Patent Pending: How much is too much?

A patent grants a set of exclusive rights given by a sovereign state to an inventor or their assignee for a limited time in exchange for the public disclosure of the invention. Patents in this respect are a form of intellectual property as the invention provides a solution to a specific technological problem and may be a product or process. Of course, depending on the national laws and international agreements, the procedure to grant a patent and the extent of the rights vary widely with the burden placed on the patentee. The general requirements included one or more claims that define the invention according to the specific patent law in place e.g. some relevant requirements to obtain the patent may include novelty and non-obviousness. When a patentee fulfills the criteria, the patentee will receive exclusive rights with many countries granting the right to prevent others from making, using, selling or distributing the patented invention without permission. The general rule of the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights states that patents should be made available for WTO member states for any invention, in all fields of technology and the minimum terms of protection should be twenty years with variations on what is considered patentable.

The word patent originates from the Latin patere meaning “to lay open” such as for public inspection and while it has maintained much of its original purpose, the word has taken on a new interpretation in recent years. The word, in addition, is also a shorter version of the term letter patent, which provided exclusive rights to a person by royal decree and predates the modern system, with similar grants for land patents by state governments in the USA and printing patents, which predate the copyright. The term today usually refers to the rights granted to anyone who invents any new, useful and non-obvious process, machine, article of manufacture or composition of matter according to Wikipedia’s patent article. In some parts of the world, the patent may also be referred to as intellectual property rights e.g according to the same Wikipedia article:

 “Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called design patents in the US, plant breeders’ rights are sometimes called plant patents, and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents.

The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents. Particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.”

The history and evolution of the patent has led to the same conclusion that the rights of the inventor should be protected and rewarded. According to Charles Anthon, in 500 B.C., Sybaris in ancient Greece now southern Italy, “Encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year.” Christin MacLeod, Inventing the Industrial Revolution: The English Patent System, explains how the Florentine architect Filippo Brunelleschi was given a three year patent for a barge hoisting gear which allowed marble to be carried along the Arno River in 1421. While in 1449, King Henry VI gave the first English patent with a 20 year license to John of Utynam for his process of making color glass. The familiar patent of today came about in 1474 when the Republic of Venice decreed that new and inventive devices when used had to be communicated to the Republic to obtain the rights to prevent others from using them. England enacted the Statute of Monopolies in 1624, under King James I, declaring patents can only be granted for new inventions, while the reign of Queen Anne from 1702-14 saw the further development by lawyers of the English Court who developed the criteria that a written description of the invention must be submitted. Australia and many other countries can trace their patent laws back to the Statute of Monopolies. In 1641, Samuel Winslow was given the first North American patent by the Massachusetts General Court for a new salt making process. In France, patents were granted by the monarchy and other institutions like the Maison du Roi who examined the novelty with generally no requirement to public an invention description and the actual use of the invention adequate disclosure to the public. The modern systems was founded during the Revolution in 1791 where patents were given without examination due to the belief that inventor’s right were inherent. The United States during the Articles of Confederation and colonial period of 1778-89 saw several states adopt individual patent systems and not until the U.S. Constitution was there a clearly united idea of what a patent entails. According to Article One, Section 8(8) of the 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…

Following the U.S. Constitution, the first Congress under the Patent Act enacted in 1790, the first patent was issued on July 31, 1790 to Samuel Hopkins of Vermont for a potash production technique.

Moving from the history and evolution of the patent, here are a few of the pros and cons of the current patent system here in the United States and could be applied to many other countries around the world to varying degrees. The primary reason for an inventor to go through the patent process is to keep others out of the market making it more profitable for the them. The U.S. patent supports this idea as it will exclude others from making, selling, using, offering for sale, importing or exporting the patented invention for a definite amount of time in the U.S. The government grants the monopoly in a sense to the patentee as a reward for disclosing the invention to the public. Thus the intention of the patent is to better society by motivating companies and individuals to innovate therefore after its expiration, society can have access to the technology. In addition the exclusivity allows for restriction of competitors making a valuable tool in a competitive market. Obtaining a patent for an invention even though it may infringe on a competitor’s patent, will prevent the competitor from straying from his own idea and restrict his practices in the market. The inventor can now negotiate with the competitor for licensing rights to use their patent. The idea boils down to, “You have something I want and I have something you want, so why not work together” or “you scratch my back and I’ll scratch yours.” In a flooded market, these deals can make a difference. Tied into the second idea, the patent allows the inventor to license the technology to others for a fee or royalties or both. Inventors can even sell their patent as the technology may become out of date or the economy may enter a recession making it more profitable to sell than keep. Two big cons to the patent process are the costs and liabilities that come with it. The costs remain throughout the process and life of the patent with fees to apply, to grant and maintain the patent. If the fees are not paid, then the patent will not be issued or expire before its expiration date. With any business, patents can be riddled with lawsuits as competitors may try to invalidate your patent depending on how much the technology is worth. The problems can be insurmountable as the patent owner is responsible for enforcing the patent leaving them with only two options when someone infringes…. sue or settle at cost to the patent owner. Due to this possibility, it is important to meet with a patent attorney about the liabilities associated with the inventions as some patents can be rendered invalid thus leading to the owner being sued for unlawful monopoly. If you have the money and time to dedicate to these ideas like large corporations who have whole teams that deal with this, then go for it but if not remember this…buyer beware.

An alternative to the patent process for those who cannot afford or the unsure, a defensive publication allows the inventor to establish prior art and public identification as the creator or originator of the invention in order to prevent others from later patenting the invention. The publication can be done anonymously as well, but like a patent must give a detailed description of the new invention. Another trick of the trade comes in the form of trade secrets where the methods of a complex invention or how a chemical is formulates is not disclosed. These are protected under non-disclosure agreements and employment law preventing the reverse engineering or information leaks e.g. breach of confidentiality and corporate espionage from happening. The advantage of such strategies allows for the infinite use of a trade secret and its exclusivity as long as it is never revealed to the public, while patents can only be enforced for a certain time until others may copy the invention. In addition, no registration costs, compliance with any formalities and disclosure to the public is not require with trade secrets. However, the disadvantages include that others may use it once legally discovered, others can obtain patent protection for the legally discovered secrets and trade secrets are harder to enforce than patents.

The societal advantages to patents in theory less in practice provide healthy competition and overall improvement in technology that would benefit the whole. The modern patent allows small time inventors to become licensors of the new technology allowing the inventor to gain capital and allow innovation to occur as the inventor is not caught up in manufacturing the invention. Therefore, the inventor can spent time and energy on more innovations and leave others to the manufacturing. The patent will also drive others to design around the patented invention promoting healthy competition among manufacturers and improvements to the technology base. Many hope that these ideals will lead to a better economy and lead to a better standard of living for its citizens. A prime example of this can be seen in the Indian Patent Act of 1970 allowing the Indian pharmaceutical industry to develop local technological capabilities in this industry thus transforming India into one of the leading exporters rather than a bulk importers.

There are many criticisms of state granted monopolies or patents. As the concept clashes with the idea of free trade, countries like the Netherlands in 1869 abolished patents and then reintroduced them in 1912. Some patents have been granted on pre-existing inventions with some claiming that the United States Patent and Trademark Office is failing to examining the patents properly leading bad patents to fall through the cracks. Due to the low number of patents going into litigation, the quality of patents at patent prosecution stage has increased overall legal costs associated with patents as the current USPTO policy has compromised between full trial on examination stage and pure registration without examination. Some have questioned the ethical objectives of some especially the pharmaceutical industry and the high prices for medications that their proprietors charge leaving many poor people in the developed and developing world unable to afford the prices. In addition, many question the exclusive patent rights and high prices required to recoup the large investments needed for research and development with one study claiming that marketing expenditures for new drugs double the amount allocated for research and development. Others claim that patents reward and enable pharmaceutical companies to prioritize the wealthy over the poor as far as drug development is concerned e.g. incrementally improved treatments for diseases prevalent in the wealthy countries and away from devastating diseases in the developed world. According to James Bessen, the costs of patent litigation exceeds investment in all industries but chemistry and pharmaceuticals making it worth while for both to protect their investments.

Biological patents which involve patents relating to an invention or discovery in biology have become of increasing concern over the past few decades. The patent can be a composition of matter, a method for obtaining, a combination of methods or a product combining both. Natural biological substances may be patented in the United States only if isolated from their natural state e.g. prominent historical examples include adrenaline, insulin, vitamin B12, and gene patents. Chemical compositions based on human products have been patented for over a 100 years with the first human product patent granted on March 20, 1906 for adrenaline which was challenged and upheld in Parke Davis v. Mulford finding that the purified form was more useful than the original. The 1970s saw the first patented methods for recombinant DNA leading to patents for whole scale living organism in the 1980s. In 1980, the U.S. Supreme Court upheld a patent for a newly created living organism, a bacterium for digesting crude oil in oil spills, in Diamond v. Chakrabarty. The justification, according to the court, was that the organism was man-made and the DNA had been modified making the organism patentable even though the USPTO rejected the patent initially claiming the raw natural material and the patenting of a living organize is unpatentable. Due to the outcome of this case, many genetically modified organisms have been patented e.g. bacteria, virus, seeds, plants, cells and non-human animals even isolated and manipulated cells including human cells. Controversy over biological patents include concern over expense of patented medicines or diagnostic tests e.g. Myriad Genetics and its breast cancer diagnostic test, concerns over genetically modified food coming from patented genetically modified seeds and concern over farmer’s rights to harvest and plant seeds from the crops e.g. Monsanto v.s. small farmers.

Patent law concerning biological aspects varies from country to country leading to varying degrees of what the laws will allow. In the United States, isolated stem cells are patentable however two non-profit organizations are challenging this idea, The Foundation for Taxpayer & Consumer Rights and Public Patent Foundation, along with molecular biologist Jeanne Loring of the Burnham Institute. The European Patent Office ruled that certain stem cell lines made from destroying human embryos cannot be patented. In the United States, biological material from humans must be sufficiently transformed to be patented due to litigation of the University of California by a cancer patient named John Moore who had cancer cells removed as part of medical treatment which included the study and manipulation of these cells. The resulting cells were patented and immortalized becoming a important and widely used research tools. The subject of the litigation was the financial gain the university and researched received by licensing the cell line to other companies. Many pathologists criticize patents on disease genes and exclusive licenses to perform DNA diagnostic test as is the case of Myriad. In this case, as far back as 2009, doctors and pathologists complained that the patent on BRCA1 and BRCA2 genes prevented patients from getting a second opinion on their test results even preventing pathologists from carrying out their medical practice of doing diagnostic tests on patient samples and interpreting the results. A lawsuit filed in 2010 by the Alzheimer’s Institute of America claims that its gene patents are being used without permission. The patent covers a genetic mutation predisposed to Alzheimer’s and it applies to transgenic mice carrying the mutation. The mice are used in research on the subject both in the academic field and companies who use the mice to test products in development. The two suits are directed at companies who started based on inventions made at universities and in each of those cases the university is also involved in the suit.

The case at the moment of critical importance to the future human gene patentabililty would be the case of Myriad as will also be discussed further later as well, according to Sharon Begley’s article, Human Gene Patentability Case Heads To Supreme Court (Reuters, 4/14/2013). The problem now  facing the medical and biotechnology field seems to the fact that scientists at universities across the country since the late 1990s refuse to share their work or join forces when it comes to DNA research. The U.S. patent office has granted nearly 4,000 human gene patents to companies, universities and others who have discovered and decoded them. The reality of the situation is that 40 percent of the human genome is now patented according to a scientific study done by Christopher Mason of Weill Cornell Medical College. As of April, the United Sates Supreme Court have heard oral arguments calling into question whether human DNA can be claimed as intellectual property and remain off limits to everyone without the permission of the patent holder. The lawsuit itself challenges seven patents held by Myriad Genetics Inc. on two human genes linked to breast and ovarian cancer with the federal judge invalidating the patents and an appeals court overruling the decision which led to the Supreme Court case. The legal arguments over the Myriad patented genes called BRCA1 and 2 discuss whether they are natural phenomena as the ACLU argues or isolated genes making the products of human ingenuity as Myriad argues making them patentable. This has raised even more question as now researchers and scholars alike must tackle the questions of whether patenting genes inhibit research and whether it harms patients.

The case has caused a larger debate within the scientific community with the larger implications of such a decision weighing heavy on every aspect of not just technology but further innovations. According to Begley’s article, ” a coalition of researchers, genetic counselors, cancer survivors, breast cancer support groups, and scientific associations representing 150,000 geneticists, pathologists and laboratory professionals argue that gene patents can be problematic on both counts. The American Medical Association, the American Society of Human Genetics, the March of Dimes and even James Watson (co-discoverer, in 1953, of the double helix), among others, have filed briefs asking the court to invalidate Myriad’s patents on genes called BRCA1 and BRCA2.” As As a result, many industry groups e.g. Biotechnology Industry Organization (BIO) and the Animal Health Institute are concerned that the invalidation of these gene patents would lead to no guarantee of profit from their discoveries therefore there would be no purpose to invest in genetic research resulting in not only the patients suffering but the economy. The article also uncovers several disturbing facts regarding gene research and diagnosis:

Fact #1: “A 2010 investigation by an advisory committee to the U.S. Department of Health and Human Services revealed that patent holders prevented physicians and laboratories from offering genetic testing for hearing loss, leukemia, Alzheimer’s, Huntington’s disease, a heart condition called Long QT syndrome and other disorders affected by patented genes.”

Fact #2: “In a 2003 survey, 53 percent of the directors of genetics labs said they had given up some research due to gene-patent concerns. And in 2001, 49 percent of members of the American Society of Human Genetics said their research had to be limited due to gene patents.”

Adam Rutherford of the Guardian wrote an article, Gene patents are a hindrance to innovation (4/24/13), makes some interesting points about the recurring problems that plague the gene patent and some possible solutions to the hindrance caused by such patents. The human race carries a specific set of instruction encased in every cell of the body and encrypted with DNA with 3 billion letters of genetic code unique to each individual. What lies in the DNA is some 22,000 genes which baffled geneticists at the completion of the Human Genome Project  in April 2003 as humans have fewer than a roundworm. As Rutherford points out, many people are unaware that hundreds if not thousands of these very genes are owned by someone else. Since the 1990s, the gene patenting business has been in full swing with general patents covering the processes of extracting, reading and diagnostic tests for specific bits of an individual’s DNA. Patents are a way to maintain ownership of a process or an invention, yet genes are neither. However, there is a giant gray area in patent law that allows for isolated genes to be patented as demonstrated earlier with Myriad and BRCA 1 and 2. The company obtained the patents with the intent to charge for diagnosis costing around $3,500 which was challenged in the U.S. courts in 2010 and subsequently revoked then won back on appeal then moved to the Supreme court to decide whether DNA can be owned which will dramatically affect the way intellectual property is defined. A new challenge on the foreseeable horizon will have to deal with the field of synthetic biology. Synthetic biology is a descendant of genetic modification, however it not only includes the scientific discipline, but has an engineering solution as biology gets remixed and designed to address global issues such as food, drugs and fuel production e.g. projects include the production of malaria treatments, diesel and cancer targeting assassins. The cells themselves which will be used to manufacture these solutions will be designed and invented thus subject to clearer patents.

Even with synthetic biology, traditional biology and its innovations remain important thus their is a conscious effort to avoid the problems of gene patenting. California  based company BioBricks Foundation has begun the synthetic biology movement as it hosts a catalog of components around 10,000 parts available for free for the construction of biological tools. These parts are pieces of DNA with some genes and others gene regulators. The mission is “to ensure that the engineering of biology is conducted in an open and ethical manner to benefit all people and the planet”. It believes that “fundamental scientific knowledge belongs to all of us and must be freely available for ethical, open innovation”. The principle it employs is “get some, give some”, and there is an expectation that users can build with the freely available parts if they submit their inventions back into the catalog. As Rutherford eloquently points out, “The products of science are the foundations of civilization, and for the benefit of all. Without mature and sensible laws governing biological patents, they are in danger of becoming the embodiment of impediment to progress.”

The future of human gene patenting remains uncertain as the Supreme Court reached a unanimous decision of 9-0 against Myriad Genetic Inc. as of June 13, 2013. Of course this is not the end of the legal battle raging since 2010 as Myriad plans to appeal this decision or at least try to. Before the decision was handed down, according to Lawrence Hurley (Justices wary of wide human gene patent ruling), the Supreme Court justices early on were reluctant to issue a broad ruling about human gene patents indicating a possible compromise distinguishing between types of genetic material. The biotechnology industry could see big changes as it warned a ruling against Myriad Genetics Inc could threaten billions of dollars of investments. While the justices asked specific questions about the patents that Myriad Genetics holds, they also appeared to draw lines between synthetic and naturally produced genetic material. Much of the research conducted of late utilizes synthetic forms of DNA called recombinant DNA which would be less impacted by the decision including Myriad itself. The justices probed the limits of the arguments using a wide range of products and hypothetical questions from chocolate chip cookies to baseball bats. The main question here was whether the BRCA1 and 2 genes are a product of nature. The Obama administration came out as a neutral party to urge a compromise be reached in the case. The decision as of June 2013 stands that the two genes in question cannot be patented with Justice Clarence Thomas saying:

 “We hold that a naturally occurring DNA segment is a product of nature and not patent-eligible merely because it has been isolated…To be sure, [Myriad] found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.”

After the decision was passed down about the case against Myriad, competitors announced that they would offer a cheaper alternative to Myriad’s BRCAnalysis cancer test. The Supreme Court opened the flood gates for others in the industry to offer these options making the cancer screenings more accessible to more people besides people like Angelina Jolie.  The invalidation of the patent held by Myriad Genetics due to the genes being declared naturally occurring genes has had some initial side effects for the industry as the public stock for the company tumbled after competitors announced their cheaper alternatives. According to Sy Mukherjee’s article, The Supreme Court’s Gene Patent Ruling Is Already Leading To Cheaper Cancer Tests, Myriad held the patent on BRCA1 and 2 for 17 years which gave them a complete monopoly on genetic testing markets for cancer as the two genes in question predict the likelihood for developing breast and ovarian cancer. The test offered can cost a person $500 for a simple test to $4000 for the most extensive test making it too expensive for many women as insurance will not cover the genetic testing. Modern Healthcare reports that Ambry Genetics will offer a far cheaper BRCA test across the United States with the most expensive and detailed analysis only costing $2200 or about half of what Myriad charges. Other firms like Quest Diagnostic and GeneDx will also be getting into the cancer testing business because of the Supreme Court decision. In the long run the ruling will benefit the whole as rivals can now offer cheaper testing as well as doctors and patients can now determine the best course of treatment.

No doubt patents provide the protection needed for inventors to protect their ideas, however when it comes to medicinal drugs and treatments, patents can be life or death for the developing world as ownership of the rights to medicines become an issue. The patents for pharmaceutical companies are like an insurance policy that allows them to invest billions of dollars into developing a new products and in return they will be the only ones to reap the benefits of the sales of their innovation. This argument would be fine if millions of people didn’t need these drugs to live. Even with these drugs, many people can only afford the generic cheaper form of the new drug as the original is far to expensive for most. The patent protection provides the incentive for innovation in the developing world, but also hinders the treatment of many people in the developing world due to cost. This may drive pharmaceutical companies to invest less in medicines needed in the developing world as it is less profitable. Even with patent protection, these less profitable diseases for the most part are ignored as the more profitable disease affecting rich nations seems more attractive. To counter the overwhelming tide of greed, the World Trade Organization has regulation in place to ensure essential drugs can be imported into the developing world in cheaper forms or through compulsory licensing sometimes before the patent has expired in order to make the drugs affordable for the people who need them. The pharmaceutical industry has made cheaper versions of their drugs and even offered them free of charge to the developing world, but they have also sued for patent infringement e.g. 41 companies tried to sue South Africa due to legislation to allow importation and production of generic drugs for the treatment of AIDS, but due to public disgust the case was dropped. Another problem lies in the patenting of medicines derives from plants that have been used as herbal medicine in certain parts of the world with many arguing that the pharmaceutical companies should compensate the communities from whom they took inspiration from.

In the end, some compromise must be reached between inventor and society that will benefit both so that innovation does not become stifled due to a lack of incentive. The system, according to Nilay Patel (The ‘broken patent system’: how we got here and how to fix it), involves the active participation of companies and people involved with the patent system, the media reporting on those interactions, the analyst and experts who inform the media and the people who are vocal about issues concerning the future. Patel believes  that  many people have accepted the conventional wisdom that the patent system is beyond repair and a relic of the past made obsolete by the rapid pace of innovation even proposing it be gotten rid of altogether. The outcry of some rings true to the idea that the cost outweighs the benefits of the patent system as the resources for new development ideas has instead been spent on protecting the patent itself. The patent itself is merely an exchange of time between inventor and the public granting a limited monopoly on their invention for full disclosure in the patent specification releasing the work into the public domain after the monopoly has run out. The rules are laid out in 35 U.S.C. § 112 of the Constitution stating that the specification must be detailed enough for someone of ordinary skill to replicate the technology and must disclose the best mode of building the invention. The consequences for not adequately disclosing the claimed invention is invalidation. The patent specification will fall into the public domain once the patent expires allowing new products to be built by accessing the ever growing vault of fully disclosed technology.

Patel points out many historical examples and potential problems if and when the patent system does not exist or patent protection stops and no disclosure is required. According to Patel:

” Turns out, we already know: much of the world’s history is intertwined with fiercely secretive industries going to insane lengths to protect their proprietary technologies before the advent of patents. Craft guilds like the Masons maintained an air of mystery and prohibited teaching outsiders their trades, and medieval Venetian glassblowers were assassinated if they tried to leave the city to set up shop elsewhere. And you think Facebook and Google are going to extremes trying to prevent employee defections now.”

Patent disclosures as previously states provide a wealth of knowledge to the public domain providing some of the most advanced work ever done by some of the most creative and resourceful people in history. As the patent expires, the information is free for the taking. A potential problem, once patent protection and disclosure goes away, may be that companies become more secretive to keep a competitive advantage. To fix the system, the solution must respect both the inventor and the public in order for any reform to take place. Patel sums it up by stating, “Any talk of “changing the patent system” is ultimately talk about changing Title 35, and that means you’ve got to know what’s in there before you can reasonably evaluate any proposed changes.” The courts have interpreted the law to include “anything under the sun that is made by man” as patentable therefore an abstract idea, law of nature or natural phenomenon cannot be patented. In addition, a patent will not be granted for a known, used or previously published invention that came more than year before the patent application was filed or the claimed invention date. A patent will also not be granted for an improvement to an existing invention that would be obvious to anyone with ordinary skills.

A major problem in all aspects of the patent business is the idea of patent trolling where corporations buy up enormous amounts of patents in order to extort licensing fees. Companies like Intellectual Ventures and other patent trolls tax companies who make real products by purchasing foundational patents and litigating rather than making products. In order to stop or at least slow down companies like this, the system and the courts need to make it less profitable than making the product itself. However patents are property and  it is well within an inventors legal right to sell their invention or patent to someone else. As Patel points out, tight regulations on the sale of property in the United States is not a common practice so inventors selling their patents to Intellectual Ventures or other companies is a direct reflection of how they see the value of their invention and the fact the laws allow them to do so. Other countries have come up with solutions to the patent trolling problem with function intellectual property systems yet the United States can’t simply prevent entities from asserting patent rights because they don’t make anything. If this occurred, it would be deemed unconstitutional and inhibit universities and research firms from gaining important patent rights over innovation and devalue the progress made. One solution Patel suggest would be to limit the amount of damages a non-practicing entity would receive thus encouraging effecting and open licensing as it would be more profitable than litigation. In addition, the idea of compulsory licensing would benefit research and patent holder alike by requiring the patent holder to license the patent at commercially viable rates if product is not produced in a certain amount of time. Some countries who used this already include U.K., Germany, Australia and Japan. However, this solution is not without its problems as recent compulsory patent licensing debates have concerned cutting edge pharmaceuticals such as AIDS drugs which in the larger scheme of things can be a matter of life and death.

As Thomas Jefferson took his place as the first head of the Patent Office in 1790, he remained skeptical about patents and the potential abuse that may follow. This initial caution led to the foundation of the patent system today which states that the patent invention must be useful and non-obvious. Before his time as head, Jefferson argued that patents were an embarrassment to the public and according to Patel, worried that “abuse of frivolous patents is likely to cause more inconvenience than is countervail by those really useful.”Jefferson during his time took it upon himself to review and test most application which led to him becoming a strong supporter of patents even saying that the Patent Act of 1790 had “given a spring to invention beyond my conception.” With wit and intelligence, Patel sums up the problems and solution to the patent issue:

“But I don’t think we should sit around waiting for the ghost of Thomas Jefferson to help us out, or for the Federal Circuit and Supreme Court to try and sneak new bodies of law into appellate court decisions. It’s time we channel our own skepticism about patents into a meaningful set of legislative reforms that reflects the reality of modern American technology innovation; a set of reforms that respects and protects the explosion of interest and investment in software development while respecting the unique qualities of software itself. We live in the most radically innovative time in human history — it’s time to grow up and stop acting like the patent problem is too hard to solve.”

“Next came the patent laws. These began in England in 1624, and in this country with the adoption of our Constitution. Before then any man [might] instantly use what another man had invented, so that the inventor had no special advantage from his own invention. The patent system changed this, secured to the inventor for a limited time exclusive use of his inventions, and thereby added the fuel of interest to the fire of genius in the discovery and production of new and useful things.” – Abraham Lincoln

“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. Founding U.S. Patents.”  –The Constitution of the United States

“Well, the people, I would say. There is no patent. Could you patent the sun? [On being asked who owned the patent on his polio vaccine by journalist, Edward R. Murrow in 1954.]”-Jonas Salk

“[No one will be able to] deter the scientific mind from probing into the unknown any more than Canute could command the tides. Comment upon the U.S. Supreme Court’s 1980 decision permitting the patenting of life forms.” –Warren Burger

“Except in very narrow cases, where there’s breakthrough science that needs patent production, worrying about competitors is a waste of time. If you can’t out iterate someone who is trying to copy you, you’re toast anyway.” –Eric Ries

“Lincoln said that the Patent Office adds the flame of interest to the light of creativity. And that is why we need to improve the effectiveness of our Patent Office.” –Jay Inslee

“The quality of American patents has been deteriorating for years; they are increasingly issued for products and processes that are not truly innovative – things like the queuing system for Netflix, which was patented in 2003. Yes, it makes renting movies a snap, but was it really a breakthrough deserving patent protection?” –Robert Pozen

“The history of patents includes a wealth of attempts to reward friends of the government and restrict or control dangerous technologies.” – James Boyle, The Public Domain: Enclosing the Commons of the Mind

“Americans have been selling this view around the world: that progress comes from perfect protection of intellectual property.” –Lawrence Lessig

“The Industry’s at war. I think it’s about control. You can make all of the financial arguments that the industry has been shooting itself in the foot, but it is an industry built on a foundation of ownership and exploitation of intellectual property rights.” –Don Rose

“If a man is keeping an idea to himself, and that idea is taken by stealth or trickery-I say it is stealing. But once a man has revealed his idea to others, it is no longer his alone. It belongs to the world.” –Linda Sue Park, A Single Shard

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.” – Thomas Jefferson

2 thoughts on “Patent Pending: How much is too much?

  1. I blog often and I truly thank you for your information. The article has truly peaked my interest. I’m going to book mark your blog and keep checking for new information about once a week. I subscribed to your RSS feed as well.

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