Why Has America Stopped Inventing? By Darin Gibby, Esq., Morgan James Publishing, New York, 2012
Patents are boring, nobody wants to deal with them, and few people can understand them. Yet we all somehow know that they play a significant role in the nation’s destiny, says historian and patent attorney Darin Gibby in his intriguing and entertaining new book Why Has America Stopped Inventing? We are the country that gave the world the automobile, the airplane, space flight, the computer, and too many medical breakthroughs to count, Gibby says. Early American inventors developed the cotton gin (Whitney), vulcanized rubber (Goodyear), a repeating firearm (Colt), the sewing machine (Howe/Singer), the telegraph (Morse), a wheat reaper (McCormick), and the airplane (Wright). Those individuals often were heralded as celebrities even in their own time, and the lawsuits they brought to enforce their patents, or in some cases defend their knockoffs, caught the attention of notable attorneys like Abraham Lincoln, Edwin Stanton, William Seward, Stephen Douglas, and others.
So why are we unable to continue the tradition of groundbreaking inventions of the kind that made our country great, asks Gibby. Today, the numbers of patents issued to Americans has plunged. Today, Americans on a per capita basis are granted fewer than half the number of patents issued a hundred and fifty years ago. Gibby’s figures are mirrored locally, in Maryland, where innovation activity slipped year over year. Globally, countries like China are expected to surpass the U.S. in the number of patent applications filed, according to Senator Patrick Leahy during debate last year over the America Invents Act (AIA). What caused the innovation decline in this country? Where have all the American inventors gone?
The answers lie, as they often do, in lessons from the past. Gibby’s historical journey takes us back to the enactment of the very first patent act in 1790, and into the office where Thomas Jefferson personally examined every patent submission, an overwhelming task that led Jefferson and others to craft a new law in 1793, one which eliminated substantive examination of patent submissions. The patent law amendments of 1863 reinstated examination, which continues today at the U.S. Patent Office in Alexandria, Virginia. Gibby reveals how the changing patent landscape profoundly impacted industries as well as individuals.
One significant difference between great inventions of the past and those being conceived today, Gibby says, is where they were conceived: the vast majority of inventors during the 19th century were ordinary individuals working alone, often on farms or in shops. A century later, researchers flocked to the safety of corporations. In the past, it cost a few dollars to submit a patent application. Today, high legal fees prevent many individuals from seeking patent protection for their ideas. Moreover, Gibby says today’s patent laws give lip service to helping the little guy, as those in power do not want thousands of individuals getting patents, which would result in courtrooms filled with litigants looking to make money and bring industries to a screeching halt—just as the Wright’s airplane stabilization invention did to the fledgling aircraft industry, Gibby notes. Existing patent laws make obtaining patents harder due to the “obviousness” test, and the Supreme Court makes it easier for courts to invalidate existing patents. It is all but certain, Gibby argues, that America’s most popular inventions of the past would be deemed obvious under today’s onerous rules.
“And so large corporations—those with enough money to fight the battle—manage to get patents while other do not. . . . Congress and the courts have stifled innovation among the very class of inventors that we want to be inventing,” writes Gibby. “Today we award patents to only the wealthiest of corporations with the financial means to battle with the patent office.” And that is why the little guy in America stopped filing patent applications.
Where will innovation activity in this country be a year from now, or a decade later? That depends, Gibby says, on whether we make certain patent reforms to help individual inventors. Gibby advocates for a return of the model requirement, or something similar to it. Inventors of the past had to supply scale models of their inventions to the Patent Office, effectively demonstrating what they had conceived and the metes and bounds of their inventions. The model requirement was abandoned by the Patent Office in 1880. Today, inventors can patent a concept without ever making their invention. If every person seeking a patent had to make a model of their invention, there would be fewer patent applications and better quality patents being issued.
Gibby also advocates for a 10 year patent term, rather than the current 20 years (which is based on the date of filing one’s patent application); requiring patent applications to be examined in less than six months; elimination of the “obviousness” test for patentability, abandonment of the judicial doctrine of equivalence; and limitations on the number of continuation patent applications an inventor can file from an original patent application. With sweeping patent reforms being enacted under the AIA just last year, and most of the AIA’s provisions not even implemented yet, no one knows whether Gibby’s proposals will be considered any time soon. If American innovation continues to slip behind other countries, however, it will not take long for others besides Gibby to stand up and say more needs to be done.