Patent Law

Practicing

By Gary Odom and Jordan Kuhn

The objection absurd, but patents as tradable commodities has raised some ruckus, even as the loudest howler monkeys are disingenuously self-serving. The flip side of that same fake coin is that patent holders, including inventors, should be required to commercialize their invention. In other words, patents and products should be synonymous. Another boil of similar ilk is that reinvention should obviate infringement. Herein, dispelling such nonsensical notions.

One of the fundamental tenets of economics is that of specialization. Economic progress is essentially defined by allocating resources to efficient producers. Capitalism is a form of corporate meritocracy. The dynamics of business repeatedly illustrate the businesses fail when their competency is exceeded by their competitors.

The Supreme Court, in its indiscriminate KSR ruling, may have you think that the ordinary person is extraordinary, full of "inferences and creative steps." Not so. Look around you. Most folks don't have much brain wattage, nor the discipline to persevere with what creativity was afforded them. As the world's most prolific inventor, Thomas Edison, with 1,093 patents to his name, put it: "Genius is 1 percent inspiration and 99 percent perspiration."

Look at patents in any technical art area for practically any time frame, and the same names keep popping. Invention is seldom a one-off. Invention is a talent, a combination exuding inspiration and perspiration. Inventors are specialists in invention.

Thomas Edison never ran a company, never made a product, never sold anything but patents. To deny the right of return on investment for genius is to deny the highest aspiration of human existence: the power and beauty of creation.

Any company with a patent portfolio of any size has but a fraction of their claimed inventions in their products. The other inventions, those not used in products, are, in effect, a spillover of creativity. Savvy companies monetize their spillover inventions by licensing or selling those patents to other specialists who can use them by producing products, coveting only those patents related to core competency.

Proctor & Gamble, one of the world's largest consumer products companies, goes one better. It licenses all its patents, even the most valuable ones, keeping the most precious for only five years. P&G knows that keeps it on its toes. And P&G's patents have become a billion dollar a year brand unto itself.

Rationally, inventors should specialize in invention, and manufacturers specialize in productization. Where the two meet under the same roof is, as it should be, a lucrative coincidence to whoever owns the roof and what's under it.

Reinvention is the epitome of unproductivity, and so the idea of rewarding reinvention is antithetical to promoting technological progress. The very reason the patent system exists: to avoid reinvention.

The issue of reinvention raises one of the most serious problems with the patent system: its basic function goes unused. Patents serve a public notice function: in return for telling the world how it's done, an inventor gets a limited-duration monopoly. The practice of governments granting patents as public notice is both universal and long-standing.

The root problem with patents is evasion. Companies, which should be eagerly scouring the patent roster for useful inventions, instead assiduously avoid reading the patent roll. "Come and get me" is the unspoken motto. The economic inefficiency of reinventing the wheel is mindlessly of no regard, as long as one doesn't have to pay for using someone else's wheel.

Most interestingly, as an economic and rational affront, this head-in-the-sand weaseling by corporations is both universal and long-standing. Almost tautologically, such irrationality is hard to explain, except as innate selfish behavior ubiquitously exhibited by each and every human infant that ever crawled on Earth. Some things that most folks just don't outgrow is trying to see what they can get away with. In other words, corruption is human nature. That this well-honed reflex should be packaged as a justification for evading patent infringement steps even deeper into the primordial bog.

Full post as published by The Patent Prospector on May 04, 2009 (boomark / email).