Opinions and Editorials

Jun. 26, 2018

The Hill: Celebrating American ingenuity to the 7th power by Patrick Kilbride

This post originally appeared in The Hill on 6/26/18.

From mainframe computers to mobile devices, from vaccines to cures, American ingenuity underwritten by the U.S. patent system has compounded over time to make our lives longer, more productive and more fulfilling.

Modern technology pays the legacy forward: Apple founder Steve Jobs is named on 458 U.S. patents; Sergey Brin, president of Google parent Alphabet, is named on numerous patents related to data extraction, search query and voice interface, to name a few.

Last week, the United States Patent and Trademark Office (USPTO) issued U.S. Patent Number 10,000,000. This milestone gives us reason to pause, both to honor the accomplishments of the system and to ensure it remains positioned to support American ingenuity for generations to come.

Right now, America ranks No. 1 in the world overall with respect to intellectual property (IP) protection, such as copyrights for the creative arts and trademarks for brand owners, according to the U.S. Chamber of Commerce’s International IP Index.

But the index raises questions when it comes to patents specifically, where the U.S. ranked 12th in 2018. The lower rank in patents is due to new administrative reviews implemented in the last decade, which made it easier to invalidate patents after they were granted by the USPTO, as well as a series of Supreme Court rulings restricting the patentability of inventions in certain cutting-edge technology areas.

Supporters of the administrative reviews, including the U.S. Chamber of Commerce, point out that the rapid acceleration of technological change has led the field to become flooded with patents.

From the beginning of the current patent numbering system in 1836, it took 75 years to reach one million patents; 80 more years to reach 5 million in 1991; and only 27 more years for the number to double to 10 million.

This rapid acceleration in patent grants, combined with the emergence of abusive enforcement practices (colloquially referred to as “patent trolling”), have led to justified concerns that patents could become obstacles to innovation instead of stepping stones.

As the examination system became inundated with applications, administrative review proceedings were intended to address what was perceived to be a proliferation of “bad” or low-quality patents.

Areas of emerging technology — such as software, bio-technology and business processes, which involves new modes of industrial application — proved especially challenging sectors for patent examiners to determine patentability.