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June 6th, 2013
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Could Morse Have Patented the Web?
Wall Street Journal, March 26, 2012
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Where Have You Gone, Thomas Edison?
Patent Attorney Darin GIbby’s New Book Poses the Question: Why Has America Stopped Inventing?
5280 Magazine, SuperLawyers 2012
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Reader Reviews on Amazon
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Maryland intellectual property law blog
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The Patent Prospector
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Book Room Reviews
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Physicians News Digest
The AMA’s Position on Medical Method Patents is Detrimental to Both Physicians and Patients
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SuperLawyers Magazine
Where Have you Gone, Thomas Edison?
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Huffington Post
U.S. Patent Office Favors Foreign Innovators: How the USPTO Leaves American Inventors Open to Chinese Knock-offs
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Interview in Honolulu Star Advertizer
Aspator 2011
The Impact of the Leahy-Smith America Invents Act
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Law Week Colorado
U.S Must Reinvent Its Patent System
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BNA’s Patent, Trademark and Copyright Journal
Washington Post Article of October 27, 2011
Rewind patent laws to fast-forward innovation
Op Ed posted in Denver Business Journal October 8, 2010
How to Improve the Broken U.S. Patent System
Recently Microsoft co-founder Paul Allen sued Google, eBay and Facebook for patent infringement. Many are crying foul, because there is no underlying business behind the patents being asserted. They are what we commonly call paper patents-dangerous weapons in the hands of so-called patent trolls who file or buy patents simply to turn around and sue companies for infringing on those patents. It’s a big business and a big problem, because it increases the amount of litigation clogging up the court system and makes it more expensive and more difficult to get and defend a patent.
The public uproar over Allen’s move has once again prompted Congress to consider introducing yet another round of piecemeal patent reform legislation-aimed at shooting the patent troll.
But has anyone considered the real issue-that America has stopped inventing. Today we invent less than half of what we did during the Industrial Revolution. The fundamentals behind the Internet and wireless devices were actually invented nearly two centuries ago. We’ve been using the same mode of transportation for over a century. Where are those cars that can run on water?
America’s broken patent system.
The biggest reason for our inventive demise is that America’s complex, over-legislated, under-administered patent system drastically inhibits innovation. Inventors need funding to bring their ideas to market. To make that happen they need to protect their ideas-and for that, they need a patent. But patent applications can cost $30,000 and take at least five years to obtain. Even if the inventor gets a patent, it can cost millions in legal fees to stop a competitor who has knocked-off their product. And if you get sued for patent infringement, the legal battle alone will put you out of business. The legal system typically works for big players, but the little guy gets left holding the bag.
Role reversal
In the 19th century, virtually every inventor was a farmer or mechanic, with breakthrough inventions like the radio, the AC motor and the airplane. But under our current patent system, it would be virtually impossible for these inventors to obtain a patent. This is profoundly disturbing. Where did we go wrong? More important, how can we fix this?
Fixing a broken system
To bring back America’s innovative spirit, we need a more efficient, equitable process. We need a modern equivalent to the 19th century approach. Here is what is needed:
- Require inventors to prove they have actually created their ideas. This will eliminate paper patents and most of the dubious litigation around patent trolls.
- Abolish the obviousness standard and the doctrine of equivalents. This will stop the fighting over how meritorious an invention must be before being awarded a patent, while concretely defining the bounds of a patent claim.
- Issue patents more quickly and cut the current 20-year patent term in half.
- Stop the continuation practice to reduce the 5-year backlog in examining applications.
- Go to a first to file system.
History has proven these steps will work. Is it realistic? One thing is for certain-piecemeal legislation to take down the patent trolls will only make matters worse.
The patent system needs a serious overhaul, a drastic simplification. Doing so would renew America’s spirit of innovation and open a new chapter in American history.
Whether Congress has the fortitude to deliver is another story.
Darin Gibby is a patent attorney and the managing partner in the Denver office of Townsend, one of the largest intellectual property law firms in the U.S. He has obtained patents on hundreds of inventions, from medical devices to children’s products.
ColoradoBiz magazine – August 8, 2011
How to fix the patent troll problem
We should take a page from Samuel Morse’s book
By Darin Gibby
A recent story on NPR took a negative view of the patent enforcement practices of various non-practicing legal entities, such as Intellectual Ventures. The basic gripe of many in corporate America is that these so-called “patent trolls” exist for the mere purpose of obtaining bogus patents, typically in the software arena, and then using them to extort money from innocent infringers.
While many attempt to place blame on these legal entities, others have realized that a better approach would be to fix the patent system, in essence taking the sword out of their hands. But in so doing, these critics have merely attempted to create statutory defenses by making certain patents, such as those relating to performing financial transactions, subject to higher scrutiny in the patent office. Some would ban them altogether, rather than address the real issues associated with software patents.
What most people don’t realize is that the equivalent to today’s Internet and e-commerce patents has existed since 1840, when Samuel Morse patented his famous Morse Code. Morse was granted U.S. Patent No. 1647 that covers: “The mode and process of recording or marking permanently signs of intelligence transmitted between distant points” by using electromagnetism. In reality, this is no different than today’s Internet, where packets of electronic data are transmitted to different points, then rendered on a display screen. If it was okay to grant Morse such a patent more than 150 years ago, then why not today?
Perhaps the real issue isn’t what is patentable in terms of subject matter, but whether an idea has actually been reduced to practice. In Morse’s day, patent models were submitted not only to prove that the idea could be made in the flesh, but also to give the public notice of what exactly had been invented.
Today we desperately need a modern equivalent to the model requirement. If the model requirement were resurrected, it would force inventors to prove that they have actually invented something–as opposed to simply scribbling some semblance of an invention on a patent napkin, then being awarded a twenty-year monopoly. Such a requirement would eliminate today’s paper patents–ideas sketched out on paper but never actually built–and would eliminate much of the dubious litigation involving so called patent trolls.
Today’s patent office no longer has the space to store physical patent models, but it could document proof of construction on video. Patent applications can be filed by mail or electronically. For those filing by post, a DVD could be submitted along with the application. If filed electronically, a video file could be uploaded to the patent office web site. After eighteen months, not only would the patent application be published (as is currently the case), but also the video could be made available for public inspection by a simple posting of the clip on YouTube.
The model requirement worked before. It can work again. And it would go a long way toward solving a major problem with our patent system.
Darin Gibby is a partner with the law firm Kilpatrick Townsend & Stockton, and the author of Why Has America Stopped Inventing? Reach him at dgibby@kilpatricktownsend.com or at http://www.cobizmag.com/?URL=http%3A%2F%2Fwww.daringibby.com.
