The America Invents ActIn 2011, Big Tech was able to convince many people that patents hindered innovation, despite more than 200 years of evidence that the opposite was true. They were able to convince those on the left who obediently looked to Big Tech for their guidance on technology. They convinced college students who believed that their professors who taught law, business, and entrepreneurship knew more about the real world than actual inventors and entrepreneurs who created new products and started new businesses. They convinced libertarians that intellectual property rights were government-approved monopolies that were somehow different from government-issued deeds to physical property, despite modern libertarian support of patents since its beginnings in the early 20th century.
This is akin to a law that would let any person inform the police that they thought you weren’t qualified to drive, whereupon the police would revoke your driver’s license and force you to retake your driving exams. Can you imagine how people would take advantage of such a law?
Alice and Other Supreme Court DecisionsThe America Invents Act was bad enough, but it was followed by court decisions that further hindered the patent system. Of particular note was the Supreme Court decision in Alice Corp. v. CLS Bank Int’l in 2014. To explain the “Alice” decision, you need to understand three key sections of U.S. Code Title 35—PATENTS, which defines patents and patent eligibility: Sections 101, 102, and 103.
Suppose you’ve made a machine that you believe is innovative and useful and you want to patent it. Section 101 describes whether your machine is something that is even eligible to be patented. Section 102 describes how to determine whether an already existing invention does the same thing as your machine (i.e., it “anticipates” your machine), which would render it unpatentable. Section 103 describes how to decide whether a person who understood the technology at the time of your invention would have been able to combine existing inventions to make your machine (i.e., your invention was “obvious”), which would render it not patentable. Section 101 is a matter of law, which means that lawyers can decide. Sections 102 and 103, however, are matters of fact, which means that experts in the technology are needed to investigate the technology and present their facts to a judge or jury at a trial.
The Supreme Court’s Alice decision threw patent law into disarray. The Supreme Court said that whether something was patentable under Section 101 depended on the technology, but it was still a matter of law, which means lawyers get to argue about technology and a judge gets to decide without a scientist or engineer ever getting involved.
Identity Politics and PatentsAnd now, this new study purports to show systemic sexism that excludes women from patent law. Starting with simple statistics that there are fewer female lawyers than male lawyers and fewer female patent lawyers than male patent lawyers, the conclusion is that this discrepancy is caused by bias, though no proof of such bias is actually given. Liberals believe that all people are equal in every way and therefore any inequality must be due to bias; no other proof is needed (read “The Kindergarden of Eden: How the Modern Liberal Thinks" for a great explanation of how this explains all modern liberal ideology).
The paper further draws the conclusion, seemingly accepted by Hirono, Tillis, and Coons, that more female patent attorneys would encourage more women to become inventors. Seriously? Do inventors invent because of lawyers? Has the average person ever met a patent attorney or seen one in the newspaper or on TV? This conclusion is like saying that more women would lead healthy lifestyles if they knew there were an equal percentage of women doctors, or that African Americans would be better writers if they knew that there were as many black editors as white editors. You can make a flimsy but believable argument that more women would invent if they had more female inventor role models. But lawyers? Most people don’t even trust lawyers.
The solution proposed by this paper is to lower the requirements for admission into patent law. The underlying assumption, of course, is that women can’t meet the current strict requirements, which I find to be blatantly sexist.
The patent office has several options for admitting lawyers to the patent bar, and in my opinion, they aren’t strict enough. Options include earning 24 credit hours in physics at any accredited college or earning 30 to 40 credits in other scientific disciplines from accredited schools. Hannon proposes removing “undue requirements” on program accreditation and coursework. In other words, Hannon believes that women are generally incapable of passing a small number of accredited college courses in basic science.
The Constitutional Right for PatentsMost Americans don’t think of patents as being a basic right, but they are, just like gun ownership and free speech. The legal basis for U.S. patent law is found in Article I, Section 8 of the U.S. Constitution: “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 Writings and Discoveries.”
The Great EqualizerAs far as equality of opportunity goes, the U.S. patent system is already among the best equalizers in our history. At times when our society overtly practiced discrimination based on gender and skin color, women and African Americans used the patent system to commercialize their inventions and create wealth.
What Does the Future Hold?Since 1790, the United States has greatly benefited from its patent system, which resulted in the United States becoming the most innovative country in the world. That is, until recently—China now ranks first in the number of patent applications, and the United States is a distant second, according to a 2018 report by the World Intellectual Property Organization (pdf).
We need to keep our meritocracies in place to keep America strong in all areas, but innovation and entrepreneurship are among the most important because they keep our economy strong.
Too many people throughout the political spectrum don’t understand the role that the patent system has played in America’s economic growth and technological leadership. Too many politicians from both political parties don’t understand why our Founding Fathers placed such a heavy emphasis on intellectual property and why that has been so important in avoiding the economic disparities and class immobility found in so many places throughout the world.
Just as we must pass on other important American values to our children, so must we teach them about a free-market capitalism that requires a strong patent system. Just as we vote for politicians based on their support of our other constitutional rights, we must remember that patents and other intellectual property also compose constitutional rights.
Abraham Lincoln once called the patent system one of the three greatest advances in human history, surpassed only by the discovery of America and the printing press—because any system that encourages people to innovate, and reap economic rewards for the innovation, is better than nearly any other innovation in and of itself.