Patents, they are what they used to be

Frequently, technically interesting reading collides with professionally interesting reading, at least for patent attorneys. Such was the case for Jim Stogdill’s article at O’Reilly Radar entitled Patents, they’re not what they used to be. At the risk of complaining that someone was wrong on the internet, Mr. Stogdill made one small but important error in how he characterized the patent system.

Mr. Stogdill shares a remembrance of visiting his grandfather, who sounds like the kind of fellow we all imagine as what a grandfather should be. As a retired engineer, Mr. Stogdill’s grandfather had received a number of patents in conjunction with his work at Dow Chemical. The 16-year-old grandson was impressed with those patents, and understandably so, thinking of his grandfather “[h]e was smart, and the U.S. Government was acknowledging it in a most formal way.” Mr. Stogdill goes on to explain that his “relationship with patents is a lot more complicated now that it was then.” In particular, the recent issuance of a patent that he invented bothered him, even though the “16-year old version of [him] would have been stoked that the USPTO saw enough value in it to grant a patent.” Mr. Stogdill’s qualms about the issuance of the patent application that he had filed involves concerns around software patent policy and congressional efforts at patent reform. 

While discussions of the merits of patent reform proposals are best left to blogs not affiliated with a patent law firm, Mr. Stogdill did misapprehend the purpose of granting patents. Whatever changes are made to the patent system, changes made based on misunderstandings of how the system works are not likely to be for the better, so it is worth noting that the patent system has never been about recognizing the value of a contribution to a technology. Patent law has never been about acknowledging smart engineers. Marketing hype sometimes seeks to convince consumers that the grant of a patent is an indication of the importance or quality of an idea. The common American mythology of Edison and Bell and Whitney celebrate inventors as brilliant, but the proof of their brilliance is in the impact their ideas had, not in the patents that they obtained.

At least as taught at law school back in the 1990’s, the United States patent system has always been about granting limited monopolies to inventions that are new, useful, and non-obvious. Those inventions do not have to be important, valuable, smart, or even better than what had been done before. They only have to be new, useful, and non-obvious. After the Patent Office determines what is new, useful, and non-obvious, the marketplace will determine which inventions are valuable.

Congress will sort out what, if any, further changes should be made to the Patent Act. Groups on every side of the proposed changes can and should voice their opinions on those proposals. We should all be clear, however, that none of the proposals will - or should - change how important or smart an idea has to be in order to be patentable. Importance is not one of the criteria that the Patent Office considers. Patent examiners face a formidable challenge in merely determining whether a claimed invention is new and not an obvious extension of what is known; asking them to determine whether an invention is somehow valuable enough to justify awarding a patent is more than can be expected of them.