On Tuesday, we’ll reach a milestone: Ten million U.S. utility patents will have issued since the current numbering system began in 1836. Over that 182-year span, the U.S. patent system has been a beacon for innovation around the world and represents a truly unique concentration of ideas and innovations.
But the U.S. patent system isn’t unique because it has issued so many patents. It isn’t unique because of its dedication to helping the public understand what goes on at the Office (although the U.S. Patent and Trademark Office is by far the best patent office in the world when it comes to transparency and public data.) It isn’t even unique that patents are part of our Constitution—countries ranging from Bulgaria to Germany to Slovenia all have constitutional protections for patents, some stronger than our own. Bulgaria’s constitution, for example, specifies that “the State shall protect all inventors’ rights”.
The truly unique aspect of the U.S. patent system is the recognition that the patent system isn’t there to reward inventors or protect ideas or even to issue patents.
The U.S. patent system is unique because it recognizes that none of that matters—unless it promotes progress.
Promoting Progress and Promoting Pirates
The IP Clause in the U.S. Constitution says Congress has the power to, if it so chooses, “secur[e] for limited times to authors and inventors the exclusive right to their respective writings and discoveries” in order to “promote the progress of science and useful arts.”
Three clauses later, the Constitution gives Congress the power to create pirates by granting letters of marque and reprisal.
Obviously, granting letters of marque and reprisal is a critically important power of Congress. Why else would it be in the Constitution? Letters of marque enabled a young nation, lacking a standing Navy, to allow private citizens to operate as auxiliaries in a way the law of nations understood. Then again, the United States hasn’t issued a letter of marque since the War of 1812.
In the American tradition, and in the U.S. Constitution, inventions aren’t a moral right that inventors deserve simply for having invented something. They’re a creation of public policy, granted by statute, and we grant them in order to increase progress. When creating privateers began to hinder, rather than help, our country, we chose other options for defending the United States. And if the patent system fails to promote progress, the Constitution tells us to think about changing how we grant and use patents.
The Next Ten Million Patents
That’s exactly what Congress and the USPTO have done over the past few years. Faced with a patent system that granted patents on obvious ideas and made it impossibly difficult to defend against those improvidently granted patents, the USPTO devoted new efforts to improving examination and Congress created a procedure for efficiently reviewing patents that never should have issued. Rather than continuing to strengthen patent rights at the cost of innovation, the patent system re-calibrated patent rights to promote innovation.
And that re-calibration succeeded. Innovation continues to skyrocket in the United States, with research and development reaching new highs and new inventions constantly emerging. The most advanced drugs emerge from U.S. labs. The most advanced semiconductors are made in U.S. factories.
As we look forward to the next 10 million patents—it’ll take a lot less than 180 years this time—let’s continue to make sure our patent system promotes progress, rather than just promoting patents.
Josh Landau is patent counsel of the Computer & Communications Industry Association.