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Flexible Thinking: A Patently Innovative Resolution

The month of January is named for the Roman god Janus, a two-faced deity whose role is to watch over doorways, the comings and goings of individuals, and the passage of time. In January, individuals often make resolutions to themselves; though following through on these resolutions may be short-lived, a new year often prompts us to be mindful of the need to make some improvements in our lives—whether personal or professional. One of the best ways to look forward is, like Janus, to simultaneously look backward. For technologists of every stripe, one of the best places to look back on is the U.S. Patent and Trademark Office (USPTO).

The patent office is a great place to get an understanding of the kinds of useful ideas that may shape our technological future. We generally think of patents as a means to protect intellectual property, but patents can be a valuable tool in divining what’s to come. As many of us lack a full appreciation of the history of patents, this article aims to provide a brief history and some personal comments and observations on this important topic.

In the broadest terms, the patent office has been the nation’s repository for millions of inspirations, insights, and all our inventors’ “Eureka!” and “A-ha!” moments since the founding of the United States of America. The USPTO records and memorializes all the inventions born from those special moments of discovery, allowing everyone in the world to see and learn from them.

The patent system is among the most important gifts that the Founding Fathers left us in the U.S. Constitution, specifically in Article 1 Section 8, which contains the deceptively simple Clause 8: “[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.”

From those few words enshrined in the Constitution, it is evident that they understood the importance of innovation to the success of the nation. Note that the statement does not use the term “patent” but instead uses the term “right to their respective writings and discoveries.” The idea of issuing patents came to America by way of the Old World; the term traces its roots back to England’s Statute of Monopolies of 1624, which endowed inventors with the sole rights to their inventions for a period of 14 years.

The Founders clearly knew that granting such rights would be important to the growth and improvement of the nation; they also recognized that by granting inventors limited monopoly over their ideas for a period, inventors would be more open to sharing ideas and discoveries that would help build that nation. Since its founding, the United States and its laws have protected and encouraged innovation.

The concept of the patent is now universally embraced at every level of business, at least intellectually if not always in practice. Today, while a great many countries have their own patent systems, the international Patent Cooperation Treaty (PCT) of 1970 provides a unified procedure for filing patent applications to protect inventions from member countries. A patent application filed under the PCT is referred to as an “international application,” though PCT filing does not lead to the granting of an international patent, as one must still file separately for a patent in each nation where protection is sought.

When it comes to patents, there has been an effort to “make things simpler,” but as we all know implementing such policies in bureaucracies can be challenging. Moreover, the “Rule of Law” is not always equally applied. In recent years, illegal expropriation of intellectual property has become a major concern, which is very unfortunate and undermines the intention and purpose of patent grants.  

It is a sad reality that the global patent system is not in great shape. Many countries have attempted to collaborate to make a more useful and enforceable system, but concerns over commerce and competitiveness have caused many business leaders to turn a blind eye to patents—especially among newer members of the international business community, where the idea of intellectual property is not given much weight.

The more cynical folks in most industries commonly assume that a patent is of no value until it is tested in court and backed by the weight and force of governments that have the power to restrict trade. This must delight litigators around the globe, since they seem to make their greatest personal gains from conflict; they are always assured a “win,” no matter what the outcome is for their client. As many haggard veteran inventors have observed: If you think getting a patent is expensive, try defending one.

Lest the reader be left in a dark mood at the beginning of a new year, it is important to remember that at a fundamental level, the basic idea of the patent is still a good one. If a patent causes one new good idea to enter circulation, then the process is worth it. There will never be a need to shut down the patent office as it was reportedly suggested by U.S. Commissioner of Patents, Charles H. Duell, in 1899, because “everything that can be invented has been invented.” At the time, about 700,000 patents had been issued; today, roughly 11.5 million patents exist, and the number of applications is growing. We will collectively negotiate our way through the current controversy, but even if patents were to disappear, inventors would continue to invent, as it is an integral part of our human nature.

Enjoy the new year; get out there and invent.

This column originally appeared in the January 2023 issue of Design007 Magazine.