From Patent Security to Anti-Patent with the America Invents Act of 2011

Recently I asked a US Senator a simple question. “How many times is the word ‘Right’ in the Constitution?” The question caught him off guard, and he fumbled around with an answer.

After all, it is an important word in a powerful document. That much he understood.

I told him it was used only a single time.

“To promote the progress of Science and Useful Arts, securing for limited times the exclusive Right to authors and inventors for their respective writings and discoveries.”

“Oh, the intellectual property clause,” he responded.

George Washington spoke of the need to motivate innovation.

In his first speech to the joint session of Congress he recognized there were “new and useful inventions” found abroad. He then admonished, “I cannot forbear intimating to you the expediency of giving effectual encouragement […] to the exertions of skill and genius in producing them at home.”

Congress answered less than 4 months later with the Patent Act of 1790. George Washington personally signed the first 156 issued patents.

Patent Death Squad - Article 1 Section 8 Clause 8

So, how effectual is the US patent system? That depends on who you ask — and, unfortunately, what year you are asking.

It’s fruitless to argue that the rate of innovation didn’t accelerate after the signing of our Constitution. The last 234 years have produced an unprecedented time of discovery in the history of humankind.

The Constitution was signed with a feather (the writing technology of the time). I’m writing this article while sitting in the passenger seat of a motorized vehicle, on a laptop, connected to the internet, through a wireless connection of a mobile phone.

Another important word, “Secure” (“to make fast, save, protect, ensure,” Webster, 1806) is only in the Constitution twice.

First, expressing the need to, “secure the blessings of liberty to ourselves and our posterity.” Second, the pointed direction that Congress is accountable for “securing for limited times the exclusive right to authors and inventors.”

Congress seemed to understand their responsibility to secure exclusive rights to inventors back in 1904 when the bicycle shop tinkerers Wilbur and Orville Wright received their first patent.

Argue all you want about the Wright brothers patents and their effect on the “heavier than air” aviation industry. Just remember that that industry didn’t effectively exist before their painstaking efforts that led to the groundbreaking discoveries of these two brothers. Wilbur Wright aptly pointed out, “Those who tried to study the science of aerodynamics knew not what to believe and what not to believe.”

Fast-forward to 2011 when Congress passed the America Invents Act (AIA). The name of the Act harkens back to George Washington’s admonition to motivate exertions of skill and genius at home. Unfortunately, the Act did exactly the opposite.

The AIA created the Patent Trial and Appeal Board (PTAB). Just two years after its implementation the chief judge of the U.S. Court of Appeals observed the devastating impact this Act had on patents, describing it as “death squads killing property rights.”

Patent Death Squad - Invalidated Patent

This new process of invalidating patents, lobbied heavily for by the established technology companies, has been killing off patents at an extraordinary rate – with the PTAB revoking 84% of the 3,000+ patents they have reviewed.

Instead of following their Constitutional mandate to secure exclusive rights to inventors, our elected officials were securing the ability for established multi-national companies to crush independent innovation; innovation which occurred outside the well-funded research and development departments of the conglomerates.

It’s a far cry from the year 1921 when a 14-year-old farm boy thought up the idea of “electronic television” while plowing the horizontal lines out in a field. This boy, Philo Farnsworth, conceptualized the idea that an electronic image could be built up line by line. His young-adult life was spent painstakingly proving out that theory in the Green Street labs in San Francisco.

When it came time to protect Philo from the massive companies of the time (manufacturers of radios who had been out-innovated by Philo) the courts and the law protected Philo through the rights granted by his patents.

Now, in 2021, Congress is wringing its collective hands over, “how do we regulate ‘Big Tech’ monopolies?”

It doesn’t take much to connect the logical dots that when you give these companies the ability to crush the little guy with the deceptively named “America Invents Act” that these companies become all the more powerful.

Can Congress reinvigorate its responsibility to promote progress by securing exclusive rights to inventors for their discoveries?

I hope so. I’m anxious to ask the next elected official I meet.

Matt Jarman - US Inventor

Matt Jarman is an inventor who holds close to 20 patents, including the innovative ClearPlay streaming technology that helps make Hollywood movies family friendly. ClearPlay was awarded the Seal of Approval from The National Parenting Center.

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