The U.S. patent system is not in a good place today. Patents are worth substantially less than they were a decade ago, patents are much easier to challenge thanks to the high kill rate of the Patent Trial and Appeal Board (PTAB), and some of America’s most innovative industries face questions as to whether their core innovations can be protected at all in the United States. Inventions in the life sciences sector and software have been hardest hit, and while many of those inventions are not protectable in the United States they can be patented in China, Europe, Canada, Australia and elsewhere. It seems America is pursuing a unilateral disarmament policy when it comes to patents and innovation policy, which makes little sense in the high tech world we live in today.
The United States Court of Appeals for the Federal Circuit has on a number of occasions found software to be patent eligible, and in several important life sciences cases has seemed to move in a more positive pro-innovation direction. Increasingly, those walking the halls of the Capitol are finding a better reception in more offices, with more Representatives and Senators interested in patents, innovation and the national security issues and economic issues tied to these important matters. Many of the biggest problems facing the patent system have been felt most directly by innovative startup companies, R&D companies and universities operating in the computer software and life sciences sectors. It is absolutely true to recognize that independent inventors and others not operating in the software or life science sectors have also been hit hard, but that has largely been as an indirect result of patents becoming devalued first and foremost in those sectors, which has sent a shockwave across the boarder market.
It is becoming increasingly difficult to justify risking everything, as so many independent inventors, entrepreneurs and startups do with a patent system that tilts so heavily in favor of large corporations who simply do not respect property rights of others. Of course, who can really blame them? The law has increasingly become structured to incentivize the theft of intellectual property rights, particularly patent rights, so it should hardly be a surprise that theft under the more sanitary label of “efficient infringement” has become the new normal.
Still, it is worth noting that for many independent inventors the problems that plague so many high tech innovators are simply not an issue. Patent eligibility rejections, for example, are not generally a problem for anything that has a tangible manifestation, so if you are inventing something that might be sold on QVC, for example, you should not encounter the same uphill climb at the Patent Office that is being faced by others engaged in groundbreaking research involving artificial intelligence or new ways to screen for and identify cancer of all kinds at a much earlier point. As crazy as it sounds, the lower tech your invention the more likely you are to be able to get a patent. The higher tech your invention the less likely you are to be able to get a patent.
So yes, the overall patent system is in decline and in need of some important improvements that will like a rising tide lift all boats. It is, however, important to keep in mind that for many the patent system is not the black hole it is for others. Therefore, before throwing away your patent dream it is worth thoughtful consideration about not only the current state of the industry with respect to the type of invention you have, but where the industry will and likely will head in the coming years.