In recent history the courts have so constrained the field of patentable subject matter that inventors no longer know what work can be protected -what is patentable. The seemingly endless enlargement of judicially created exceptions such as with the “abstract idea” doctrine in the SCOTUS Alice decision and many other adverse decisions of SCOTUS and other courts has left many inventors and small businesses mid stream without a paddle. As Judge Michel has said, ‘it appears they do not know what they are doing’.
The state of patentable subject matter and established means for claiming them were relied on by inventors and the basis for their investigation in their fields with the belief that if they solved various scientific, commercial and technical problems they would be granted a patent which would secure for them their markets with an exclusive period for a minimum of 17 years as promised by the American Inventor Protection Act. But similar to the American colonies who had charters from England and trusting in those charters forged a new world only to have Parliament subsequently declare it had the authority to enact laws for the colonies in “all matters whatsoever” -stripping the colonial legislatures of that authority, inventors built new fields believing in and relying on the promise that they would obtain patents to allow them to commercialize their inventions. They struggled through their part of the bargain risking all, only to find the courts and Congress denied their rights to their discoveries and developments. Has 18th century Parliament risen from the ashes, this time to ensnare and deny American inventors the right to their ‘faculties’, the protection of which as James Madison wrote in the Federalist Papers is ‘the first object of government’?
What Congress and the courts must understand is that inventors will not work fields they cannot own -no more than a farmer would plant corn or a rancher herd cattle he does not own. It’s about property. Show us a country with weak or ineffective property rights and we’ll show you a country with high unemployment and a weak economy. Sound familiar? That substantially explains why small entity issued patents and filed applications have plummeted to only about 10% of their historical shares, if not less and still falling.
But without us pushing them large multinationals have no reason to invest in R&D as they are content to continue milking their established markets with existing technologies and products so long as they can. Years ago in a moment of candor Microsoft was on record stating they only sought patents because their competitors do.
Meanwhile, large multinationals export more and more American jobs offshore. When they cant export jobs they import workers that displace Americans and our college graduates can no longer find jobs in their fields of study. America’s economy substantially depends on its technological leadership which is ending. It will not ‘rise up from the ashes’ until the American patent system has been restored. We continue the work to revise and reorganize our measures as we form our committees to draft our bill to accomplish that goal.