Steven Scanlon and Jones Day wrote a good article, "High Quality Patents-- The Objective Analysis". It is featured under "Economy and Public Policy" here in Industry Week today, Nov 16th. In the article they discussed President Obama's call for more US patents, and the factors that make an invention patentable. It should be a chapter in a textbook. Their point of departure was the question of what is a "High Quality Patent". They defined it as a patent that met some very important technical legal tests for a patentable invention. They also asked the question of how we could identify an idea as a candidate for a "high quality patent".
So - what does it mean on a daily basis? President Obama is an academic, he is a product of the US university culture. Academics live or die by the number of papers they have published. Not only published, but published in prestigious peer reviewed obscure scholarly journals. Not only published in the above referenced journal, but referred to in subsequent papers published in said journals. Academics keep stats every bit as complicated as baseball players- and their pay and career depend on these stats. (Unfortunately many times teaching effectiveness is not considered an important statistic.)
A 20 inch article on sheep scabies treatment, published in the "Uinta County Herald" in Evanston Wyoming, just does not have the punch that an article on the scabies genome would have in "Nature" in Basingstoke Hampshire England.
Likewise a patented cast iron wrench may not be viewed having the ultimate impact of Bell Lab's transistor. (unless it hits you between the eyes).
I think that President Obama, our Academic in Chief, is calling for the US to patent a pile of "transistors" " Lasers" "internal combustion engines" "telegraphs" and "light bulbs". These are the disruptive inventions of the past, that literally changed our culture, lifestyle, and the condition of the majority of people in the world. If he only wants to patent this level of innovation, what is the risk?
When we invent something here, develop it here, manufacture it here, learn from it here, apply it here, integrate it here and utilize it here, -Then we profit from it here and it benefits US here.
The "Innovation Chain".
If any of these things are outsourced, then we lose the benefits. If we drop the any of these links, we lose.
Can we determine, in advance, what a high quality patent will be? And only fund those? Only patent "the one"? I don't think so. Which is more important? Morse's telegraph? Or blacksmith farmer Cornell's overhead transmission line and insulators? Cornell University is named for him, and, he died broke.
For half my life I worked for an organization that prides itself on research and invention. Did we invent? Yes. Did we innovate? Yes. Did we work on disruptive technologies? Yes. Did we patent? No. Our "administration" did not usually foresee an immediate cash return. Did others patent our work? Sometimes. Were these patents valuable? Yes. Did the patent holder make money? Yes. Did we have our research "patented out from under us"? Yes.
I don't think we can really foresee the impact of a patent in many cases before it is written, nor can we see the 2nd, 3rd, and 4th order impacts. Like Cornell's transmission line, sometimes we have wait for an Edison's light bulb and Westinghouse's alternator to really see the mass application of the technology.
Sr Richard Branson is using a hybrid rocket engine for his suborbital spacecraft. He will undoubtedly have to pay some royalties. Will I benefit? Will the group I worked with? I worked on dozens of hybrid engines, over almost 20 years. The people I worked with didn't patent our innovations ( or feel a need to publish). Others did. Sr Richard will pay them. As it is, so many of "our" practices have been patented by others, well, we pretty much got fenced out of what had been "our" field.
The real danger to the US is not that we will waste money patenting a couple of million worthless ideas, the real danger is that we will miss the half a dozen that will cost the US billions in lost opportunities.
High Quality Patents -- The Objective Analysis
As we strive for the high quality of patents sought by President Obama's Strategy for American Innovation, we should thus strive equally to avoid subjective judgments of what does or does not qualify as a patent-worthy invention. By Stephen Scanlon, Jones Day
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Frank R. Chloupek
Web Development Director
IndustryWeek
But with the genuine institutional lack of patent enforcement by a nation that shall remain nameless, what is the reasoning for the patent process now? Seems to me to resemble gun control, as only the law abiding will comply with the law and observe the restriction on producing patented products.
I think that one of the best reasons to patent is to prevent someone else from patenting the idea. Right now, the common wisdom is "if it is common knowledge it can't be patented". I will right now, absolutely state, NOT SO. Many patents are issued that are the result of parallel work.
To use the item I mentioned above, the Hybrid Rocket Engine, ( not an overly important innovation, but fun) Many people have worked on it for about 40 years, including the US Air Force and Thiokol. USU worked on it from 1990 to 2009. When I looked last year at joining several individuals to take it private, well, in the last 5 years there has been a pile of new patents. Almost all of them cover technology that we assumed was well known. Most of them covered things we had done, and made no secret of. If this can happen with the US patent office, on work done here, how much easier will it be to have conflicts as foreign companies take out patents here and in their own countries. Any of these could cause problems for a private company.
The idea that a patent will prevent an Albanian (that is the country you were referring to?) company from competing with you is probably false, but under US law, it is comparatively easy for them, or their US distributor, to sue you in a US court and cause you to show cause why you should be allowed to use "their" patent. The US is party to several patent treaties, we enforce them, whether they do or not.
In our case, the rockets, several small private research groups, with good patent attorneys, have tied up the field. Yes, it may be possible to win in court, but this field is thinly capitalized, tough to get funding, tougher with possible lawsuits.
What does this have to do with national policy? Remember the KODAK instant camera? Kodak was sued by Polaroid. Kodak had to withdraw from the market, if I remember, the item in question was a small but critical spring. In this case it was two US companies, We could waste a lot of money on alternative energy etc, and risk segments of the manufacturing base, if foreign companies get a patent monopoly.
My position is that while the wording and documentation of a patent can be indication of quality, the utility of the item patented is much more important. And we cannot always see in advance how important that sometimes small item can be.
High Quality Patents - what does it mean?
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