Opinions and Editorials

Sep. 18, 2018

Daily Caller: Make Patents Great Again

This post originally appeared in the Daily Caller on September 18, 2018.

The Smithsonian’s National Portrait Gallery, housed in the building that formerly was the U.S. Patent Office, displays an 1862 painting titled “Men of Progress.”

It depicts some of the great American inventors of the 19th century: Cyrus McCormick, Samuel Morse, Charles Goodyear, Elias Howe among 19 stellar minds from the era when American invention was well underway earning its reputation.

They’re shown together in a stately room, seated at and standing around a red-clothed table. The distinguished inventors are looking at and discussing a patent model of an invention. Around them are sketches, models and other works of discovery.

This remarkable painting displays charter members of the iconic patent system that sparked the iconic inventions that changed the United States from a horse-and-buggy society into a modern, industrialized powerhouse.

Yet, America’s storied patent system has lost much strength. It’s taken hits from misguided court rulings, harmful legislation and an aggressive antipatent lobby. The gold standard patent system has become badly tarnished.

Our patent system has fallen in the U.S. Chamber of Commerce Global Innovation Policy Center’s annual rankings. The formerly number one U.S. patent system slid to 10th place in 2017 and 12th in 2018.

GIPC says American inventors “face a challenging environment for protecting their IP under current U.S. law … U.S. patentability standards and patent opposition procedures continue to create uncertainty for rightsholders.”

Specifically, GIPC points to uncertainty the courts have caused over what’s patentable and a biased patent opposition scheme. “[R]ecent Supreme Court decisions in MyriadMayo, and Alice by lower courts and guidance from the United States Patent and Trademark Office (USPTO) remained inconsistent and difficult to apply” concerning patentable subject matter.