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Patents as Drivers for Invention: Why the America Invents Act is Improperly Named

by Orlando Lopez

There are many studies and colloquial expressions that relate patents to innovation.  For example, it has been considered by some that patents spur research and development (see, for example, the discussion on this topic in the Berkeley 2008 patent survey).  However, some other anecdotal evidence (hopefully my litigation counterparts would not cringe at my use of the term “evidence” in a colloquial way) indicates that innovation is a result of the human desire to create, and it is not fueled or hampered by patenting.  An example of such a situation that I’ve personally witnessed, was in the mid-1970’s.  A senior physicist, who we will call Vern, and a young physicist were studying alternate fusion concepts.  In studying one of the concepts, Vern proposed from basic energy arguments an amazing result.  At first look, one would consider that it violated the second law of thermodynamics (the law that prevents perpetual motion machines).  The young physicist went off and performed computer simulations verifying the amazing result.  They both looked at each other and said, “We should patent this.” The proposal to patent was considered by senior management, who concluded that there was no financial gain and nixed the idea of patenting.  The senior physicist does not appear to have any patents to his name,but as of 2010, Vern was still creating new ideas and putting them into practice.  The resistance by upper management against patenting did not prevent Vern from innovating.  It would probably take physical restraints to prevent a creative mind like his from innovating.

While innovation is the product of a creative mind, patents relate to property, although intangible property, and the decision to acquire property has a strong economic/financial component.  The questions to be asked in deciding whether to patent are not the “why?” of the scientist or the “isn’t this neat/cute?” of the creative mind, rather the two classical questions of marketing:”so what?” and “who cares?” In deciding which of the inventions to patent, the problem being solved (so what?) and the market being addressed by that problem (who cares?) should be strong considerations.

The relationship between patents and innovation was best described by President Lincoln, an American not known as an inventor although he did have one patent.  He said that patents “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.” The economic effect of innovation can be affected by the act of patenting; therefore, the America Invents Act should actually be called the “America Profits From Invention Act (or the APIA); however, the more accurate name would not have the same appealing effect.  I hope that we do not confuse that which we do for marketing impact as compared to the actual product.




One Response to “Patents as Drivers for Invention: Why the America Invents Act is Improperly Named”

  1. Leonard Heyman says:

    Regarding your Opinion piece in ACC, I have a few thoughts. The first thing that came to mind is, yes, patents are intended to protect profits. Patents were not intended to protect basic research performed by scientists studying far-off technologies such as fusion. Given that we have yet to see a commercially feasible fusion reactor, I’d say your physicist’s senior management was quite correct in choosing not to patent their discovery in the 70s. Even if they attempted such, it was probably not patentable anyway without being able to provide an enabling disclosure. As a patent attorney, I’m sure you understand this.

    It’s hard to imagine how patents impact innovation and commerce since it requires imagining a world without patents. However, Thomas Jefferson lived in such a world, and was in fact very skeptical of patents. I currently work in the software industry, and many people in this field regard patents with a great deal of skepticism, which is reminiscent of what Thomas Jefferson said as an inventor, before taking on the role of the first patent examiner in the United States. His statements opposing exclusive rights to intellectual property are well known and often quoted. Example: http://movingtofreedom.org/2006/10/06/thomas-jefferson-on-patents-and-freedom-of-ideas/

    But the truth is, after being in the role of the first examiner for some time, Thomas Jefferson reversed himself, and supported the patent system because he came to appreciate the power of the incentive to innovate brought by patents, stating patents have “given a spring to invention beyond his conception.” http://www.monticello.org/site/research-and-collections/patents

    Something to think about.

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