The patent for “Coherent LADAR Using Intra-Pixel Quadrature Detection” awarded on June 19 to inventor Joseph Marron and patent assignee Raytheon Company, was the 10 millionth issued by the United States Patent and Trademark Office. The patent covers a laser-based object detection system which could be used in self-driving vehicles, and its number: 10,000,000, is a measure of the creativity and inventiveness that’s been taking place in America since its founding. But reaching this milestone suggests it’s time to review how we got here.
More than 40-percent of the 10 million U.S. patents have been issued in the past 18 years, eight times as many as the previous 210 years. Is an accelerating pace of innovation really responsible for the explosion of patents? To answer this, let’s consider the idea of good patents and bad patents.
Good patents protect solid, technically sound, specific and well described inventions and nurture innovation. Bad patents, on the other hand, tend to be vague, overly broad, abstract and poorly specified. They can lead to lawsuits and slow down innovation. Bad patents are relatively small in number — perhaps in the 10s of thousands of the 10 million to date, and, for the most part, these are patents that should never have been awarded in the first place.
For instance, Apple and Samsung have been in court for the past six years over the rounded corners of a mobile phone. And there have been lawsuits over patents for things like human genes that inevitably led to lawsuits. That was the situation until the Supreme Court intervened in 2013 and limited “DNA patents” to those involving genetic engineering..
But bad patents are also filed or acquired by so-called patent trolls or Non-Practicing Entities (NPEs) who don’t build innovative products and services based on their patents but are mainly using them for the purpose of extorting cash settlements from companies they are suing for patent infringements.
A recent demonstration of a bad patent? Take the patent awarded in 2012 for podcasting — 11 years after the birth of podcasting. This patent was nullified in 2017 after the Electronic Frontier Foundation filed a lawsuit against the patent troll. By then, the troll had already threatened podcasters and gained a settlement from the comedian Adam Carolla. (The comedian had managed to raise $500,000 from fans to make the troll go away.)
It wasn’t meant to be this way.
Constitutional protection for intellectual property
With the U.S. Constitution, our nation’s founders devised the patent system as a way to nurture innovation. Article 1, Section 8, Clause 8 states:
[The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
And from this sentence came the U.S. Patent System, which protects inventions with up to 20 years of exclusivity if they meet five criteria:
- The invention must be something that is patentable. For instance, you can’t patent a rainbow even if you’re the first one to spot it.
- It must be useful.
- It must be novel, or new.
- It must be non-obvious, and not simply the next logical development of an already existing patent.
- It must not have been previously disclosed. In other words, you can’t have published a paper about the invention or blabbed about it on your blog before applying for a patent.
After the 20 year term of exclusivity, patented inventions become available to the public, free for anyone to use. Of the 10 million U.S. patents, about 2.5 million are active. The remaining 75-percent have, for the most part, exhausted their exclusivity term and fertilized the soil of innovation this country is proud of. Nearly everything created by people, from light bulbs to deodorant and from mobile phone to car, is covered by dozens or even thousands of patents.
Last year, the USPTO issued about 320,000 new utility patents, with tech companies claiming their fair share. IBM led in single-year patent grants for the 25th consecutive year, surpassing 9,000 for the first time. Facebook, meanwhile, made its debut among the top 50 patent recipients.
The soil of innovation
So what was the first patent? It went to Samuel Hopkins, a Philadelphia farmer, for a new way of making potash and pearl ash which are used as fertilizer. President George Washington signed this patent in 1790. The system worked reasonably well, with good patents practically creating new industries. In fact, during the War of 1812, when the British marched on Washington burnt much of the capitol, they spared the Patent Office in recognition of the valuable knowledge inside.
Some notable patents:
- In 1794, Eli Whitney received a patent for the cotton gin, which revolutionized the production of cotton and extended the institution of slavery in America until the Civil War.
- Thomas Jenning received a patent in 1820 for a process he called “dry scouring” of dirty clothes, laying the groundwork for dry cleaning. Jennings was the first known African-American to receive a patent.
- In 1840, Samuel Morse received a patent for the telegraph which forever changed communication. He also received a patent — jointly with Alfred Vail, for the Morse code.
- Even the beer industry can trace its history to patents. In 1873, Louis Pasteur — yes the same person for whom pasteurization is named — was granted a patent his “Improvement in Brewing Beer and Ale” technique.
- Oh, and Abraham Lincoln also has a patent, the only President to have one. His patent was awarded in 1849 for “A Manner of Buoying Vessels.”
U.S. patent no. 6,469 was awarded to Abraham Lincoln in 1849. (Image credit: Wikimedia Commons)
- The electric light bulb? Thomas Edison in 1880.
- Radio? Guglielmo Marconi in 1904.
- The airplane? Wilbur and Orville Wright in 1906 for their “flying machine.”
- Fast forward to the digital age: and there was the computer mouse patent in 1970, one for syncing files between computers in 1999 — that was the 6th million patent, and of course, Steve Jobs’ iPod patent of 2007 for its graphical user interface.
Good patents, bad patents
Good patents fulfill the original vision of the U.S. Constitution, while bad patents clog the courts and slow innovation. The patent system is healthy when it yields only technically sound, reasonably narrow and well-described patents that benefit inventors, technology and science advancement, and the economy. It is unhealthy when it issues any number of under-examined, unnecessarily broad and vague patents that lead to excessive patent litigation and extort dollars from innocent companies.
Since the year 2000, the number of patent infringement lawsuits has grown, peaking in 2013 with over 6,000 lawsuits and still resulted in more than 4,000 cases last year, of which about half were filed by patent trolls. But last year witnessed some good news: 27-percent fewer patent infringement cases were filed than in 2016, suggesting less activity by trolls.
Even while we must leave it to Congress, the USPTO, and the Supreme Court to provide the patent system with funding, skilled examiners, and clearly-worded rulings, respectively, there is a simple thing that can be done to improve the system.
That simple thing? Everyone should do their jobs. Inventors should develop and file good patents and the Patent Office should thoroughly examine them for usefulness, novelty, and non-obviousness. Then, as the knowledge contained in good patents becomes free for anyone to use, it will add to the soil of innovation.
Congratulations to Joseph Marron and Raytheon for receiving the 10th million patent. May it fulfill its Constitutional promise and “promote the progress of science and useful arts.”
For more on the topic of patents, listen to All Turtles Podcast Episode 21.
This article was first published on The New York Times