.
The telephone scandal created by Alexander Bell when he filed his patent application should be enough to convince anyone that patents should be granted to the first person who files his patent application with the patent office, not the one believed to have invented first. In other words, if two inventors file on the same idea, the one who files his patent application first is awarded the patent. First to invent is now determined in an “interference” proceeding in the patent office, and takes years and hundreds of thousands of dollars to determine. Eliminating interferences would free up additional patent office resources for examining patent applications. Congress recently passed legislation adopting a first-to-file system. However, it is not a true first-to-file system in that a person can publish his idea first, then wait a year to file his application.
Bell wasn’t the only one who argued he was first to invent. Morse did so twice to keep out alternative telegraph designs. Horace Day tried it too, but Henry Ellsworth discovered the ruse and denied his request. And Singer tried it with Howe, but the judge denied his “rusty claims.” These could have all been avoided with a first-to-file system.
Some may think these measures are extreme, but others have recognized the benefits of a streamlined patent system. The Australian patent office now has an “Innovation Patent” that is similar in many respects to the simplified patent system presented above. To receive an Innovation Patent, the innovation must be new. This means that the invention must not have been publicly disclosed or already known. This is the novelty requirement required by all patents, U.S. and worldwide.
However, the innovation is not tested against an obviousness requirement, referred to internationally as “inventive step.” Instead, it must only be “innovative.” The test for innovation is whether the claimed invention makes a “substantial contribution” over the prior art, a much lower standard than proving an idea is “non-obvious.” These innovation patents issue within months, and after they are certified they can be enforced in court. Similar to the proposal outlined above, these innovation patents have a an eight-year term. It is still too early to tell what impact these innovation patents will have on invention in Australia, yet word is quickly spreading.
Nevertheless, history has proven that a simplified patent system will spur innovation in a remarkable way. It will foster a climate that is conducive for innovation, just as it did during the careers of Colt, Goodyear, Morse, and McCormick.
Is it realistic?
One thing is for certain: piecemeal legislation intended to address narrow issues raised by those with money and political clout will only make matters worse. The patent system needs a serious overhaul, a drastic simplification. Doing so would renew America’s spirit of innovation and open a new chapter in American history. Whether Congress has the fortitude to deliver is another story.