Posts Tagged ‘patent’
It has been two year since I published my book The Decline and Fall of the American Entrepreneur: How Little Know Laws and Regulations are Killing Innovation. The book explains that the only way to increase real per capita income is by increasing our level of technology. This can be accomplished by capital equipment purchases, which upgrade plant and equipment with newer technologies or by creation of inventions. Since the United States is a leader in technology, we do not have the choice of just upgrading to new technologies produced in another country. So we must create new technologies if we want our economy to grow. There are two ways to encourage the creation of new technologies; government funding or private investment in inventions. Government spending on research and development is not nearly as effective as private spending – see Solyndra. A study by the Small Business Administration shows that most emerging technologies are invented by small entrepreneurial start-ups. Unfortunately, since 2000 the U.S. has undermined the three foundations on which technology start-ups are based. Those three foundations are intellectual capital, financial capital, and human capital. We weakened the intellectual capital foundation by weakening our patent system, we weakened the financial capital foundation with the passage of Sarbanes Oxley, and the human capital foundation was weakened by the accounting rules that required the expensing of stock options.
Since my book was published the intellectual capital foundation has been undermined this year by the passage of the America Invents Act and the financial capital foundation has been undermined by the passage of the financial reform bill (Dodd Frank). There has been no change on the human capital front. There is mixed news on the intellectual capital front.
These problems are being exacerbated by the budgetary issues associated with aging baby boomers. The Obama and Bush administrations compounded these problems by expanding Medicare to prescription drugs and the passage of Obama Care. In 2010, Medicare/Medicaid and the Children’s Health Insurance Program (CHIP) represent 21 percent of the federal budget. Social Security represents about 20 percent of the federal budget and interest payments represent about 8 percent of the federal budget. It is estimated that about 10,000 baby boomers will go on Medicare per day for the next twenty years. However, about 5000 seniors are dying per day. Each Medicare recipient costs about $10,500, so Medicare costs will expand by $185 billion dollars (today’s dollars) or another 5% of the federal budget. Roughly, the same calculation applies to social security. So Medicare and Social Security will consume approximately 50% of the U.S. federal budget by 2020. In addition, the interest payments are likely to consume around 30% of the U.S. federal budget. This means that 80% of the federal budget will be spoken for. This does not include any additional costs for Obama Care. It is unlikely that the federal budget as a percentage of the economy can grow, since the U.S. had to borrow one third of the federal budget in 2010.
Here are my predictions for the next decade based on this background. I provide an optimistic, most likely, and pessimistic scenarios. Note these scenarios are based on what I believe is most likely to occur, not what I believe is the best that could be done or the worst that could be done to the U.S. economy.
Predictions Common to all Scenarios
Properties rights of all kinds will continue to be weakened. It appears that you can get a PhD. in economics (or even win the Nobel Prize) without understanding even the most basic ideas of property rights and how they affect a free economy. Even so called free market economists forget that Reagan not only cut tax rates, he strengthened property rights. Particularly he strengthened patent rights – for more information click here. He also strengthened property rights by weakening regulations and weakening the power of unions. A number of so-called free market economists do not understand that property rights are based on productive activity. As a result, they have joined in an all attack on property rights for inventions – patents. For more information see Scarcity Does it Prove Intellectual Property is Unjustified.
One change from last year is that all the Republican candidates have come out for repealing or curtailing Sarbanes Oxley and the Financial Reform Bill. There may be hope that entrepreneurial companies will no longer be starved for financial capital if the Republican’s win the presidency. It appears unlikely we will strengthen property rights for inventions or property rights generally or signficantly strengthen our capital markets so they work for start-up companies, the most optimist scenario is limited to subpar growth.
The growth of the Internet will result in a continued decline in commercial real estate values under all scenarios. Commodity prices are likely to increase, inflation adjusted, under all circumstance. Growth in China and inflation will drive this increase in commodity prices.
Optimistic Scenario (This is Unchanged from 2010)
This scenario assumes that the U.S. faces up to its budgetary problems, repeals Obama Care, and rationalizes it tax structure. This scenario assumes that Obama is not elected for a second term. Government spending will grow slightly as a percentage of GDP. Supply Side economists would probably consider this enough to create vigorous economic growth. However, it does nothing to really encourage investment in new technologies. As a result, real inflation adjusted GDP growth over the decade will probably be around 2%. Median household family income after taxes will be stagnant. This will be two decades during which median household income has not grown in the U.S. I believe that will be the first time in the history of the U.S. this has occurred.
The housing market is likely to be stagnant since family incomes will be stagnant. Inflation is likely to run 4-6% (Note that it appears that government is determined to lie about the inflation numbers, so it will be hard to determine the real inflation rate), but this will not be enough to cause appreciation in housing prices. In fact, inflation adjusted housing prices will likely decline.
The best economic opportunities will be in government related jobs or businesses. Commodity based business will also prosper. Technology entrepreneurs will be few and far between. Unemployment numbers will hover between 7-9% throughout the whole decade – this will be the new normal. The U.S. will no longer be the largest economy in the world and based on per capita income among large countries the U.S. may fall below the top ten in the world. The U.S. will also be one among many equals in technological and scientific leadership. All social ills will increase slowly including crime, number of welfare dependents, and black market transactions.
Most Likely Scenario
This scenario assumes that the U.S. will not face up to its budgetary problems and Obama Care will not be repealed completely. Under this scenario, the U.S. will go from financial crisis to financial crisis. Each financial crisis will be meet with a short term band-aid solutions. Federal government spending will grow to at least 30% of GDP and total government spending will be 50-60% of GDP. Inflation will grow to 10-14% by the end of the decade. Despite this, housing prices will not keep up with inflation. Median household family income after taxes will decline by 2-7%. Official GDP numbers will show slightly negative growth, but this will over state the actual growth rate.
The best economic opportunities will be in government related jobs or businesses. Commodity based business will also prosper. The financial differences between those who are in the government’s favor and those who are not will be huge. Technology entrepreneurs will be almost nonexistent. The brain drain from the U.S. will be apparent and a cause for anxiety. Unemployment numbers will hover between 9-15% throughout the whole decade. The U.S. will no longer be the largest economy in the world and based on per capita income among large countries the U.S. will fall well below the top ten in the world. The U.S. will also be a declining power in technology and science. All social ills will increase moderately including crime, number of welfare dependents, and black market transactions. The chance of a major war in the world will be moderate.
The U.S. will not face up to its budgetary issues even to get through a crisis. The U.S. will either literally default on its debt or inflation will be over 20% or both. Multiple states will go bankrupt and be bailed out by the federal government. Tax burdens will skyrocket as will the black market. Housing prices will decrease significantly except in extremely exclusively neighborhoods. Social order will collapse. The pretense that the U.S. is a nation of laws or that the Constitution has any meaning will be completely destroyed. There is a possibility (15%) that there will be a military coup. Alternatively or in combination there is a possibility that the U.S. will break up into a number of separate countries. Many parts of the U.S. will decide that it no longer makes sense to support Washington, Wall Street and parts of California that have become use to crony capitalism and government handouts. The brain drain from the U.S. will be well known and huge. This may be the driver for politicians and voters to demand real reform. China and India will dominate the world economy. Unfortunately, neither will likely fill the U.S.’s shoes and become a technological and scientific leader. Singapore will likely be the richest country in the world on a per capita basis by a large margin. They will be the major center of technological and scientific research. The chance of a major war in the world will be probably.
The best reason to be more optimistic is that the U.S. has never had two bad decades in a row. In the late 1930s and late 1970s there was no reason to suppose that the U.S. would right itself economically. We pulled out the 1930s because Roosevelt realized that he had to adopt pro-business policies if the U.S. was to have any chance of winning World War II and so did the voters. In the 70s, there was little hope that the U.S., let alone England, would pull out of the inflationary spiral, increasing unionization, increased regulation, increasing government spending and entitlements. However, there was the glimmer of Ronald Reagan and a surge of free market economists such as Milton Friedman, who still understood property rights. Unfortunately, I do not see a Ronald Reagan on the horizon and many of today’s free market economists are overly focused on the detrimental effects of Federal Reserve and high marginal tax rates. Very few seem to understand the importance of strengthening property rights, particularly for inventions or the need to free up our capital markets from regulation. I hope I am wrong and there is a politician who understands property rights, particularly for inventions, and the need to free up our capital markets, while having the strength to stand up to government unions and special interests.
I cannot decide if we are seeing the collapse of Western Civilization under the weight of the welfare state (socialism) or if we are seeing the last hurrah of the welfare state.
According to the paper, Korea’s Patent Policy and Its Impact on Economic Development: A Model for Emerging Countries?, a strong patent system is a positive part of encouraging economic growth for emerging economies. The paper points out that:
Korea has long been a proponent of strong patent protection and of the need to maintain a robust, well-functioning patent office that supports the development of local technology. That view is consistent with the notion, to which Korea subscribes, that the patent system can help promote and sustain healthy economic development, particularly in emerging-or newly industrializing-countries. P. 443
Korea’s economic results have been some of the best among emerging countries.
In the early 1960s the Republic of Korea (Korea) was the poorest country in East Asia with a per capita income less than half that of Ghana or Honduras, and a per capita GDP of approximately $160. Today, Korea has achieved the status of a newly advanced economy. It ranks thirteenth in the amount of trade generated, fourth in the number of patent applications filed in 2008,3 and by 2007 its per capita GDP had risen to $20,000. P. 442
Korea has put real teeth into its patent laws and even has criminal provisions
There are serious consequences for infringing a patent right under the Korean Patent Act. A patentee is entitled not only to an injunction to prevent the infringing activity, but also to demand destruction of the infringing articles, and a patent infringer is subject not only to damages, but also to criminal sanctions, including imprisonment. P. 458
Korea requires separate compensation for inventions of employees.
The Korean patent law requires that inventors who are employees be compensated for their inventions. P. 461
Korea’s creative use of the patent system to promote technological capacity has arguably been a significant factor in the country’s economic growth. P. 480
Erstling, Jay, “Korea’s Patent Policy and Its Impact on Economic Development: A Model for Emerging Countries?” (2010). Faculty Scholarship. Paper 138. http://open.wmitchell.edu/facsch/138
The The Decline and Fall of the American Entrepreneur: How Little Known Laws and Regulations are Killing Innovation , is now available in Kindle format for only $7.99.
*New US laws since 2000 are killing US Innovation
*Explains why the venture capital model is dying.
*Innovation is key to creating high quality jobs
*Innovation is key to increasing real per capita incomes of Americans
*How to make the US the innovation leader of the world again
What others are saying about the book
Mr. Halling combines two topics — the impediments to entrepreneurship that have been created by the U.S. government as an unintended consequence of its pursuit of other goals and the systemic weakening of the U.S. patent system by the U.S. Supreme Court and the Congress.
The resulting technological stagnation is a major reason the U.S. has gone from producing 25 percent of the World’s Gross Product in the mid 1990s to about 20 percent today. The loss is significant – about $3 trillion of U.S. GDP in 2009 alone.
He demonstrates in clear terms the linkages between economic growth, productivity, and income. And he lays out how technological advancement has always been the American advantage in global competition, an advantage that the U.S. is squandering.
Dr. Pat Choate, economist, former Vice Presidential running mate of Ross Perot 1996, Director of the Manufacturing Policy Institute, Phd. Economics University of Oklahoma
“Dale Halling’s Decline and Fall of the American Entrepreneur makes a compelling case for the need to reform regulatory and other policies that hamstring entrepreneurial innovation in our country. Everyone concerned about the decline in American innovation should read this book.”
David Kline, Coauthor of “Rembrandts in the Attic” and “Burning the Ships”
The Decline and Fall of the American Entrepreneur presents the issues facing technology start-up companies in today’s environment. The book sheds light on the underpinnings of these issues and is enthralling. Halling’s tight, accessible and personal style make this a fast and compelling read. His book is a political clarion call that should be heard now.
Greg Jones, Former President Ramtron International (RMTR) and CEO Symetrix Corporation. Both companies founded on IP.
This book conclusively establishes the link between innovation and per capita income, and shows that we have recently entered into a time in which innovation is under assault. This assault has resulted in a predictable loss of income and contributed significantly to the economic woes we are experiencing right now. The book’s sound policy recommendations suggest a way to turn the economic ship around to set a course for a return to prosperity.
Peter Meza,Patent Attorney – Counsel Hogan & Hartson, Attorney for Alappat – In re Alappat
In a January 2, 2011 column (Needed: A science stimulus) in the Washington Post, George Will points out that the US is suffering from a lack of innovation. He makes a token node to the patent system in the article and then he focuses on government spending on science and engineering and does not mention the patent office is underfunded. George reflects Washingtons and the elitists attitude that government spending is what drives the economy. He just believes government spending should be directed to science. In addition, he repeats the elitist comment that most of the science is done by the elite and us peasants don’t really contribute much.
The late Nobel laureate Julius Axelrod said, “Ninety-nine percent of the discoveries are made by 1 percent of the scientists.”
This elitist attitude contradicts all the available evidence. As the book, The Most Powerful Idea in the World, discussed in Georges’ article points out, sustained economic growth does not happen until property rights for ideas (patents) are enacted. This releases a flood of inventions, not by the elite, but by ordinary citizens. It was the democratization of the inventing process that lifted the masses out of the Malthusian Trap.
Another study shows that start-up company success is tied to patenting success. The authors of the study are a pair of professors of finance, Jerry Cao of Singapore Management University and Po-Hsuan Hsu of University of Connecticut. Perhaps the key finding is:
Start-up firms that successfully file patents before receiving any VC investment and more likely to complete IPOs and less likely to fail or be acquired.
The study shows that
67.39% of patenting VC investees successfully completed the IPO process, whereas only 14.81% of VC investees without patents did do.
On the other hand, only 3.47% or patent-filing VC investees filed bankruptcy, in sharp contrast to the 10.12% of VC investees without patents who did so.
This study clearly shows that patents are critical to the success of start-up companies.
Some people are suggesting that Congress has the power to abolish patents and copyrights in the United States. The argument is that Article 1, Section 8, Clause 8 of the Constitution states “The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries” and whether they exercise this power is optional.
This interpretation relies on the idea that when Congress is granted a Power it is unlimited. The United States was founded on the idea that Government power is not unlimited like the Devine Right of Kings. The United States was founded on the idea that powers of government are limited and come with duties, while Rights of citizens are unlimited and do not come with duties. I know this will come as a shock to those people raised on the modern liberal interpretation, which wants unlimited powers for government and sees the Bill of Rights as a list of negative rights – see Barack Obama. Congress, under Article 1, Section 8 also has the power to set “an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” This is not optional on the part of Congress, with the power comes the duty to establish these rules.
The interpretation of the Constitution that suggests Congress has the option to establish systems to protect inventors’ and authors’ rights is totally inconsistent with the history of the Constitution. The purpose of the Constitution was to set out the powers of the federal government. Article 1, Section 8 lists the powers but also the responsibilities of Congress. For instance, even the power to declare war comes with the responsibility to do so when the U.S. is under attack from foreign powers.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men,
It is well known that the unalienable Rights of the Declaration of Independence are the Natural Rights of Locke – Life, Liberty, and Property. Many people believe that Jefferson changed property to the pursuit of happiness because he was worried it would be interpreted as endorsing slavery. When the Founders used the word “right” they meant natural rights. The purpose of government is to secure these rights. When the Constitution states that inventors and authors have “Rights” in their creations, they mean natural rights and they understood that the purpose of governments was to secure these rights. This means that Congress has a duty to secure the rights of inventors and authors under Article 1, Section 8, Clause 8. If the words patent and copyright are meant as rights in inventions and writing, then it is clear Congress does not have the option of eliminating them. It is also clear that patents and copyrights are not limited by the preamble. Natural rights are not utilitarian, but are endowed on men by their Creator.
Judge Paul Michel has an excellent article in JPTOS. Judge Michel first explains that the economy and a well functioning patent system are connect.
The primary engine of American recovery and resurgence will therefore have to be an improved patent system. Without that, both short term recovery and long-term prosperity will be stunted. By “system”, I mean primarily the Patent and Trademark Office, and the Federal courts, which along with the International Trade Commission provide the only mechanisms to monetize patent value.
Next he points out one of my main complaints about the patent publication requirements – we are giving away our technology
Because most applications must by law be published at 18 months, others, including foreign competitors, can pirate inventions for years before the patents issue, for until then patent owners have no rights.
Michel then discusses the damaging effects of fee diversion from the patent office.
In addition, the Congress must guarantee the PTO will keep all fees. Since 1992, Congress diverted over 900 million dollars in patent fees to other uses. ‘This fiscal year Congress, once again, will not allow the office to keep all the fees it expects to collect; an estimated $150-250 million will go elsewhere. Permanently ending such “fee diversion” is necessary to reviving the PTO. If Congress continues diverting fees to other purposes, raising fee levels will have little effect. In addition, is it fair that fees provided by private patent applicants finance other government activities?
Finally, he suggests PTO satellite office, which has been a hot button of mine.
What else? Let the PTO open satellite offices, in places like Detroit, and Houston, and hire unemployed engineers who are already experienced IP professionals. But again, Congressional authorization is needed. Under current law, most employees must work in Alexandria, Virginia. Congress also controls the pay structure for examiners. The General Schedule that sets pay for civil servants should not apply to the scientists and engineers in the patent office. Industry would willingly pay higher fees to enable the PTO to pay more competitive salaries to highly-skilled examiners. Congress should raise these pay levels.
My good friend, Gene Quinn, of IPWatchdog, has am interesting post on the present patent reform bill. http://www.ipwatchdog.com/2010/04/04/kappos-round-table-listening-continues-on-campus-of-uspto/id=10002/
Interferences & Independent Invention
If there were only 55 interferences last year, how come all the people calling for patent reform state that independent invention happens all the time? If independent conception of inventions are so common you would expect a lot more interferences. While I would grant you that the PTO is very reluctant to declare interferences, even taking this into account it shows very little independent invention. So all the people calling for patent reform claiming that technological progress is inhibited because they are not allowed to practice their independent inventions appear to be disingenuous at best. What is more likely is that they have not independently derived these inventions and they just do not pay a license fee to the true inventor.
First to File vs. First to Invent
The proposed solution for the first to file conversion is the scaled down one year grace period. Your post clearly points out the limitations of this provision – namely it only protects the inventor against bar issues, but does not protect them from thieves that file a patent before the true inventor. This does nothing to preserve our patent system for independent inventors or start-up companies. No one with any resources and knowledge will rely on this scaled down one year grace period. Within a decade of having passed this reform, people will argue that the one year grace period is meaningless and we should just move to a true first to file system. Given the cost of filing a patent this will be the nail in the coffin of American Entrepreneurialism. The patent system will just be for large entrenched companies who create incremental inventions.
Cost of Interferences
Your argument sounds logical. Since most independent inventors cannot afford the cost of an interference, we will just get rid of them. This correctly identifies the problem, but proposes an unjust solution. A just solution is to reduce the cost, time, and formalism associated with interferences. Logically, the inventor is the first one to conceive of the invention and reduce it to practice. We need a system that is just and practical. A practical system that is not just will lead to unintended consequences. For instance, the publication requirement has led to our patent system giving away our technology to the rest of the world. The practical answer was to publish our patent application and conform with the rest of the world. The just and practical answer was to fund the PTO fully, eliminate needless formalities to patents and have patents issue in under one year. The just and practical answer would have ensured that the US stayed the technological leader of the world and therefore economically vibrant. Our present economy is the result of the sin of being practical but not just.
24 Month Provisional
While I am not inherently against this proposal, I can just hear the critics screaming “submarine patents.” Extending the time to 24 months from 12 months that a provisional patent application allows the applicant to file a regular patent application sounds like a practical solution, however the better answer would be to streamline the process of applying for a patent. We should work to reduce the time it takes to obtain a patent, reduce the cost it takes to obtain a patent, and reduce arbitrary rules required to obtain a patent that add no real value to the patent system.
Real Patent Reform
Nothing in the present patent reform proposal does anything to solve the real problems faced by inventors. Instead of agreeing to a less bad patent reform bill, which should trash this bill and start over. The number one issue that has to be in any patent reform bill is to stop fee diversion. Fee diversion is fraud pure and simple. If Congress had to live up to Sarbanes Oxley, they would all be in jail. We need to repeal KSR. Any objective system of patentability is better than a subjective standard for entrepreneurs and businesses. (Only a judge or a trial lawyer thinks a subjective test is just). For more on real patent reform see Real Patent Reform.
The importance and influence of unions has declined dramatically over the last thirty years. While more than one-third of employed people belonged to unions in 1945, union membership fell to 24.1 percent of the U.S. work force in 1979 and to 13.9 percent in 1998. Is there a way that unions, especially blue collar traditional unions, can increase their membership, align themselves with the knowledge economy, and help the U.S. become more competitive?
Unions are often perceived as lining their own pockets at the expense of non-union workers, the companies they work for, and the country’s interests. Perhaps the greatest accomplishment of American unions was the AFL-CIO support for Poland’s Solidarity Union in the 1980s. This support was a significant reason why the Iron Curtain fell. This support for Solidarity shows that American unions are not Marxist. I believe that it is possible for Unions to reorient their focus while still protecting their traditional role of protecting worker’s rights. America’s shift to a corporatist society since 2000 is providing unions with a historic chance to revive their importance and help their country.
How can unions seize this opportunity? They need to focus their efforts on the most important asset in a knowledge economy, intellectual property. Unions have generally opposed the patent reform bills being proposed by Congress because they believe the bills will hurt America’s competitiveness and therefore the availability and quality of work for their members. Now they need to become agents for inventors and refocus their lobbying efforts on strengthening our patent laws and demanding the other countries provide strong intellectual property laws. Forcing other countries to respect our patent laws and strengthen their patent laws will keep quality jobs in the US and also help these countries to develop a culture of innovation rather than a culture of imitation and theft and long term poverty.
How can unions become agents for inventors and serve their traditional members? Unions have the advantage of a large number of members with strong mechanical skills that have numerous potential inventions. Unions should nurture the inventive interests of their members by providing education about patents and the invention process. They should also provide funding for their member’s inventions and act as agents for these inventions. In return, the unions would receive a portion of any royalties. Unions have an inherent advantage over their members taking these projects on themselves. One advantage they have is a large installed base for the inventions of their members. They already have a mechanism for communicating with their members including training classes. This significantly reduces the risk of bringing an invention to market that would be used by their members. In addition, unions have a ready source of funds for development. The retirement funds of unions need to be invested. A very small slice of these retirement funds could be used to fund the invention program. From start-up funding experiences we know that most of these inventions will fail or only be moderately profitable, however a few will be spectacularly successful. By spreading the risk over numerous inventions, the union can obtain above average returns with less risk than their members attempting to commercialize their inventions directly.
Besides the direct financial return from any inventions the union decides to pursue, an invention development program would increase their membership. If just one union member becomes moderately wealthy because of an invention their union decided to represent, the news would spread like wild fire and result in flood of new union members. In addition, the union can use their member’s inventions as a bargaining chip in contract negotiations. For instance, an invention on a better, cheaper, or faster way of installing electrical wiring could be used as a bargaining chip with the automakers or building contractors. The union could provide a bid using or not using the invention. If the company chose not to select the union’s bid with the invention, then the union could deny the company from using the invention. If the union won the contract a portion of the payment would be for royalties for using the invention.
I would suggest that unions focus their initial inventing efforts on tools that their members are likely to use. These tools could be branded and sold to the general public as well as to union members or the companies that they work for. This would be the least risky inventions to pursue. I would not suggest that union’s make the tools themselves as this would result in a conflict between representing their members and being a manufacturer. However, they could use these invention to negotiate employment contracts in the companies that they select to make the licensed product.
If the unions adopt an invention agent model as part of their portfolio of services they provide for members it would:
* Increase their membership; provide a return on the knowledge of their members
* Increase the productivity and quality of the products made by the companies that work with the unions
* Improve the image of unions in the mind of the public
* Provide a counterbalance to the corporatism that is infecting the US
* Keep quality jobs in the US.
For more information on creating an invention company see The Next Big Thing http://hallingblog.com/2010/02/19/the-next-big-thing/ and Jump Starting a Secondary Market for Patents http://hallingblog.com/2009/11/16/jump-starting-a-secondary-market-for-patents/
Dale Halling will be speaking at the Night with a Futurist event at the Da Vinci institute on April 5, 2010 at the Madcap theater. As a patent attorney, Dale Halling deals with start-up entrepreneurs on a daily basis. He began noticing a significant difference between the types of projects his clients were involved with in the 1990s and 2000s. Clients, in the 90s, would come into his office with plans to build businesses that were disruptive or revolutionary. The technologies underlying these companies held the potential to completely redefine a market. Some of the ideas would increase the available bandwidth by 10x for minimal costs or allow data searches that were 10-100x faster than existing technologies. It was very exciting talking with these entrepreneurs. Their energy was infectious and the potential implications of their work was mesmerizing. However, the tech downturn of 2000-2001 changed all that.
After 2002, the start-up companies he came into contact with were all looking for narrow niche markets. Instead of trying to make dramatic changes to technology and go public, these companies were looking to develop incremental changes and be bought out by an existing company.
He started wondering if other people in the tech world were seeing similar trends.
Recent innovations like the iPod, the tremendous amount of money Intel was spending to build their next microprocessor plant, and the social media industry are certainly innovative, but they are not capable of altering the entire economy like the Internet of the 90s. The Internet in the 90s affected almost every business in the U.S. It drove PC sales, retail, electronics, telecommunications, professional businesses, marketing, newspapers, and much more. It also redefined whole areas of life, with email, online shopping, and online advertising. It was impossible to escape the effects of the Internet unless you crawled under a rock.
The personal computer revolution of the 80s had a similar effect. The iPod has been cool, but hasn’t affected the whole economy.
So what’s behind all this? The changes have seemed subtle from the outside, but the ripple effects have been huge.
Join us as we take a hard look at how the face of innovation has changed, and what we can do to turn it around.
EVENT: Night with a Futurist
DATE: April 5, 2010 – Monday
LOCATION: MADCAP Theater, 10679 Westminster Blvd, Westminster, CO 80020
DIRECTIONS: Driving Directions
COST: $25, Members: Free, SuperMembers: Free
REGISTER: Register here
TOPIC: “The Decline and Fall of the American Entrepreneur: How Little Known Laws and Regulations are Killing Innovation”
SPEAKERS: Dale Halling, Allison Taylor, Catharine Merigold, Gene Branch, Mike Schmidt, Thomas Frey
Accounting rules for R&D result in companies and nations under investing in research and development. Since increases in real per capita income are the result of increases in our level of technology, this accounting error actually results in all of us being poorer. The point of R&D is to create inventions, whether products or processes, that are useful. R&D that does not result in inventions may be interesting intellectually, but does not increase our wealth- so the rest of the post will discuss investments in inventions as opposed to the more nebulous concept of R&D.
Creating an invention without obtaining legal title to the invention is like building an office building without obtaining title to the land and building. Without legal title to the office building, you cannot finance the building, sell the building, or lease the building. In other words, without legal title to the office building its economic value is significantly reduced. The same is true of inventions. Inventing something without obtaining legal title to the invention means that you cannot license (lease) the invention, cannot sell the invention, and cannot finance the invention.
There are couple of ways to obtain title to an invention. You can either obtain a patent on the invention or you can keep the invention a trade secret. Many inventions are not amenable to trade secret protection. As a society, it is better if people obtain patents instead of keeping their inventions a trade secret, since a patent allows other people access to the knowledge associated with the patent, allowing them to use this knowledge to build other inventions.
The present accounting rules for the costs in creating an invention and obtaining title to the invention result in an immediate expensing of these costs. While this may be helpful from a tax point of view, it causes these costs to appear superfluous. Note that the rest of this post is concerned with accounting as an accurate measurement tool for the operations of a business and is not concerned with tax law, which has caused so many perversions to accounting and business generally. Our present accounting systems never show internally funded inventions produce any value.
March 7 is the anniversary of Alexander Graham Bell’s patent on the telephone. There is a common misconception that Bell received the patent over Elisha Gray because he was first to the patent office by several hours. This is incorrect. The United States has always had a first-to-invent patent system not a first-to-file system. Let’s hope it stays that way. (Congress is considering changing our patent laws to a first-to-file system, which would be disastrous for independent inventors and small companies.) As a result, it was irrelevant who filed their patent application first.
Eventually a number of patents related to the telephone were all involved in an interference, which is a proceeding to determine who was the first true inventor. According to an article in the New York Times dated October 24, 1884, there were originally fourteen parties involved in the interference but only six remained: William L. Voelker (two patent applications), Thomas A. Edison (five applications), Elisha Gray (four applications), John H. Irwin & James W. McDonough (one application), and Alexander Graham Bell (two applications). These patents appear to have covered eleven patentably distinct aspects (counts) of the telephone. One count was directed to the speaker diaphragm, another count was directed to transmitting reproducing sound by increasing and decreasing the strength of an electric current. Bell did not win on all counts.
There are number of things that are interesting about this article in the New York Times. For instance, the writer did not feel compelled to explain to his audience what an interference was or what a count in an interference was. I cannot image this being the case in any general interest publication today. Only in a publication specifically directed to patent attorneys would this be true today. It is unlikely that any generally interest publication or even industry specific publication would carry an article on a patent interference. Clearly, inventors and patents were held in higher regard in the late 1800s than today.
Another interesting point: there were many patents involved in the invention of the telephone. These overlapping rights had to be resolved to create a functioning telephone system. Any number of patent critics today seem believe we are unique in having multiple patents that apply to a product or system; but at least since the invention of the steam engine it was common to have these overlapping rights. Despite today’s critics , our ancestors were able to deal with these issues and move technology forward. Why is this such a hard concept to reconcile?
The Obama administration is proposing a jobs bill or stimulus II bill. The fundamental question is whether the government should create jobs directly or pursue policies that allow private companies to increase employment. If the government were to spend its entire budget on jobs, it could only spend $3.5 trillion. If you eliminate “mandatory spending” which includes Social Security, Medicare, Medicaid, and interest expenses then you are left with only $1.3 trillion. This is essentially the amount of the projected deficit for 2010. Public action could result in $1.3 trillion spending on jobs at best. This spending is unsustainable since it is based exclusively on borrowed money.
How much money could be invested in jobs if the U.S. were to pursue policies that encourage investment in job producing enterprises? The U.S. has a $14.0 trillion economy. If you assume that the U.S. earns 10% on capital, then there is $140 trillion in capital in the U.S. The U.S. represents 20% of the world economy, so there is at least $700 trillion in capital in the world. If the U.S. were to pursue policies that encouraged private investment in the economy, then it would not be surprising if it attracted 1% of the worldwide capital or $7.0 trillion. This would dwarf the $1.3 trillion that the government could spend on jobs. Private investment would create self sustaining jobs unlike government spending. In addition, the government would save the $1.3 trillion it would have otherwise spent so the country would be $8.3 trillion better off. These numbers are not exact but it clearly illustrates the point that private action is much more powerful than public action.
What policies would encourage this avalanche of private investment? The right policies would encourage investment in technology, since the only reason we are wealthier now than in the past is because of our level of technology. New technologies are capable of exponentially increasing our standard of living and create high quality, high pay jobs. The top three policies that would encourage private investment in new technologies are: 1) strengthening our patent laws (intellectual property), 2) repealing Sarbanes Oxley, and 3) repealing the capital gains tax. Patent laws are the method of obtaining title to technology. If a company cannot own its technology, then investors and inventors are unlike to invest in developing new technologies. Property rights (patents) are critical to attracting investment. Sarbanes Oxley makes it almost impossible for companies to go public. Access to public markets is critical for investors to monetize their returns. Capital gains reduce the return to investors and are a form of double taxation. The higher the capital gains the lower the level of investment.
Private action is significantly more effective at creating jobs and stimulating the economy. We need policies that encourage investment in technology, because advances in technology are the only way we increase real per capita income. These policies include strengthening our patent laws and repealing Sarbanes Oxley and capital gains taxes.
I (Dale B. Halling) will be appearing on the Mancow Radio Show Monday, February 8th, between 6-6:30AM, MST. Mancow and Cassidy can be heard around the country including on AM 890 WLS. I will be discussing how to create high quality jobs.
- Natural Rights: Objective, Subjective and Volition
- CLS v. Alice Oral Argument
- Adam Carolla and the Podcast Patents: The Real Story
- Interesting Academic Study on Value of Patents to Startups
- CLS Reply Brief: Alice v. CLS Bank Supreme Court
- Win a FREE Copy of Pendulum of Justice
- Are Patents too Vague?
- Halling asked to Speak at Atlas Summit 2014
- Book Review: The Nature of Technology
- Business Method Patents: A Solution?