As I write this, I’m seated in an Amtrak train about 20 miles outside of Syracuse, NY, traveling from Buffalo. The train’s been stopped for about 30 minutes or so as an engineer had to “troubleshoot” the engine and, as I started to write this piece, we have only just started to lurch forward at what I can guess is a brisk 20 miles per hour. It’s 12:20 PM. I overheard another passenger say we were supposed to be in Syracuse an hour ago. I’m headed to Boston and it’ll probably be close to 10 by the time I get there.
Even writing these words is an incredible leap of faith: I’m working, as always, off my rusty, trusty Chromebook. Which can’t run executable files so I always work in the cloud. And the Amtrak’s WiFi isn’t working (I’m having DHCP lookup issues, which I’m pretty sure means they need to restart the router). So I’m not sure that I can even save the words that I’m writing. This could get lost in the ether.
Over the past few years, I’ve written plenty on this website about leaps of faith. That’s what the act of patenting an invention is, to me at least: a giant leap of faith that a certain idea is valuable enough to change the world in some way or fashion. Inventing, from testing an idea to obtaining a patent, is grueling work which someone only undergoes because they have an unshakeable belief in the value of their idea.
These leaps of faith spring from the most unusual circumstances. For example, LASIK eye surgery exists today because an engineer at IBM wondered what would happen if they shot lasers at their Thanksgiving leftovers. It’s a moment which could be derided as complete buffoonery and yet it leads to a discovery that’s fixing the eyesight of countless numbers of people. (I would count them, if this blessed Amtrak WiFi started to work and I could do a simple Google search for the stat. But I digress.) Or look at the story of Willis Haviland Carrier, one of my favorite American inventors as we hail from the same tiny little scratch of Earth which is Angola, NY. He gets the idea for air conditioning by looking at mist formed in the humidity of a Pittsburgh train stop, and he realized that he could control the air’s temperature and humidity by manipulating that mist.
It’s 12:40 PM, and we just came to a halt in Syracuse. I have dining car reservations in five minutes so I hope you’ll excuse me while I grab a bite to eat.
That was nice. The WiFi might be stuck and the engine failing, but you can’t beat the burger I just had.
Back to the world of inventing. It’s been said before that, if you build a better mousetrap, the world will beat a path to your door. The U.S. Patent and Trademark Office is closing in on 10 million better mousetraps. With more than 9.7 million patents already on file, the world has beaten a path to America over more than 200 years because of the unique ability in this country to protect a valuable idea as a private right. Before America’s patent system, the ability to protect technological advances with a patent was the right of kings, a droit du seigneur that stifled true innovation from the masses.
Unfortunately, all too often I’m reminded that today’s American patent system is more droit du USPTO than it is the system for the innovative masses as envisioned by Thomas Jefferson and other of our Founding Fathers. It costs thousands of dollars to obtain a patent. It costs millions to defend that patent against an infringer. Yet insidious narratives on “patent trolls” continue to echo in the rank and file at Congress as if infringement suits brought by tech licensing companies is somehow a new phenomenon and not a system which turned Thomas Alva Edison and Alexander Graham Bell into storied heroes of American innovation. Today’s Standard Oils, the Alphabets and Apples of the world, have mounted an impressive smear campaign that has whipped up a debate which is completely out of proportion with the real problem at hand. For every MPHJ Technologies, there are a thousand Smartflashes, companies who had good ideas stolen and have a rightful case of infringement to take to district court. For every Jay Mac Rust, there are countless Josh Malones: good, decent, forthright individuals who believed in a good idea, took a leap of faith, and are worse off for it. They are worse off for having invested in the patent system in the first place even as their invention is proven valuable by the activities of infringers.
How did we get here, to a place where the USPTO giveth, but the good Patent Trial and Appeal Board (PTAB), it taketh away? We’re not throwing the baby out with the bathwater. We’re drowning the baby in that bathwater and then asking, “Where the heck does this bathwater keep coming from?”
It’s about 4 PM and we’re pulling into Albany. Many eschew train travel for the time it takes but, for my money, there’s nothing as scenic as crossing the land by rail. In the interest of preventing this from becoming a day-long diatribe, I’ll try to wrap my thoughts as succinctly as possible.
After four-and-a-half years of writing for IPWatchdog, I think that one of my favorite things is reading the comments. I may not always interact, but over the past two years I’ve tried to read every single one. It’s great to see the interaction and I don’t mind a harsh opinion or two. God save me from all my uncharitable thoughts, but some of the wilder comments make me laugh. Many more of you make me think. Night Writer, I still owe you a follow-up on McDonald’s and how it hasn’t gone under the way I said it could. Not every single leap of faith I’ve taken has been successful.
One of the greatest moments I’ve experienced doing this work is meeting former Chief Judge Paul Michel. To shake the hand of someone who’s spent a lifetime in service to the law, and who continues to do so as a retired Chief Judge, is personally fulfilling in a way that’s tough to describe. Judge Michel, you are a rock star. The way that you testified as a disinterested observer during the July 13th House IP subcommittee hearing on patents was a marvel to watch. You and a scant few others have been voices of reason standing out from a cacophony of grandstanding opinions which have made the patent reform debate difficult to navigate.
When Gene gave me the idea to write a thought piece, he told me to run with a wishlist idea: What are the three or five things I’d change about the U.S. patent system as it is? I see now that I’ve completely avoided that part of this assignment. Begging everyone’s indulgence, here is a quick list of ways that the nation’s current system of innovation could be improved, from my point of view:
- Find ways to reduce costs to stakeholders in the patent system. The American patent system was not intended to be a sport of kings and yet it takes a king’s ransom to obtain and enforce a patent grant. Filing fees are one thing but district court cases and appeals from those cases can cost millions of dollars. Then there are the trial proceedings of the PTAB which amount to a tax on innovation. Which leads to my next wishlist item.
- End the PTAB. It’s an Article I tribunal with Article III federal court powers to take away property rights. This is a dastardly form of eminent domain and when a patent owner sees property taken from them, there’s a psychological cost, not just a financial one. We are not properly rewarding innovators for the leaps of faith they take in patenting an invention when we open up such an easy avenue for invalidity challenges.
- Make PACER cheaper than 10 cents per page for digital access. This one’s a bit of a personal pet peeve, but wasn’t the American court system, just like the American patent system, supposed to be highly accessible to all? That should mean low cost for access to information on how that court system is behaving. 10 cents per digitally scanned page sounds low but it can add up when you have judgments reaching 30 to 40 pages or about 20 some-odd motions to sift through to find the particular information needed. Maybe I feel this more acutely as a journalist covering many cases but it doesn’t feel like the world’s most cost-effective system.
- Revive the concept of a patent as a private right. As a dues-paying member of the Libertarian Party, I often have conversations with those who want to do away with all government intervention. To them, patents and their enforceable rights look like a government-mandated monopoly, the kind of intervention which consolidates power and produces the ills of crony capitalism. But the entities who benefit most from a strong patent system with enforceable rights are the smaller players who do not have big pockets: the only market power they wield is the right to make sure that their idea is being commercialized in the way that they want. Whether my views on most government regulatory activity differ from the mainstream opinion I’m often surrounded by, it’s clear to me that a strong federal-level system of patent rights offers a virtuous cycle through which a private citizen can greatly profit from the value of a good idea.
- Create a special patent court to replace the either the Federal Circuit or the Supreme Court. How many more times do we have to see damaging jurisprudence stemming from either the Federal Circuit or SCOTUS to realize that we need justices who better understand the complexities of patent law and the ramifications of case decisions in that area? China not only has broader patentability than the U.S. (which is driving venture capital away from our market and into theirs), it has a special patent court which is plaintiff friendly and seems exceptionally fair to foreign plaintiffs. And patent applications are skyrocketing with over one million Chinese patent applications filed in 2015. It seems incredible but, though it may make House IP subcommittee chair Rep. Darrell Issa (R-CA) chortle with amusement, patent owners are offered more certainty in China than the U.S., at least in the current incarnations of both systems. Patents are too important to the nation’s innovation economy not to have a dedicated intellectual property court, especially in the current environment.
As I’ve written this article today, a cheery Amtrak attendant has walked up and down the aisles many times, encouraging people to meet strangers in order to earn a free button. Talk about a leap of faith, getting strangers to communicate while on public transportation. You might as well walk into a bar and tell everyone there to go to church the following morning. And yet she continues, sure that she has the right idea: getting people to interact instead of keeping their noses in their smartphones and devices. And wouldn’t you know it, I ended up with one of those buttons.
Inventors, I enjoy watching you continue to make a leap of faith that better solutions to today’s problems remain to be found. Patent owners, including the licensing firms, I’ll continue to watch you make leaps of faith that your private property right is worth defending in court. And if my own leap here isn’t too far off the mark, maybe I’ll be lucky enough to get these 2,000 words published and get a discussion started.