Posts Tagged ‘patent policy’
President Obama’s latest proposal to stimulate the economy is to subsidize community banks so that they lend to small businesses. Gary Townsend has a great article on this at Seeking Alpha. He suggests the program is flawed because of poor execution issues. In his more cynical mood (honest mood), he suggests that it is payback to the banks for supporting financial reform.
More important than poor execution is that Obama’s proposal is fundamentally flawed. It is another case of the government stealing money from one group to give it to another group. It will not create jobs. Banks lead to established businesses that have assets and cash flow. The Kauffman Foundation has shown that all net new jobs over any decade are created by new businesses not small businesses. High quality jobs are created by new business that are creating new technologies. President Obama could get 300 times the impact with 1/30th the spending by fully funding the Patent Office and repealing Sarbanes Oxley and the new financial reform bill. New companies (start-ups) that create high quality jobs are funded by equity investments. These equity investments are backed by intellectual capital – patents. The best return on these equity investments occurs when these companies go public. Sarbanes Oxley has made this almost impossible.
This proposal by President Obama is not about creating jobs, but about political payback.
Inventors and critics of the patent system often ignore or are ignorant of the high cost of marketing and selling a new product embodying an invention. I discussed this cost in Invention- A Financial Analysis http://hallingblog.com/2010/08/13/invention-–-a-financial-analysis/. This cost is the variable Mi in the equation I developed as part of the financial analysis. Another paper that discusses this additional cost that inventor’s incur in marketing and selling their invention compared to a me-too produces, is The Nature and Function of the Patent System. Kitch, the author, explains:
Even in the case of an innovation patented in fully commercial form – as is the case with many relatively trivial patents – the firm must make significant investments to simply distribute and market the invention. But expenditures necessary to identify the market for the product and to persuade potential customers of its utility can easily be captured by competitive imitations. Absent a patent on the product, the incentives to provide information to purchasers about their need for a product as opposed to information about the particular characteristics of the seller’s product are limited. The trademark law protects only the names and symbols identifying the seller’s product; it confers no protection against imitators of the product itself. Thus competitors can ride on the demand for the product created by the first seller without incurring the expenses necessary to inform buyers of the advantages of the product. Only in the case of a patented product in a firm able to make the expenditures necessary to bring the advantages of the product to the attention of the customer without fear of competitive appropriation if the product proves successful. This aspect of the cost of introducing innovations is stressed here both because managements find that marketing is a major cost in innovation and to illustrate that even in the case where nothing remains but to make and sell the patented invention, there are significant costs whose return could be appropriated by competitors. Absent a patent, firms have less than the optimal incentive to invest in providing information about and techniques for using the new technology.
Inventors need to take these additional costs into account when undertaking a new venture. There are several strategies that can be used to reduce these costs. For instance, teaming with an existing company that has a strong market presence (marketing channel partner) in your marketplace. Another solution is to invent only line extensions to a company’s existing products. This second solution is common for large companies and is why large companies are not known for inventing revolutionary or disruptive technologies.
Critics of the patent system have to answer why they believe inventors will develop new technologies when it puts them at a cost disadvantage compared to copiers.
 Kitch, Edmund W., The Nature and Function of the Patent System, Journal of Law and Economics, Vo. 20, No. 2 (Oct., 1977) pp. 265-290.
 Ibid. p. 277
About a year ago I finished my book The Decline and Fall of the American Entrepreneur: How Little Known Laws and Regulations are Killing Innovation. The book argues that the US economy was faltering long before the financial crises because changes to our laws were inhibiting investment in technological advances. Intellectual, financial, and human capital are the three foundations necessary to develop new inventions and all three have been undermined since 2000. In this post I will review how the policies affecting these foundations have changed in the last year.
Intellectual Capital: patents mainly represent this prong. The good news is that David Kappos replaced the incompetent and traitorous Jon Dudas. Kappos is a patent attorney and therefore also has a technical background. Unfortunately, he spent his whole career working for large companies and does not understand the challenges of individual inventors and technology start-up companies. The bad news is that Supreme Court again illustrated their utter incompetence in the Bilski decision. None of the Justices understand the difference between the utility requirement under 35 USC 101, the novelty requirement 35 USC 102 and the obviousness requirement 35 USC 103. The justices demonstrated that they do not understand the need for a working embodiment (35 USC 112) in order to even evaluate 101 and 102 issues. They presented nonsense hypothetical’s in oral argument that were not enabled and then demanded to know whether these hypothetical’s meet the utility requirement. They also made absurd statements that patents limit the flow of information. Another low point in the year was the farcical ruling in the ACLU v. Myriad case. The judge ignored the law and wrote 100 pages of nonsense to his cover up his crime.
Despite some progress in this area, overall the US continued to weaken the Intellectual Capital foundation necessary for economic growth, job creation, and investment in inventions.
Financial Capital: Sarbanes Oxley significantly undermined this foundation. The only good news is that the financial reform bill raised the threshold for the application of SOX to $60 million in market capitalization. However, SOX did incredible damage to our economy in only 60 pages. The financial reform bill is 2700 pages and no one knows all the damage it will cause, but it certainly was not a step in the right direction. The major issue financial reform should have addressed was Fannie and Freddie and it did not even address this issue.
There was no progress at all in this area.
Human Capital: this was undermined by the FASB rules requiring the expensing of stock options. Despite the fact that accountants are unable to understand the simple fact that dividing a pie does not reduce the size of the pie, this idiotic policy continues unchallenged.
The US has made no progress in the last year in implementing policies that would encourage technological entrepreneurship. The US is continuing its corny capitalism policies that reward political connections over true economic progress.
The US is also likely to increase the capital gains tax rate from 15% to 20% in 2011. This will further damage the incentive to invest in new technologies. The Obama administration is proving that it is even more incompetent than the Bush administration.
Patents are often analyzed as monopolies or rent seeking. Patents are clearly not a monopoly. A monopoly give the exclusive right to sell a product or service. A patent does not give the holder this right. For more information see The Myth that Patents are Monopoly.
The concept of economic rent is a more useful concept than monopoly for analyzing patent law. In the typical patent case production will either remain the same or increase compared to the pre-patent situation. As a result of the invention, protected by the patent, the inventor has a cost advantage that allows him to make more money–economic rent–than his competitors. In that sense there is no restriction of production and hence no monopoly.
Economic rent is defined in Wikipedia as “excess returns” above “normal levels” and they are associated with a lack of competition in markets. What is meant by “normal levels” of return? Is it the same return that a person could make by putting their money in the bank? Or is the same return a person could make by investing in the stock market? Or is the same return that a person could make by investing in non-inventive manufacturing or service business? The concept of “excess returns” suffers from the same flaws as all socialist concepts of fairness – who decides? The concept of “excess returns” only makes any sense statistically. We are not talking about the returns from a specific patented invention, but the average return from inventing versus other economic investments. In addition, it only makes sense to compare the return on patented inventions to investments in private manufacturing or private service businesses. Let’s assume that the people who suggest that patents are rent seeking mean, patent holders are on average (statistically) receiving a higher return (excess return) compared to other similar private investments. For simplicity I will assume a private manufacturing business. Based on these assumptions, would the fact that investors in patent inventions (hereinafter inventors) receive a higher return than other manufacturing business be bad for the economy or bad for consumers? Let’s be clear that most commentators who state that patent holders are rent seekers, believe this would be damning evidence against patents.
There are several possible scenarios that meet the assumptions above: 1) inventors receive normal returns on manufacturing their invention, 2) inventors receive normal returns both on their manufacturing costs and their cost of inventing, 3) inventors receive normal returns both on their manufacturing costs and the risk adjusted costs of inventing and marketing a new invention, and 4) inventors receive excess returns both on their manufacturing costs and the risk adjusted costs of inventing and marketing a new invention.
My post Invention – A Financial Analysis , created the following mathematical model for the cost of inventing.
Ci(n) = (Inv + Mi)/P + NRE + PC*n + OH*n (New Product based on invention)
Cmt(n) = NRE + PC*n + OH*n (Me-too product)
Where Ci is the cost of creating a product for the owner of the invention, Inv is the cost of creating the invention, P is probability of that the invention will succeed in the market, Mi is the incremental marketing and sales cost of introducing a new invention, n is the number of products that have been produced, NRE is the nonrecurring engineering cost of setting up production, PC is the production cost of the making n products and OH is the cost of overhead for producing n products, Cmt is the cost of creating a me-too product. I will use this mathematical model to analyze the four scenarios discussed above.
Scenario 1 – Inventors Receive Normal Returns On Manufacturing Their Invention
In the above equation this means that the inventor can receive no compensation for cost of invention (Inv), the cost of marketing a new invention (Mi), or for the probability of success (P). This means that the inventor will never be able to justify the cost of inventing (Inv, Mi, p), since it is a sunk cost that will always cause the inventor’s return to be less than they would receive by investing in other manufacturing businesses. Why undertake the cost, risk, and hassle of inventing when you can obtain better returns by investing in any random manufacturing industry. If this is patent critics’ idea of rent seeking, then they will essentially kill off all but accidental inventing and inventions that can be kept a trade secret. It will also kill off all venture capital.
Scenario 2 – Inventors Receive Normal Returns on Both Their Manufacturing Costs And Their Cost Of Inventing
In this scenario inventors are allowed to receive normal returns on their inventing costs (Inv) and their manufacturing costs (NRE, PC, OH). However, this does not compensate them for costs of marketing the invention (Mi) or their probability of success (P). While this makes inventing slightly more favorable, it still does not justify investing in inventing instead of any random manufacturing industry. If this is patent critics’ idea of rent seeking, then they will essentially kill off all but accidental inventing and inventions that can be kept a trade secret. It will also kill off all venture capital.
Scenario 3 – Inventors Receive Normal Returns Both On Their Manufacturing Costs And The Risk Adjusted Costs Of Inventing And Marketing A New Invention
Now this scenario sounds fair. Inventors (statistically) are compensated for all their true costs and risks. Inventors are in exactly the same position as investors in any other (manufacturing) business. In addition, inventors have the random chance of hitting the jackpot. This supposedly fair mined solution to the problem of rent seeking by patent holders ignores the return received by the beneficiaries of the invention (hereinafter society). Is this a fair solution if society receives an “excess return” when they buy (use) the invention? Let’s look at a real world example to illustrate this point. Because of the cotton gin, US cotton exports change from less than 500,000 pounds in 1793 to 93 million pounds by 1810. A single cotton gin could generate up to 55 pounds of cleaned cotton daily a 25 fold improvement over previous methods. So Eli Whitney would receive a 10% or so return on his invention, while society (cotton farmers – owners of the cotton gin) would receive a 2500% return. Why is it fair for Eli Whitney to receive a “normal return” of say 10% on his efforts while the purchasers of his cotton gin receive a 2500% return on their investment? Who is the real rent seeker in this situation?
Is the Eli Whitney case an outlier case? Real world purchasers in a B to B situation will only purchase an inventive product if they will receive more than an “normal return.” If an invention only provides a “normal return” to the purchaser, then they will have a wide variety of known devices that will provide them average return. There is no reason to select an inventive product that is going to require the purchaser to learn a new product and possibly alter their existing processes when they can get the same return from existing choices. Similarly, no rational investor is going to invest in an invention if they can obtain the same return by investing in a number of other known projects. This shows that in the real world both the inventor and the purchaser have to receive excess returns for an invention to be successful.
We know that neither the inventor nor the purchaser of the invention is expecting a normal return. An invention will only be successful if both the buyers and the inventor receive an above normal return on their investment. The inventor and the buyer are both rent seeking according to standard economic theory, which shows that the concept of “rent seeking” is seriously flawed. I propose that real rent seeking is when one party to a transaction obtains above normal returns and while the other party obtains below normal returns.
It is clear that the real rent seekers are not patent holders but a society that wants to obtain the benefits of new technologies without paying the creators of these new technologies.
Scenario 4 – Inventors Receive Excess Returns Both on Their Manufacturing Costs and the Risk Adjusted Costs of Inventing and Marketing a New Invention
This is the only scenario under which inventing can be encouraged. As explained above, both the inventor and the purchasers must receive above normal returns in order for the invention to successful in a free market economy. This is the very definition of how economic progress occurs. Economic progress (real increases in per capita GDP or per capita income) only occur because of increases in our level of technology. Our patent system has to provide excess returns above normal levels for inventors if we want our economy and standard of living to increase.
 35 USC 154  Dam, Kenneth W., THE ECONOMIC UNDERPINNINGS OF PATENT LAW, JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 19 (2D SERIES), http://www.law.uchicago.edu/files/files/19.Dam_.Patent.pdf, p.4.  Wikipedia, Opportunity Costs, http://en.wikipedia.org/wiki/Opportunity_cost, 8/24/10.  Wikipedia, Eli Whitney, Jr., http://en.wikipedia.org/wiki/Eli_Whitney,_Jr., 8/24/10.  Wikipedia, Eli Whitney, Jr., http://en.wikipedia.org/wiki/Eli_Whitney,_Jr., 8/24/10.  Gordon, John Steele, An Empire of Wealth: The Epic History of American Economic Power, Harper Perennial, New York, 2004, p. 84.
Jacob Schmookler, an economist and author of Invention and Economic Growth, developed a financial analysis of the invention process. The main point of this mathematical modeling of the invention process was to show that the probability of any invention being created is related to the size of the market for the invention. I intend to present a model of the cost of inventing compared to creating me-too products. I am not a fan of mathematical models for explaining most economic effects, because the terms in the equation are either unmeasurable or vary in an unpredictable manner. As a result, I think these mathematical models give the impression of the accuracy of a physical science, which they clearly do not provide. This can lead to logical errors.
Despite this, I believe a simple mathematical model of the invention process will illustrate some important points. In addition, some people understand concepts better when presented in a mathematical model. Here is my model for the costs associated with introducing a new product based on an invention and me-too product:
Ci(n) = (Inv + Mi)/P + NRE + PC*n + OH*n (New Product based on invention)
Cmt(n) = NRE + PC*n + OH*n (Me-too product)
Where Ci is the cost of creating a product for the owner of the invention, Inv is the cost of creating the invention, P is probability of that the invention will succeed in the market, Mi is the incremental marketing and sales cost of introducing a new invention, n is the number of products that have been produced, NRE is the nonrecurring engineering cost of setting up production, PC is the production cost of the making n products and OH is the cost of overhead for producing n products, Cmt is the cost of creating a me-too product.
The reason I add the probability that the invention (P) will succeed is that not all inventions are successful. An economist who wants to capture all the costs associated with introducing a product based on a new invention has to include this probability to determine the true cost of inventing. This probability will vary based on the type of invention. For instance, line extension inventions are much more likely to succeed than inventions that create whole new markets. An example of an invention that created a new market was Webcrawler, which was the first full text web indexing search engine introduced in 1994. On the other hand adding image or video searching to Google is a line extension.
The cost for marketing and selling a product based on an invention (Mi) is separate from the cost of marketing and selling a me-too product. It takes significantly more money, time, and effort to sell a product based on an invention that is creating a whole new market than a me-too product. Any sales person who has tried to sell a truly unique product knows that it is much easier to sell an existing product or a me-too product because you do not have to explain the value of the product, how the product works, and why the customer would want the product. A true me-too product can be sold mainly on price. A line extension product takes less marketing and sales effort than a revolution product. Large companies tend to focus on line extension inventions because it reduces the risk that the product will not succeed and reduces the cost of marketing and selling. Many start-ups sell through marketing channels in order to reduce this cost.
I include the cost of selling, advertising, and marketing of me-too product in overhead. Once a product based on an invention is well known, then it will incur the same cost as a me-too product of selling, advertising, and marketing. I believe this is an accurate characterization. Non-recurring engineering (NRE) is the same for both the me-too product company and the inventor company. The reason for this is that me-too products will incur approximately the same cost of setting up production as the owner of the invention.
The values of these variables will vary based on the type of invention involved, the type of market in which the invention is sold, and the point in time the product is introduced. This model is not exact. For instance, overhead (OH), production costs (PC), and marketing cost of the invention (Mi) should all be functions of the number of products sold (n). Production costs usually decrease with the number of products sold. Marketing costs of the invention (Mi) should be spread out of the first X number of products sold. In addition, the total marketing cost of the invention (Mi) should not be included for failed products based on an invention, since the owner is likely to kill the project earlier and not spend as much as on a successful product launch. There are probably other shortcomings of these equations. However, certain facts are clear even with any flaws in these equations. The cost of inventing increases the cost to the inventing firm over the me-too firm. As a result, inventing is a market disadvantage without intellectual property.
Invention Law: The cost of inventing increasing the expenses of the inventing firm compared to the expenses of the me-too firm.
There are only two common ways to compensate or incentivize inventors. One is to provide the inventor with a property right (patent) in their invention. The other is to have the government pay for the cost of inventing. The first is consistent with a free market economy and has proven to be extremely successful. The second is consistent with a command and control economy (statism) and has proven to be inefficient and political.
Intellectual Property Law: Inventing is a market disadvantage without intellectual property.
Now I will look at some specific scenarios to provide some insight to these laws.
Consumer good sold through retail outlet
Inventing = New Market
Target Retail Price $10.00
Cost of inventing (Inv) = $100,000.00
Cost of Marketing Invention (Mi) = $900,000.00
Probability of Success (Pi) = 0.1
Nonrecurring Engineering (NRE) = $30,000.00
Production Costs per Unit (PC) = $2.00
Overhead Costs per Unit (OH) = $1.20
|Unit||Inventor’s cost per unit||Copier’s cost per unit|
It is assumed the manufacturers are selling their products $4.00, which is a standard double over manufacturing costs. The 1/5th of retail price is a minimum necessary for the manufacturer to obtain a return that justifies manufacturing the product and selling it through a standard retail channel. As you can see the inventor has to sell 100 million units ($1B in revenue) in order to get within 10 cents of the same manufacturing cost as the me-too manufacturer. The copier’s break even point is somewhere between 10 thousand units and 100 thousand units while the inventor’s break even is point is over 100 times as many units.
It is likely that this scenario overstates the difference between the costs of the inventor and the copier. For instance, the inventor is unlikely to spend the full cost of marketing the invention (Mi) for the other nine failed product. In addition, the percentage of successfully launched products is based on the stated success rate of venture capitalists. Most VCs state that they have one highly successful company for every ten investments. They also usually have 2-3 other companies in the portfolio that produce moderate returns or losses. Not all of the other companies are in their portfolio are a complete loss.
Let’s look at a much more optimistic scenario. Let assume the probability of success (P) includes these moderately successful investments and lets also include the idea that the probability includes some line extensions which have a 70% probability of success or higher. We will also move up the probability of success to compensate for the fact that the inventor is unlikely to spend the full cost of marketing the invention (Mi) on failed inventions. I will make the wild guess that setting the probability to 45% will compensate these differences. I will also assume that instead of taking $1M to launch a new invention that it takes only $100 thousand. Part of the justification for this difference is that the inventor and other founders are likely to not take a salary until the company has significant revenues. I will also lower the overhead significantly, because this is one of the big advantages of a start-up. My optimist scenario is:
Consumer good sold through retail outlet
Inventing = New Market
Target Retail Price $10.00
Cost of inventing (Inv) = $10,000.00
Cost of Marketing Invention (Mi) = $90,000.00
Probability of Success (Pi) = 0.45
Nonrecurring Engineering (NRE) = $30,000.00
Production Costs per Unit (PC) = $2.00
Overhead Costs per Unit (OH) = $0.50
|Unit||Inventor’s cost per unit||Copier’s cost per unit|
In this scenario, the break even point for the copier is between 1000 and 10,000 units, while the break even point for the inventor just over 100,000 units. The inventor is still at a significant disadvantage to the copier. Some of this disadvantage may be offset by the first mover advantage. However, if the inventor company is a start-up its first mover advantage is likely to be significantly offset by the established relationships of an established copier company. In addition, the inventing company may sell more of their initial units directly (not through a retail channel) and their margins will be significantly higher for these units.
It is clear that inventing without intellectual property is a competitive disadvantage. Large companies that invent can offset some of this disadvantage by using other competitive barriers to entry. For instance, an established company can use its network of relationships to create a barrier to entry from start-up copier companies and may be able to use its relationships to provide some barrier to entry from other large established companies. The empirical evidence is that established companies mainly produce incremental inventions. This is because the invention process is risky and as an established company they often have less risky methods of providing incremental revenue or profit gains.
Start-up companies produce all the net jobs in America according to the Kauffman Foundation. They are also the biggest producer of emerging technologies – see Do Individual Inventors and Start-ups Invent Anything Important?. Advances in technology are the only way to increase our real per capita income. We need to encourage investments in inventions, if we want to leave our children a better world than the one we live in. Technology start-ups need the incentive of property rights in their inventions (patents) in order to justify the investment in these companies.
 Schmookler, Jacob, Invention and Economic Growth, Harvard University Press, Cambridge Massachusetts, 1966, pp 113-115.
 For instance, the measurement of GDP is said to be consumer spending plus investment plus government spending plus exports minus imports. This equation leads to the logical error of assuming that consumer spending and government spending results in an increase in the output of a nation. The reason this is a logical error is that people confuse the cause with the effect. Consumption does not create goods and services. Production creates goods and services, which is related to the consumption of good and services. An engineering analogy is that temperature is often measured by determining a change in the resistance of a resistor. If I change the resistance being measured by adding resistor in series with the thermistor this does not change the temperature of the environment being measured. This is what economists are arguing when they suggest that increased government spending will cause the economy to grow. Government spending does not create any new goods and services; it just either consumes production or transfers the return for production from one person to another. Similarly, consumer spending is a way of measuring production. Artificially increasing consumer spending does not increase production. For instance, giving people income tax rebates when they never paid any income tax does not increase production, it just steals the productive effort of those who do pay taxes.
 The break even point is when the cost per unit is equal to the sales price per unit.
A NY times op-ed piece suggests that a relatively minor investment of $1 billion in the US Patent Office would create 1.5 million jobs for a cost of $660 per job. Note that the $1 billion in funding would actual be repayment of user fees that Congress has stolen from the Patent Office over the last two decades. The conclusion of the authors is:
So our guess is that restoring the patent office to full functionality would create, over the next three years, at least 675,000 and as many as 2.25 million jobs. Assuming a mid-range figure of 1.5 million, the price would be roughly $660 per job — and that would be 525 times more cost effective than the 2.5 million jobs created by the government’s $787 billion stimulus plan.
To encourage still more entrepreneurship, Congress should also offer small businesses a tax credit of up to $19,000 for every patent they receive, enabling them to recoup half of the average $38,000 in patent office and lawyers’ fees spent to obtain a patent. Cost, after all, is the No. 1 deterrent to patent-seeking, the patent survey found.
For the average 30,000 patents issued to small businesses each year, a $19,000 innovation tax credit would mean a loss of about $570 million in tax revenue in a year. But if it led to the issuance of even one additional patent per small business, it would create 90,000 to 300,000 jobs.
Please read the full article.
The more fundamental question in economics is whether inventions have any economic impact. There is no role for inventions in classical economics, which focuses mainly on disruptions in supply and demand. Marxist believe that all economic value is a measure of physical labor, so there is no room in the Marxist tent for inventions either. Despite this modern economics has grudgingly admitted that inventions are key factor in economic growth. However, they are torn on whether inventions (advances in technology) are endogenous or exogenous. The exogenous camp believes that inventions occur separate from any incentives or spending on inventions. Economists that fall into the exogenous camp clearly do not see any reason for a patent system, since they believe that inventions occur separate from any market forces.
The first widely acknowledged chink in the Marxist and Classical economics armor against inventions was Joseph Schumpeter who argued that creative destruction, caused by innovation, is the key to economic growth. The hero in Schumpeter’s world was the entrepreneur not the inventor. Despite this Schumpeter also was a determinist who believed in “natural” cycles and believed in the exogenous theory of inventions.
The next step in the economic analysis of invention was by Robert Solow. Dr Solow published a paper in 1956 on economic growth that stated that four fifths of US worker output was due to technological progress (inventions). Robert Solow would go on to win the Nobel Prize in Economics for this point. However, Solow believed that technological progress was exogenous and therefore occurred separate from economic incentives to invent. As a result, he argued that all countries would converge in their economic growth rates and their level of technology. There has been no evidence for Solow exogenous theory of growth. The growth and level of technology, inventions, and economic growth of countries has not converged as Solow predicted. It is not surprising that Solow, in the exogenous camp, is a fan of the anti-patent book Against Intellectual Monopoly, by Michele Boldrin & David K. Levine.
The next big advance in the analysis of inventions and economic progress was the book Invention and Economic Growth by Jacob Schmookler in 1966. Schmookler undertook the most systematic analysis of invention of any economist. He analyzes the issue of whether invention is exogenous, as argued by Solow, or endogenous. He clearly shows that invention is mainly endogenous. Schmookler does not directly address the question of the utility of a patent system in encouraging inventions. However, he hints that attacks on the patent system in the 1930s and 40s was the cause for the decline in the number of patents issued to US inventors during this time.
In general, most economists in this area now acknowledge that invention is endogenous – subject to market forces. If you accept that the invention process is endogenous, then the next question is whether patents encourage invention – are patents relevant?
One of the leading economists in the area endogenous growth is Paul Romer. Romer thinks that the creation of inventions (he would call them recipes) are clearly subject to resource limitation. He points out that researchers and laboratory equipment are not free and therefore we need a system to encourage people to invest in new inventions. However, he believes that once an invention is created it cost virtually nothing to disseminate. The example he uses is oral rehydration therapy. While there are a small number of examples of inventions that are so simple and so easy to understand they can be disseminated at virtually no cost, most new inventions and technology do not fit into this category. For instance, calculus is a very useful branch of mathematics and it has been known for centuries and yet most of us who learned calculus paid someone to teach us. There were no intellectual property laws requiring us to pay a teacher to learn calculus, so if inventions (recipes) can be spread at no cost why did we undertake the irrational step of paying someone to learn calculus. If technological can be disseminated at no cost then there is no reason for professors, doctors, lawyers, engineers, and especially marketers and sale people. Romer is ambivalent about patents. However, his ambivalence is based on the false assumption that technology dissemination is free.
Gregory Clark, an economist at UC Davis, has written an interesting book in this area, entitled A Farewell to Alms. In this book he states that the most important question in economics is explaining why
after millennia of per capita income being stagnant it takes off around 1800 in the West. He provides an interesting answer. The first part of his answer is that rate of technological progress increased at the beginning of the industrial revolution. The second part of the answer is why the rate of technological progress suddenly increased. He suggests that the industrial revolution takes of in Britain because of environmentally induced evolution. Specifically, he suggests that the downwardly mobile society of Britain resulted in thrift and hard work being genetically selected in Britain. These traits resulted in the industrial revolution taking off in Britain. Clark appears to be part of the exogenous camp. As a result, he does not think that patents are important in encouraging advances in technology or economic progress.
B Zorina Khan is another economist who has studied this issue. She is author of the book, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920. She provides extensive evidence that the US patent system and economic forces affect both the level and direction of invention. She shows that the US created the first modern patent system and the patent system provides the major incentive that causes the US to grow from an agrarian economy to a world economic and technology power in 70 years.
The economic literature on patents is littered with misunderstandings of the basic rules of the US patent system. For instance, many economists do not understand that the patent system is designed to spread information. In the US we did this by setting up patent depository libraries, so that all people could take advantage of the knowledge associated with an invention. You will read many economists that believe patents inhibit the spread of information. This is clearly incorrect. They do inhibit practicing of the invention without the payment of a royalty, but the underlying information is free for all people to learn from.
Economists are also generally ignorant of the history of patents. They do not realize that patents are designed to encourage people to disclose the information associated with their invention. The alternative to patents is trade secrets and no government can force people to disclose their trade secrets. Before patents people protected their economically important inventions by keeping them a secret. This limits the area’s where people will invest in new technologies to those that can be kept a trade secret. It also means that the public does not benefit from the knowledge of the invention. Most economists do not understand the unintended consequences of their anti-patent position.
Economists generally want to model patents as a government granted monopoly instead of a property right. This is logically incorrect. In economics, a government-granted monopoly (also called a “de jure monopoly”) is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service. Since a patent does not even provide the holder the right to sell or practice their invention, it clearly does not grant an exclusive privilege to a firm to be the sole provider of a good or service. Most economists do not understand this basic principle of patent law – a patent does not give the holder the right to produce or sell their invention.
It is straightforward economic analysis that investing in new technologies is an economic disadvantage for a company if there is no intellectual property protection. The company’s research and marketing costs in creating a new product and new market clearly increase its cost of doing business over its competitors who do not spend money on new product development. Their competitors just copy the new product and sell it into the markets the inventor created. The inability of economists to grasp this simple point is mind boggling. The only explanation I can come up with is that most of the economists who write about patents have not worked in the technology start-up market. If they had, they would know that incredible additional expenses incurred not only in creating a new product, but in marketing and selling a new product. This is particularly true the more unique the product. It is always easier to sell a me-too product, since you do not have to explain how it works and why someone would want it. This is why invention in most large companies is limited to line extensions.
Economists cannot provide meaningful input or commentary on the patent system unless they actually understand the patent process, the rights obtained with a patent, and the basic history of patent systems. Ms. Khan and Pat Choate are some of the few economists who have a strong understanding of the patent system. Unfortunately, Khan does not differentiate that patents are property rights, not a monopoly.
 However Adam Smith did mention inventions as one of three ways to increase the wealth of a nation. “some addition and improvement to those machines and instruments which facilitate and abridge labor”, Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations, Edited by Edwin Cannan, New York, Modern Library, pp. 373-374.
The author, Matt Ridley, has written an excellent book that is epic in the scope of issues he tackles. The book covers why homo sapiens thrived while other members of the homo genus fail. He shows that on average the human condition has gotten consistently better and this increase in wealth has been especially true in the last 200 years. He destroys the noble savage myth. He shows the intellectual failings of Marxism, environmentalism, self sufficiency, and renewable energy. His two main themes underlying these vast topics are: 1) trade leads to division of labor, which leads to invention and 2) the inexorable march of human progress.
Despite Mr. Ridley’s incredible breadth of knowledge, there is a logical gap in his first thesis when he attempts to explain the industrial revolution and why it took off in England. This logical gap is the result of his misunderstanding of intellectual property.
This misunderstanding of intellectual property is most likely due to his open source utopianism. This utopianism leads the book to conclude “Thanks to the internet, each is giving according to his ability to each according to his needs, to a degree that never happen in Marxism.” P. 356. Even with this imperfection, this is an incredible book that I highly recommend to anyone.
Population Density – Good or Bad for Wealth Creation?
The book argues that population density is necessary for trade and division of labor, which is the route to economic prosperity. It also argues that the division of labor leads to inventions, which leads to further specialization. Specialization requires a large enough market to support it and as a result population density is the friend of economic progress. However, later in the book it argues that increasing population caused a decline in the living standards of Japan and Denmark. This decline supposedly occurred because the increasing population decreased the value of labor and therefore the market for specialization and inventions. England escapes this fate because of coal and phantom land in the colonies. This contradiction between the need for human density for specialization and economic progress and the idea that increased population density reduced the value of labor destroying the market for inventions is not adequately resolved.
The book argues, starting on page 52, that trade is what allowed homo sapiens to succeed where other apes failed and even other humans failed such as Neanderthals. It provides numerous examples of how various groups of humans regressed technologically because of inadequate population densities to support specialization, such as Tanzania. The book summarizes the lessons by quoting economist Julian Simon “population leading to diminishing returns is fiction: the induced increase in productivity is scientific fact.” P. 83.
In a chapter entitled “Escaping Malthus Trap,” Ridley discusses how Japan after a period of prosperity gives up its technology. He states “that sometime between 1700 and 1800, the Japanese collectively gave up the plough in favour of the hoe because people were cheaper to hire than draught animals.” P. 198. The reason for this according to Ridley was rapid population expansion due to paddy rice technology. This population boom made labor cheap and killed the market for technology. Denmark follows the same path as Japan and by the 1800s becomes “trapped by its own self sufficiency.” P. 200. Britain escapes the Malthusian trap that Japan, Denmark, and Ireland suffer, according to Ridely, because of selective breeding (maybe p. 200), ghost acres provided by the colonies (p. 202), release valve emigration to the colonies (p. 202), and coal (sustained industrial revolution p. 216.)
There is a logical inconsistency between the conclusion early in the book that population density is necessary for prosperity, but later in the book arguing that prosperity stalled after a burst in population in various countries. The explanation of selective breeding, does not explain why the US or Australia prospered. These countries were heavily populated by British rejects. Similarly, the ghost acres provided by the colonies were eventually used up. It might be argued that there was some tipping point that could only be achieved with ghost acres. I think this fails also, because it flies in the face of the book’s earlier argument that increased population densities allow more specialization and invention to increase everyone’s standard of living. The release valve emigration fails for the same reasons as the ghost acres. The emergence of coal is also unsatisfying. Coal mining was known before the birth of Christ and trade in coal occurred in England as far back as the 1300s, according to Wikipedia. The book also argues that many surges of economic growth were extinguished by parasitic political systems. However, it never states this is why Japan’s and Denmark’s prosperity was reversed.
What was new in the industrial revolution was not coal, but the machines to use coal and numerous other inventions. The book argues that these inventions were not in general due to new scientific discoveries, p. 255, and I agree. So why at this particular point in time did we have a sudden increase in rate of technological advance, including machines that used coal? The beginning of the industrial revolution coincides with the recognition of property right’s in inventions. The US constitution states (Article 1, section 1, clause that inventors have ‘RIGHTS” in their inventions. Patents, which are legal title to an invention, are the only free market system for encouraging people to invent. While Britain had a patent system at least back to the Statute of Monopolies, 1623, it did not recognize a right to property in one’s invention. It was a royal grant, subject to the whims of the ruling monarch. As a result, it was expensive and arbitrary. However, when the United States recognizes that inventors have a property right to their invention, this provides a whole new incentive to inventors and their financial backers. No doubt this attitude towards inventions also infected Britain. For more on the correlation between real per capita increases in income and patent systems see Source of Economic Growth.
Mr. Ridley argues that patents at best have marginal effect on the rate of invention. However, Mr. Ridley shows an appalling lack of knowledge about patents and intellectual property. He also has a number of inconsistent statements about intellectual property. For instance, on page 267, he states that copyrights have little effect on the creativity of musical composers. However, on page 326 he states that Nashville was saved by music entrepreneurs using good local copyrights in the 1930s. Not only are these two statements contradictory, there is no such thing as local copyrights in the United States.
The book has numerous other errors about intellectual property. For instance, it states that intellectual property is not like other property, because it is useless if you keep it to yourself, p. 262. This statement is nonsense. The Coca Cola formula is not shared and this is the only reason it has any value. A patent to an invention (legal title to an invention) only has value if there is some ability to exclude others from using it – as opposed to knowing about it. If everyone can make a laser without pay royalties, then it may have value to the world but it has no differential value to the inventor. Patents are derived from exactly the same philosophical basis as real property. Namely, Locke’s theory of Natural Rights. For more information see Scarcity – Does it Prove Intellectual Property is Unjustified? Below are a list of some, but not all, of the book’s errors related to patents:
1) The book then states that people get rich by selling each other things and services not ideas, p. 263. What are authors, professors, engineers, scientists, really selling? Authors are not selling books, they are selling ideas that just happen to be embodied in books. The Kindle proves this. The Kindle does not allow the user to buy a book, but to buy the ideas in a book. Professors are either selling the teaching of ideas or just an expensive way to bore students. Engineers are selling a service, which encompasses ideas not the paper (digital ones and zeros) on which it is written. Most companies do not make money manufacturing things, they make money with inventions (ideas) that are implemented in things. When a company only sells things with no (new) ideas in these things, then their profit margins are extremely narrow. One of the limitations on growth has been this Luddite refusal to allow inventors to specialize in inventing. This book’s premise is built on the division of labor, but the author rejects this idea when it comes to inventing.
2) Mr. Ridley also seems to be confused between the spread of information related to inventions and the legal right to use that information to build an invention. It is a major goal of modern patent systems to spread information about inventions so that they can be used by other people to build other inventions. In the U.S. we built patent depository libraries to spread the wealth of information in patents (before the internet). Patents encourage people to share the information associated with their inventions instead of keeping them a trade secret. Countries without patent systems tend to invent mainly things that can be protected with a trade secret. (See Switzerland before they adopt a patent system) As a result, other inventors do not get learn from these inventions and the rate of technological progress is inhibited.
3) The book perpetuates the first mover advantage alternative to patents. Xerox had the world’s greatest first mover advantage in plain paper copiers, when it agreed to settle an antitrust lawsuit in 1975 by giving away its patent portfolio. Its market share went from almost 100% in plain paper copiers to 14% in just four years. The first mover advantage is a fairy tale.
4) The book argues, p. 264, that there is no evidence that patents are what drive inventors to invent. This statement is completely illogical. Real property rights are not what drive farmers to farm or builders to build houses. Nevertheless, there would be a lot less building and less efficient farming, if we did not have real property rights. Just look at countries, where property rights in buildings and land are hard to impossible to obtain.
5) The book states that a number of inventions were never patented, p. 264, such as automatic transmission, Bakelite, ballpoint pens, cellophane, cyclotrons, gyrocompasses, jet engines, magnetic recording, power steering, safety razors and zippers. While it is possible that the first version of some of these inventions were not patented, all of these inventions were subject to numerous patents. This can be easily verified with a simple patent search. For instance, there are at least 20 patents and probably hundreds of patents on automatic transmissions. The same is true of ballpoint pens, gyrocompasses, jet engines, magnetic recording, power steering, safety razors and zippers. A simple internet search shows that chemist Leo Hendrik Baekeland (1863-1944) invented and first patented the synthetic resin that we know as Bakelite in 1907. Jacques E Brandenberger was granted patents to cover the machinery and the essential ideas of his manufacturing process of the new film (cellophane). The assertions of no patents for the zipper is also easily shown to be incorrect. Elias Howe, who invented the sewing machine received a patent in 1851 for an ‘Automatic, Continuous Clothing Closure’ (zipper).
6) The book argues that the Wright brothers, enforcing their patent on airplane control surfaces, supposedly shut down the airplane industry in the US. This is the typical propaganda of open source community. First of all the Wright brothers were building airplanes, so the industry was not shut down by enforcement of the patents. Second stealing other people’s property is not shutting down industry, it is shutting down theft. We would not say that someone stopped the harvest of wheat, because they did not let someone else reap the wheat they planted on their land.
7) The patent thicket argument is repeated by Mr. Ridley to suggest that patents inhibit advances in technology. A number of papers have shown that there is no empirical evidence for the patent thicket argument and that the logical analogies on which it is based are flawed. For more information see Intellectual Property Socialism: Part IV USPTO Takes Aim at Inventors.
Mr. Ridley further demonstrates his ignorance of patents by repeating the concern that the US Patent Office was issuing patents for human genes in the 1990s, p. 265. What the Patent Office did and does was issue patents on “isolated genes.” This is similar to patents on things like isolated forms of vitamin B12, which was patented. For more information see Gene Patenting Debate Continues.
9) The book also mistakenly calls a patent a “temporary monopoly.” A patent is a property right, just like property rights in land, houses, cars, etc. The logical basis for patents is exactly the same as other property rights. Property rights are based on Natural Rights, which states that since you own yourself you own the product of your labor (physical and mental). For more information see The Myth that Patents are Monopolies.
10) He also implies that patents are top down solution to encouraging invention. Nothing could be further from the truth. All a patent system does is provide property rights to inventors for their inventions. This is similar to property rights for land, which is a bottom up way to increase the productivity of farming for instance. Just giving pseudo property rights to peasants in the USSR and China caused enormous increases in farm production. Property rights are a bottom up solution, not a top down solution. In fact, the genius of the United States patent system (as opposed to Britain’s) is that it was accessible to all people, including women and slaves that had no property rights under their state laws. This encouraged a torrent of inventive activity in the U.S. that propelled it from a backward farming country to an economic and technological powerhouse in the world in less than 60 years. For more information see the excellent book by B. Zorina Kahn, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920.
I am convinced that Mr. Ridley’s poor research on patents and intellectual property is due to his infatuation with the open source movement. On page 356 he opines that genetic research will soon go open source. He is so excited about open source that he eventually suggests a Marxist’s open source utopia – “Thanks to the internet, each is giving according to his ability to each according to his needs, to a degree that never happen in Marxism.” P. 356
The open source movement has been a dismal failure. Its biggest success has been to extend UNIX (LINUX) to personal computers, other platforms, and add new features. Open source has mainly extended existing technologies, much like the incremental invention that can be expected from large companies. The open source movement deludes itself into believing they are fighting some sort of David versus Goliath battle against large corporations and the patent system. The reality is that open source developers are giving large corporations, such as IBM, their efforts for free and weakening the bargaining power of technical personnel. The open source movement plays right into the hands of large corporations and other large institutions, by weakening the property rights of developers in their work. It should be no surprise that open source has been an abysmal failure, since this exactly the situation most of the world lived under until 1800. Before modern patent systems, new inventions were rare and the return for the invention was often controlled by a trade guild. The members of the trade guild profited equally, meaning there was little incentive for the inventor to spend time creating. Per capita income of the world before 1800 had been stagnant for millennia. Where modern patent laws were adopted around 1800, incredible increases in per capita income occurred. Mr. Ridley trumpets this progress throughout his book. In areas without patent systems, we see stagnant growth in per capita income. For instance, Japan’s per capita income does not take off until they copy the US patent system in the 1860s.
It is unfortunate that this excellent book is disfigured by the author’s irrational infatuation with the open source movement. This infatuation causes the author to embrace the logical contradiction that increases in population density increase economic growth and also causes the Malthusian trap (decreases in economic growth). It also causes him to reject the solution to the Malthusian trap, which is the recognition of property rights in inventions.
 http://bakelitecollector.com/bakelite-history 7/21/10
 Ted Buckley, Ph.D., The Myth of the Anticommons, Bio, www.bio.org (2007); Epstien, Richard A., Kuhlik, Bruce N., Is there a Biomedical Anticommons, Regulation, (Summer 2004), pp. 54-58
The genesis of the non-obviousness standard (Inventive Step in Europe) was the Supreme Court’s decision in Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851). This case first articulated the idea that the improvement that was the subject of a patent had to be more than “the work of the skilful mechanic.” The case involved making door and other knobs of all kinds of clay used in pottery, and of porcelain.The invention according to the patent holder was:
This improvement consists in making said knobs of potter’s clay, such as is used in any species of pottery; also of porcelain; the operation is the same as in pottery, by moulding, turning, and burning and glazing; they may be plain in surface and color, or ornamented to any degree in both; the modes of fitting them for their application to doors, locks, furniture, and other uses, will be as various as the uses to which they may be applied, but chiefly predicated on one principle, that of having the cavity in which the screw or shank is inserted, by which they are fastened, largest at the bottom of its depth, in form of a dovetail, and a screw formed therein by pouring in metal in a fused state.
The Supreme Court upon reviewing the case made the common error of pointing out that each of the elements in the invention were known.
But in the case before us, the knob is not new, nor the metallic shank and spindle, nor the dovetail form of the cavity in the knob, nor the means by which the metallic shank is securely fastened therein. All these were well known, and in common use, and the only thing new is the substitution of a knob of a different material from that heretofore used in connection with this arrangement.
All inventions are combinations of known elements since conservation of matter and energy means that you cannot create something from nothing, for more information see KSR: Supreme Ignorance by Supreme Court. As a result, this analysis by the Supreme Court is meaningless and sheds no light on whether the invention should have obtained a patent.
Based on this analysis the Supreme Court then reasons:
for unless more ingenuity and skill in applying the old method of fastening the shank and the knob were required in the application of it to the clay or porcelain knob than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor. (underlining added)
This ruling states the well known idea that for an invention to be patentable, it must be more than just the work of a skillful mechanic. Today this is stated as the invention must have taken more than just the work of “one skilled in the art.”
There are a number of problems in the Supreme Court’s ruling in Hotchkiss v. Greenwood. First, where did the Supreme Court get the authority to add an additional requirement above novelty in order for an invention to obtain a patent? The statute at the time did not contain any such additional requirement. It was judicial activism to add a requirement not found in the statute. Another error in the Supreme Court’s reasoning is the use of hindsight. All inventions are obvious in hindsight and must be described in enough detail that they can be practiced by one skilled in the art (ordinary mechanic) to meet the requirement of the social contract of patents. Another error in the case was the failure to recognize that copying by competitors of the invention or success of the invention tend to show that it was non-obvious. Finally, the Supreme Court failed to understand the implications of the laws of physics as they apply to inventions, specifically that conservation of matter means all inventions are combinations of known elements.
Despite these errors, it is reasonable to ask did the Supreme Court’s judicial activism result in any lasting problems? According to Gale R. Peterson, Cox Smith Matthews in their paper, “Obviousness / Non-Obviousness Of The Novel Invention: Hotchkiss v. Greenwood to KSR v. Teleflex 35 U.S.C. § 103 – 1851 to 2006.”
The cases decided after Hotchkiss in 1851, both by the Supreme Court and the lower courts, were chaotic. There was no statute governing the additional hurdle an otherwise novel invention must cross before being deemed a patentable invention.
The Supreme Court’s decision in Hotchkiss v. Greenwood resulted in an unworkable standard of patentability, because it was inherently subjective. This increased the uncertainty whether an inventor would obtain a patent for their invention and increased the risk that their patent might be held invalid. It also caused the standard of patentability to vary in different Circuits and the Patent Office. Today this is widely understood to increase the cost of obtaining a patent and decrease the amount of resources invested in inventions. The Supreme Court’s judicial activism in Hotchkiss v. Greenwood resulted in numerous problems that haunt us today. Including the complete nonsense opined by the Supreme Court in the KSR v. Teleflex decision, see KSR: Supreme Ignorance by Supreme Court.
Is there any logical reason for the additional requirement of non-obviousness for patents? The definition of invention according to Free Dictionary online is “to produce or contrive (something previously unknown) by the use of ingenuity or imagination.” While Merriam Webster (online) defines invention as “a device, contrivance, or process originated after study and experiment.” I will ignore how and invention is created as a criteria and suggest the following definition, “to create something new” as a common sense definition. This definition differentiates production or manufacturing from invention. Production is creating something, but it is not creating something new it is creating something old. If you argue that it is creating something new, then the word new has no meaning in the definition. This definition does not do a good job of differentiating an invention from a new book or painting. It might be argued that a new book is not creating something new, but it is not the same as other books. So I believe this simple common sense definition has to be supplemented. Specifically, I suggest that invention is “to create something new that has an objective result.” By an objective result I mean that goal of an invention is an objective result that can be tested as opposed to a subjective result that is the result of a song being played or a book being read or a painting be viewed. An objective result distinguishes an invention from a new artistic creation.
So how does this common sense definition of invention, “to create something new that has an objective result,” match up with the requirements of patent law (101, 102, 103, 112)? This definition is generally consistent with section 35 USC 101, statutory subject matter. It excludes scientific and mathematical discoveries since these are not creations. Notably it clearly does not exclude software patents. A software enabled invention is clearly a new creation and it has an objective result. The same is true of business methods patents (for more on the nonsense associated with business method patent see – Bilski, Software Patents and Business Method Patents. This definition is clearly consistent with section 102 – new equals novel. Is this definition consistent with section 35 USC 103? No this definition is not consistent with section 103. There is nothing in the definition that suggests a standard above novelty or new. The general reason given for section 103 is that we do not want trivial inventions that just change the size or the weight or some other trivial feature of an existing invention to obtain a patent. If a change in size or weight or color does not make a difference in the objective result, it is not new and it is not an invention. So I believe the definition of invention I have offered covers this issue and therefore there is no reason for an addition standard above novelty. My suggested definition is neither consistent nor inconsistent with section 35 USC 112, since this section does not define what is an invention. Section 112 defines the requirements an inventor must meet to obtain a patent for their invention. Section 112 deals with the social contract between the inventor and society. Overall the common sense definition I suggested for invention fits nicely with patent law, but there is absolutely no logic for a nonobviousness criteria for patents based on this definition. The creation of the nonobviousness standard was judicial activism on the part of the Supreme Court without any statutory justification. The standard has proven to be completely unworkable and completely subjective. Only the CAFC’s jurisprudence before KSR provided any measure of a stability and logic to the section 103. The nonobviousness standard has resulted in increase costs to inventors without any benefit. It has increase the cost of ligation, helped technologies thieves to steal inventions, and decreased the amount invested in new technology.
I suggest the radical notion that logically the nonobviousness standard, 35 USC 103, should be repealed. If it is not repealed then we should demand a statutory definition that is as objective as possible. One objective solution would be to codify the CAFC’s teaching, suggestion, motivation (TSM) test. I have proposed an alternative standard for 35 USC 103 that I believe is even more objective, clearer, and more consistent with reality than the TSM test – see Obviousness Flow Chart . By adopting any of these solutions we will reduce the cost and uncertainty of obtaining a patent and litigating patents. This will increase the value of issued patents and increase the investment in new technologies, which are the only way to increase real per capita income – see The Source of Economic Growth.
As an interesting intellectual exercise I attempted to use ordinary definitions of novelty and obviousness to determine if the Supreme Court’s seminal decision in Graham v. Deere had any basis in logic and was in anyway consistent with the statutory language. The non-obviousness standard was added to U.S. patent law in the 1952 Patent Act. The Courts’ job is to interpret the statute. The key portion of the non-obviousness statute states:
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. (underlining added)
While many lawyers will want to immediately jump to the legislative history to interpret the statute, this is only appropriate if the statute is not clear on it face. Based on the wording and the fact that section 103 was added later than the novelty requirement, logically 103 is intended to be an additional requirement above the novelty requirement. According to Dictionary.com, novelty means “of a new kind; different from anything seen or known before: a novel idea.” The nonobviousness requirement logically requires something more than an invention be novel. In order to understand what nonobvious means, lets find out what obvious means. Then anything that does not meet the definition of obvious is nonobvious. According to Dictionary.com obvious means, “easily seen, recognized, or understood; open to view or knowledge; evident.” It is axiomatic to patent law that whether an invention is nonobvious has to be determined at the time the invention was made, in other words before the invention was known. How can an invention that has not been made be easily seen, recognized, or understood; open to view or knowledge; evident (obvious)? Clearly, an invention that has not been made cannot be open to view and how can you have knowledge of something that does not exist. Evident means, according to Dictionary.com, plain or clear to the sight or understanding, which cannot be true of something that does not exist. Unfortunately, this line of examination does not lead to any useful results. No wonder the 1952 Statute has not lead to meaningful clarification of what is patentable!
 Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 249 (1851)
 Ibid 250-251
 Ibid 266
 Ibid 268
 35 USC 112, first paragraph (Modern)
 Gale R. Peterson, Cox Smith Matthews, “Obviousness / Non-Obviousness Of The Novel Invention: Hotchkiss v. Greenwood to KSR v. Teleflex 35 U.S.C. § 103 – 1851 to 2006.” 11th Annual Advanced Patent Law Institute, October 26-27 2006.
 Ibid 3.
 KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).
 http://www.thefreedictionary.com/inventor (6/16/10).
 http://www.merriam-webster.com/netdict/invention (6/16/10).
 Graham v. John Deere Co. of Kansas City, 86 S.Ct. 684 (1966)
Many entrepreneurs, inventors, and economists complain about the Patent System and intellectual property rights. However, when you examine their complaints they are often concerned about how the patent system is implemented as opposed to the concept of property rights for inventions – patents. For instance, an extremely successful entrepreneur and angel investor I know complained that patents increase the uncertainty when investing in a start-up company. Because of the long time that it takes patents to issue, he protested that it is difficult to know when a patent might suddenly issue, affecting the business plan of a start-up in which he has invested. Other common complaints include that the patent system is expensive, time consuming, and difficulties in determining the boundaries of a patent. Some people go so far as to suggest that this shows that patents are not a true property right. After all, they reason, it is easy to determine the boundaries of real property and obtaining title to real property (land) is a straight forward process.
Here, the complainers show that their ignorance of history. Before title insurance buyers of real property paid an attorney a lot of money to determine if they would receive “good title” to land if they bought it from the seller. This title opinion did not come with a guarantee and it was not cheap. In addition, you would have to pay a surveyor to determine the boundaries of your real property. The survey process was expensive and fraught with problems until the advent of modern technology, such as GPS. Our ancestors fought each other tooth and nail over the boundaries to their land. In fact, court battles over land are a great way to trace your ancestry, because these battles were so common.
While the critics are wrong in their comparison between real property and patents, they are correct that we need systems that reduce the cost and uncertainty of determining the boundaries of patents (inventions) and whether the owner has good title (102, 103 issues). In short, we need the equivalent of title insurance for patents. I believe that standards committees (e.g., IEEE 802.11 WiFi) are acting like title insurance companies. They determine which patents are essential to practice the invention. In effect, they determine the boundaries of patents with respect to the standard and to some extent determine if these patents have good title to an invention. I also believe that NPEs (Non-Practicing Entities) also act like title insurance companies. Of course, many of the critics of the patent system do not like NPEs either.
I, too, agree that the patent system takes too long to issue patents. However, the problem is not with the concept of a patent system but with a government that has failed to fully fund the Patent Office. In the last two decades, about billion dollars in user fees have been diverted from the Patent Office to Congressional pet projects. In the US, the Patent Office has always been funded by user fees, which are the fees that inventors pay to the Patent Office when they file for a patent. However, when an inventor writes a check to the Patent Office the money is deposited directly to the general treasury account of the federal government. Congress then appropriates these fees back to the Patent Office. When Congress diverts (steals) a billion dollars of user fees from the Patent Office, it is not surprising that the Patent Office will take longer to determine issues of patentability, increasing uncertainty for start-ups. If Congress was subject to Sarbanes Oxley, they would all be thrown in jail for this diversion of fees. In my opinion, the patent process has also become too formalistic and complicated.
These complaints that I have cataloged here are not about patents per se, but with the implementation of the patent system. I agree that the present patent system is overly cumbersome, too formalistic, too expensive, and takes too long. As an aside, I will point out that the critics of patents (IP) complain about their complexity but raise just a peep about a tax system that is over 10,000 pages and a new securities law that is over 1400 pages. There appears to be a disconnect in their thinking.
Some of the solutions to the problems with our patent system will occur if the free market is allowed to create solutions like title insurance for patents. Fully funding the Patent Office will solve many of the other problems, such as the lengthy pendency times. Patents are completely consistent with Locke’s formulation of property. Patents like real property rights are fundamental to economic progress and human rights.
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.
What is the source of economic growth? Trying times like these make this question even more important. The chart on the left is particularly instructive about the sources of economic growth. It defines what engineers call a boundary layer condition. The chart shows per capita income from 1000 BC to 2000 AD, where income has been normalized to one for the year 1800. The part on the left where per capita income final takes off is only true for western countries. For instance, African countries still have incomes near or below one on this chart and incomes in Japan do not take off for almost another 100 years.
So the million dollar question is why does income take off around 1800 after millennia of going nowhere? Let’s examine the standard answers for getting our economy growing today. Is the reason that income takes off around 1800 because taxes suddenly get lower (or higher) around 1800? No tax levels did not change significantly around 1800 and in fact they were lower than today until around 1900. Tax levels averaged 10% or less of GDP during most of history. Is it because the size of government suddenly shrunk (or grew) around 1800? No, the size of government did not change significantly around 1800. The size of government did not start to grow until around 1900. Is it because we suddenly created the world’s greatest “cash for clunker program” – in other words was Keynes right we just had to stimulate demand? Well during the period from 1000 BC until about 1800 AD is called the Malthusian period, after Thomas Malthus http://en.wikipedia.org/wiki/Malthus. During this period humans are just like every other animal and our population expands until we are on the edge of starvation. I am pretty sure that there was plenty of demand during this period, at least for food. Does income suddenly take off because we figure out how to control our money supply just right? No the tools for controlling the money supply around 1800 were pretty crude. The only reason we are wealthier today than in 1800 or 1500 or 1000 BC is because of our technology. If we had the same technology as our ancestors we would be no wealthier than they were.
I am not the only one to point out that increases in our level of technology are the only reason for real per capita increases in income. Robert Solow won the Nobel Prize in economics for essentially this point. Other economists who have study this area include Paul Romer of Stanford, Jacob Schmookler who studied the relationship between inventions and economic growth and Gregory Clark from UC Davis. This area of economics is often called Economics 2.0 or Innovation Economics. One of the best books on this area (other than my book The Decline and Fall of the American Entrepreneur ) is a business book, entitled The Invisible Edge.
Not coincidentally 1800 is around the time the first modern patent systems are created. Patents are the only free market system for encouraging people to invest in inventions and technology. Patents are legal title to your invention. The first patent statute in the US is passed in 1790. The US becomes the economic and technological leader of the world because of our patent system, not because of some innate Yankee ingenuity. We are the first country in history to recognize that inventors’ have a right to their inventions. In fact, the only place where the US Constitution uses the word “right” is with respect to patents and copyrights.
Despite the overwhelming evidence for the connection between patents, technology and economic growth, some detractors are going to argue that this is just coincidence. The chart at the right shows per capita GDP for various countries. As already explained US per capita GDP takes off around the time we create our patent system. Japan comes to the US and studies why we are successful around the 1860s. Their conclusion is that the US patent system is why the US is a technological and economic powerhouse. As a result the Japanese copy the US patent system sometime in the 1870s, which is when their per capita income takes off. A similar situation occurs in China. On the other hand there are numerous countries with no patent system or ineffectual patent systems that are stuck in the Malthusian trap.
Patents are the free market system for conferring legal title to inventions and encouraging investment in technology. Increases in technology are the only way to increase real per capita income. A strong patent system is keystone upon which economic growth is built.
 US Constitution, Article 1, Section 8, Clause 8. Note the Bill of Rights are amendments to the Constitution.
Director of the Patent Office, David Kappos, provided the following explanation for why we should convert from a “first to invent” to a “first to file” system at the BIO International Convention.
“Kappos’ explanation of the long odds facing a small entity claiming to be the first to invent but who filed the patent application second. Kappos likened the odds of such a Junior Party prevailing to the odds of being bitten by a Grizzly Bear and a Polar Bear on the same day. He then went on to say that you have to go back to FY 2007 to find a prevailing small entity Junior Party in an interference. As Kappos explained, those who think first to invent is a benefit for small entities are living a lie, which is certainly true, but many will not like to hear that truth.”
There are two problems with this “practical” answer: 1) the first person to file is not the inventor logically or morally, and 2) the unintended consequences of a first to file system. A system that is supposedly practical but is not just will not succeed in spurring innovation. The real answer is to reduce the burdens associated with interferences, not to trash the morally and logically correct answer – first to invent.
A first to file system will result in many poorly thought out patent applications increasing the PTO’s workload and increasing the number of Continuations-In-Part (CIPs). The confusion created by this system of filing early and then following up with corrected applications will result in litigation being more expensive and less certain. In addition, this system will further bias the patent system in favor of large entities. Large entities will use a first to file system to flood the PTO with patents to overwhelm small entities and individual inventors in the race to the patent office. Small entities and individual inventors will never be able to compete financially in this race to the PTO. According to the SBA, most emerging technologies are created by small entities not large entities. As a result, we need to make sure that our patent system is friendly for small entities if we want it to encourage innovation.
The result of the first to file system along with the publication system in the rest of the world has been to create a patent system for large entities. The number of filings by small entities in these countries is trivial compared to the number of patent filings by small entities and individual inventor in the U.S. There is no evidence that first to file system has spurred innovation in those countries that have this system. So the “truth” here is that the first to file system is not designed to spur innovation – it is a further attempt to bias the patent system in favor of large corporations.
Dr. Patent Choate has an excellent article in the Huffington Post, please read the full article, that shows that patent reform is really about patent theft by some of the largest technology companies. As Dr. Choate explains:
America’s largest big tech corporations are now using a business technique called “efficient infringement,” which means that they calculate the benefits of stealing someone else’s patented technology against the possibility of getting caught, tried in court and being forced to pay damages and penalties. If the benefits exceed the costs, they steal.
The sad thing about the large technology companies cited in the article is that they all grew faster in the 90s when we had strong patent laws than in this decade. Their desire to weaken the patent laws dooms them and the rest of the country to slow or nonexistent growth. Ultimately, their actions will result in technological stagnation in the US.
Dr. Choate then give the specific example of how the large financial services companies conspired to steal a start-up’s, DataTeasury’s, patented technology. Then they used their lobbyists to get a clause inserted into the so called “Patent Reform” bill that would have given all the defendants in the DataTreasury case immunity. As the article explains:
Bank of America, Wells Fargo, and about a dozen other banks refuse to deal with the little company. Instead of paying up, those remaining banks have played dirty. In 2007, Washington lobbyists working for the banking industry had an amendment inserted into a pending patent-reform bill that would have granted legal immunity to all of DataTreasury’s defendants. The amendment died on the floor of the U.S. Senate after the press exposed the story.
As Dr. Chaote’s excellent book “Hot Property” vividly points out, lack of enforcement of intellectual property rights destroys innovation. I particularly enjoyed his example of how Mexico’s failure to enforce copyrights has ensured that Mexico does not and will not have a recording industry – music or movies. Theft always looks like a quick way to wealth, but it ultimately destroys the source of wealth creation. These high tech companies would rather destroy America’s wealth than have to compete in the market on the basis of the technology they can develop.
According to Information Week Government, the White House is encouraging innovation prizes. Innovation prizes have always been the substitute for a patent system as a way of spurring inventions. Unfortunately, they tend to become politicized and are much more expensive than a patent system. For instance, see the excellent book Longitude: The True Story of a Lone Genius Who Solved the Greatest Scientific Problem of His Time. In that case, the brilliant clock maker was squeezed out of winning the prize for accurately determining longitude by the politically more connected astronomy community. The patent system is self funded and provides infinitely more return than innovation prizes, such as the NSF, NIH, etc. Unfortunately, Congress has stolen over $1Billion in user fees from the Patent Office over the last couple of decades. As a result, the Patent Office is understaffed and now takes around three years to provide an initial examination of a patent application. Instead of spending money on innovation prizes, the White House should return the $1Billion in user fees with interest back to the patent office.
- A Christmas Tale: ‘I Am My Brother’s Keeper’ – and How it Applied to Patents
- Long Term Economic Predictions 2011
- The Science of Economic Growth: Part 2
- The Science of Economic Growth: Part 1
- The History of Patent Damages
- Repeal of Sarbanes Oxley and Dodd Frank Proposed
- Justice Breyer: Patent Ignorance
- New Ex-Parte Appeals Rules from the USPTO
- Mark Twain’s Birthday: Thoughts on Patents
- US Brain Drain