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Bean-Counting Innovation: When Small-Bore Government Patents Job-Killing

| May 13, 2011

Some of the 715,000 patents waiting for review could be equally revolutionary.

FlaglerLive Editor Pierre Tristam’s weekly commentaries are broadcast on WNZF on Fridays just after 9 a.m. Here’s this week’s.

With all the talk of economic development, unemployment and innovation going around, here’s a story you probably haven’t heard about, but that’s more likely to affect your life, for better and for worse, than any economic development summit. It’s about the U.S. Patent and Trademark Office, the agency of the federal government that issues patents to inventors and business, essentially certifying the DNA of innovation.

Last year the office issued 244,358 patents. Most of them are obscure things we’ll never hear about. Some of them are bound to be revolutionary. Think of Eli Whitney’s cotton gin, Samuel Colt’s revolver, Thomas Davenport’s electric motor, Samuel Morse’s code, Linus Yale’s lock system. Think of the innumerable inventions of Thomas Edison all the way down to laser technology, Velcro or nuclear technology: every single one of these inventions was patented. Every single one of them changed the way life is lived—or, in some cases, ended. The machine gun and Alfred Nobel’s dynamite, too, were patented.

There’s good and bad going on with the patent office. The good took place a couple of months ago when the U.S. Senate changed the way a patent is issued and the way patents are paid for. Until now, patents have been awarded to the first person to invent a product, not the first person to file a valid application. That’s created wasteful spending between competing inventors over who exactly had the right to an invention. The new law favors the proper applicant. Maybe it’s not the ideal resolution. But it reduces endless and costly litigation over who really owns an idea.

More importantly, the new law gives the patent office flexibility to keep all the fees it charges, and to charge higher fees to expedite a patent review and render a decision within a year. The office pays for itself by charging about $4,000 per application, less for smaller inventors.

That’s the good.

The bad is that while the Senate passed the America Invents Act by a 95 to 5 margin in March, the House hasn’t taken up the bill. So the present system endures, with all its faults and outdated methods. Worse: the current year’s budget has actually robbed the patent office of $100 million. The budget allows the office to spend no more than $2.1 billion. The rest must go to the Treasury. That’s supposedly part of the scheme to reduce the federal budget deficit. It’s also a clobbering of the national nose for invention to spite the face.

This isn’t the time to delay inventions by nickel and diming the system that enables them. Patents should be speeded up, not slowed down. A patent in biotechnology or chemistry, which includes medical discoveries, takes an average of just under three years to be granted (or rejected). In computer technology or security, it takes three and a half years. For all we know the building blocks for a cure for cancer or immunity from computer viruses could be sitting at the patent office, waiting to be reviewed among a backlog of 725,000 applications. Maybe that’s too optimistic. But for all the obscure little inventions that won’t make a difference, a few are bound to be ground-breaking engines of job creation.

Thomas Jefferson established the patent office as a pragmatic emblem of America’s knack for invention. That knack is being stifled by bean-counters and politicians at the expense of the American economy, and perhaps a better way of life. Too bad there’s no invention that measures a politician’s capacity for hot air. Imagine how useful that would be in Flagler County, land of endless economic development summits that go nowhere. Then again maybe there is, and it’s hung up at the patent office.

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