“I have not failed. I’ve discovered ten thousand ways that don’t work.” The quote, ascribed to celebrated inventor (and prolific patent holder) Thomas Edison, captures the innate optimism of those who engage in the exhausting, risk-laden work of innovation.
Without the promise of a patent, emulating Edison’s level of dedication would often require limitless resources or irrational zealotry. The modern patent system was founded on the premise that making innovation viable for rational actors requires incentives substantial enough to offset the enormous risk of failure. Innovators will explore the frontiers of technology only if the cost of discovering ten thousand ways that don’t work might be recouped by discovering one that does.
Patents have long served as a key currency of innovation, and the patent system has long endured attempts to devalue that currency. Articles published in the August 8 issue of The Economist continue this regrettable tradition, pairing conclusory pronouncements with outdated, selectively presented studies in an effort to prop up its misguided thesis: that the patent system is an obstacle to innovation.
Opponents of patents suggest that incentives to innovate exist without patents, and the absence of the property right would make the fruits of innovation more accessible. Among the problems with this narrative is that it relies on a false assumption—that in the absence of patents, innovation will simply occur in the open, freely available to all. This ignores the obvious alternative—that innovative ideas will be kept secret, preventing copying by others while capturing the benefits of inventions solely for inventors themselves, in perpetuity. This approach has long prevailed in countries lacking effective patent protection. In fact, one of the reasons for adopting early patent systems was the shortcomings of the guilds, where secrets of industrial technology were closely guarded, both erecting insurmountable barriers to market entry and stunting technological advancement.
The same dangers exist today: if innovation could only be protected through secrecy, then the public domain would shrink and society would be deprived of knowledge necessary for follow-on innovation critical to fostering technological progress. This alternative reveals as hollow The Economist’s complaint that patents “last too long”, as trade secrets are protected for as long as they remain secret. There are legitimate, pro-competitive reasons to keep secret certain innovations that need not be disclosed, but the patent system both encourages those innovations that would have less value if kept secret and provides an incentive to disclose inventions early. And where inventions cannot be protected through secrecy, history has shown that those countries lacking effective patent protection see little investment in innovation at all.
The articles also ignore the patent system’s important role in facilitating collaboration among innovators, by providing participants with clear markers for the value of ideas brought to the collaboration and confidence to overcome any trust deficit between distinct (and sometimes competing) entities. Patent protection can even serve as critical leverage for smaller inventors— it enabled renowned British inventor Sir James Dyson to hold discussions with and license his early vacuum cleaner innovations to incumbents, building the financial and reputational strength to launch the famously innovative household products company that bears his name.
It is ironic to see a British publication imploring the United States to limit patent protection to breakthrough inventions, when in fact the American patent system was explicitly designed—in reaction to the widely criticized pro-aristocratic 18th century British system—to protect incremental inventions as well as major (often capital-intensive) breakthroughs. This approach worked so well that by the late 1800s, England and the other great colonial powers of Europe adopted it themselves.
The views expressed by The Economist also seem unaware of today's real world patent system. For instance, its warning of “submarine patents”, a once-significant concern, was obviated some 20 years ago in the U.S. using a sensible limitation imported from Europe. And then there is the call for an inexpensive way to challenge granted patents outside of court—a wise enough idea that the U.S. implemented such procedures in 2011 with the America Invents Act, which created a comprehensive, inexpensive and speedy system to challenge granted patents outside of court.
And while bad patents surely exist (albeit more easily challenged today than ever before), no attempt is made by the articles to seriously discuss patent quality or the ongoing efforts to improve it, instead presenting facile, “sound bite” judgments about what should or should not be patentable. Such judgments confuse inventions that make complicated systems simple with simple inventions, dismissively stating that “Twitter does not deserve a patent on its pull-to-refresh feed.” Why not? Anyone who has witnessed a toddler manipulate an iPad cannot dismiss the major advancements giving us wonderfully intuitive user interfaces in today’s devices. Are such advances really unworthy of the investment that the promise of a patent incents?
Charitably speaking, The Economist has found ten thousand ways to disparage the patent system that don’t work.
Kappos, former head of the US Patent and Trademark Office, is senior adviser to the Partnership for American Innovation (PAI).
