The Slow Destruction of American Innovation

December 28, 2020 Updated: January 5, 2021

Commentary

On Dec. 11, Sens. Mazie Hirono (D-Hawaii), Thom Tillis (R-N.C.), and Chris Coons (D-Del.) sent a letter (pdf) to Andrei Iancu, director of the U.S. Patent and Trademark Office, requesting an inquiry into whether “qualified women are unnecessarily excluded from membership in the ‘patent bar.’” In other words, is there a systemic, purposeful exclusion of women from practicing patent law?

This thesis was set forth in a recent paper titled “The Patent Bar Gender Gap: Expanding the Eligibility Requirements to Foster Inclusion and Innovation in the U.S. Patent System” by Mary T. Hannon, a patent agent with Marshall, Gerstein & Borun and a juris doctorate candidate at DePaul University College of Law.

This “inquiry” is yet another in a line of attacks on American innovation and constitutional rights that have been occurring over the past decade. While this one is coming from the “woke” left, sadly the attacks are also coming from the right under the mistaken or misleading guise of promoting free markets and attacking monopolies.

The America Invents Act

In 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.

Big Tech lobbied Congress to pass the America Invents Act, which weakened U.S. patent law. This effort was led by Rep. Darrell Issa (R-Calif.) who, ironically, co-founded and ran Directed Electronics, a company that made money by asserting its many patents against competitors. Issa has just won back his seat in the House and will no doubt press once again for “patent reform” that will further shift economic power from the entrepreneur and individual inventor to Big Tech. And Big Tech may once again have a good friend in the White House who will also encourage this kind of “reform.”

The act threw up more obstacles to patents than ever before. Most of the damage was done by the inter partes review, which allows any person or company to go to the patent office and request a reexamination of a patent that the office has issued.

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?

Such a patent reexamination, while inexpensive to the challenger, is expensive for the inventor, who must defend his patent a second time, and sometimes multiple times from multiple challengers, to prove that he or she was deserving. This strategy has worked to destroy many patents. At inter partes reviews, 65 percent of patents are invalidated on reexamination and an additional 16 percent are partially invalidated (pdf).

Alice and Other Supreme Court Decisions

The 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.

In its decision, the Supreme Court stated that methods, which have always been patentable, are still patentable, and software, which is a method for a computer to execute, is still patentable, but a method executed by a computer is not patentable unless that method improves on a technology. What? Even federal circuit judges who specialize in deciding patent cases were confused and continue to be confused. The result was more uncertainty for inventors and more freedom for infringers to ignore patents.

Identity Politics and Patents

And 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.

She also believes that women with a degree in nursing should be qualified even though nursing is not a scientific course of study that would enable one to examine modern patents on recombinant DNA techniques, monoclonal antibodies, or chemical structures of novel pharmaceuticals, for example. The days when there were a significant number of patents in the field of nursing have long passed.

The Constitutional Right for Patents

Most 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 Founding Fathers knew that patents spurred innovation and gave economic power and upward mobility to even the poorest U.S. citizens. They considered patents to be so important that they passed the Patent Act of 1790 even before passing the Bill of Rights in 1791. Thomas Jefferson initially opposed patents as being a government-directed monopoly, but as secretary of state, he became the first acting head of the U.S. patent office and observed that it had “given a spring to invention beyond his conception.”

The Great Equalizer

As 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.

In 1809, long before women had the right to vote or even the ability to own property, Mary Dixon Kies obtained a hat weaving patent. Kies and her patent helped fuel the growing American hat industry at that time.

In 1821, when many African Americans were slaves with few rights whatsoever, Thomas Jennings patented the dry-cleaning method. He leveraged his patent to grow his tailoring business and used the profits from that business to support the abolitionist movement, fund civil rights organizations, battle racial segregation in the courts, and purchase his wife and children out of slavery.

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.

Bob Zeidman is the creator of the field of software forensics and the founder of successful high-tech Silicon Valley firms, including Zeidman Consulting and Software Analysis and Forensic Engineering. He is the author of textbooks on engineering and intellectual property as well as screenplays and novels. His latest novel is the political satire “Good Intentions.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.