The Patent Office Crisis

Did you know that the first right in the Constitution is the right to protect your ideas?

The American Founders pioneered the idea that society benefits when inventors share ideas, and they created financial incentives for inventors to share.

It’s really that simple: if you, the inventor, share your ideas, the government will, for a time, make sure that no one will copy your idea.

Brief History

Entrepreneurs are business-creatives; but, are rarely also inventors. But, as employers, prior to the Constitution, entrepreneurs owned the inventive creations of employees.

This led to massive falsifying of inventorship and bounties on inventors who went their own way (see the Nat Geo’s episode on Colt vs Wesson for one colorful illustration by clicking here). You’ve probably also heard about Leonardo Da Vinci’s “mirror drawings” and that he would intentionally leave out key components in his drawing records.

Entrepreneurs held practically all financial power over the inventor. The Constitution changed that. After the Constitution, for the first time entrepreneurs needed inventors as much as the other way around. It created balanced scales that has undeniably worked in ways that were simply unimaginable about 240 years ago. Some call it the 5000 year leap.

Ever wonder why, despite its enormous economic climb and newfound wealth, China is famous for knock-offs and not independent innovation? I believe it’s because China’s intellectual property system has just been born, legally and culturally, and in the absence of a patent system that vigorously rewards inventors for disclosing their inventions, innovation languishes.*

Today’s Inventions in Jeopardy

The US has seen a burst of innovation unlike any in all of world history; however, that innovative spirit is in jeopardy. You’ll see in coming articles that the battle for the inventive mind erupted in the mid-1990s, with the introduction of inventive lobbying . . .

Yes, lobbyists.

Entrepreneurs have the financial resources, and “systems” awareness to spot an opportunity, and they found one sitting in Alexandria, Virginia, headquarters of the US Patent Office. Since roughly 1980, and especially since 1995, legislation and Court decisions (yes, judges are lobbied – although it’s considered politically incorrect to say so) have not merely taken patent power away from inventors, they have put the fingers of government to work tipping the scales of the entrepreneur-inventor relationship in favor of the entrepreneur. The result is that the power of the entrepreneur over the inventor is now arguably greater than it was prior to the patent system itself.

In the coming days and weeks, I’ll identify and dissect problems with today’s patent system, origins of the problems, and propose solutions. But, before I launch into specifics, I’m listing a few problems below and want to know what other problems YOU think need to be addressed in this series (you can share them here, or if you prefer you can private message me – after all, the patent office used to have a website where Patent Examiners trashed inventors and patent attorneys (and it is rumored there is still a private page to do so)); so your fear of retribution is not mere paranoia.

With that, here begins a list of problems (Fancy Names first, what they really mean then follows):

1. Fee Complexity, Amounts, and Penalties
Four pages of confusing 6-font fees that just go up and up and up!’s time to call the self-funding of the patent office a bad idea.

2. Practicing Entity Rule
You must be an Entrepreneur to exercise your rights as an Inventor.

3. Death of the Doctrine of Equivalents
You must perfectly describe your invention and all its possibilities from the beginning.

4. The Static Invention and Product Unity Assumptions
The patent office and legal system assume that what you file on day one is what you’re taking to market.

5. Prosecution History Estopple
What your attorney says will be used against YOU …

6. Patent Pre-Issue Publication
You have to give up one: your trade secrets or your international rights.

7. First to File
Thieves Win!

8. Strict Compliance
You have to get every formatting jot and tittle right (but, of course, patent office communications and forms are often indecipherable, without consequence).

9. Post-Filing Rule Changes
Only in the Patent Office and credit card land can rules change after the deal is made.

10. Unionization and Compensation Policies
Examiners are incentivized to focus on the important stuff: like credits/points and promotions.

11. Defenses Around Every Corner
The proliferation of defensive patent office processes and post-allowance litigation and procedures mean that a patent today is much less than a patent just twenty years ago (and for the prior 200 years), and there are no consequences for the Patent Attacker. The Infringers literally run the system.

12. “Patent Office Speak” 
The WAY the patent office talks to inventors is demeaning, and must be intentionally confusing. For example, “Final” Office Actions are not the end of the examination road.

* Similarly, because music consumers can “share” the music at almost no expense or consequence, the Recording industry is collapsing. The result? Far less music variety is being created today than in recent decades, such as the 1980s with its wide-variety of punk, reggae, show-tunes, symphonic revival, rock, hair-bands, a myriad of country styles and much, much more.

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