The U.S. Patent System Part 5: Why the U.S. System? How does it compare World Wide?

About the U.S. Patent system, what the benefits of it are, how it ranks compared to other patent systems in the world.

The U.S. Patent System Today

Why the U.S. Patent System? The U.S. Patent System is designed to help the individual invent and market useful things and at the same time avoid the development of "patent monopolies." If there's no money or benefits from invention, people won't make the effort; on the other hand, if the patents are too restrictive or last too long, the spread of inventions is limited or the products made too costly to many in society. Patent protection versus antitrust will always be a fighting issue. In general, the worth of the U.S. patent system lies in the 3 types of benefits it provides:

* It stimulates the inventor to make the invention.

* It helps the inventor, or his assignees, to develop and market the invention, thereby providing the public with the use of the invention.

* It encourages the inventor to make his invention known to others. He knows it is protected by law and so he doesn't have to maintain secrecy about it. Moreover, by publishing the patent in the Official Gazette and making copies of the patent available to the public at 50cent each, the Patent Office facilitates the dissemination of new ideas, designs, technology, and plants for use by others.

How good is the U.S. Patent System? You'll see or hear reports like: "More than 70% of the patents litigated in the courts of appeals are held invalid, while less than 20% are ruled valid and infringed." Or: "The best system is in Sweden . . . you are granted a leave of absence from your job . . . and the Government pays your regular salary plus extra money to construct your model . . . and at the end of 2 years if your invention is successful, you can sell it . . . if not you keep the salary and funding and return to your job."

Of course, no system as complex as one required for inventions in a modern technological society as large as the U.S. can be perfect. And legislation is pending in the U.S. Congress for an overhaul of the U.S. patent system. However, each "problem" of today was the "solution" to a problem of the past, and the U.S. system grew out of efforts to avoid the patents-by-whim-or-favor of the kings--and dictators--of other countries.

There are different ways of treating the statistics, but a 5-year study (1968-1972) of patent litigations indicates that less than 1% of patents were actually challenged in the courts, and of those so challenged less than 1% were found invalid. And that's out of 70,000 patents granted a year!

With regard to Sweden, the description given above is not accurate. Sweden does have a Stiftellsen for Teknisk Utveckling (STU), or Board for Technical Development, which can grant "reasonable," i.e., small, amounts of money to a company or individual inventor to help in the development of "promising" and "feasible" ideas. The funds are not linked to the salary of the inventor or his job. He or the company concerned has to put money into the project, too.

There are as many patent systems as there are countries. For instance, Great Britain and the U.S. have examining systems; that is, the pattent is checked out before issuance. France has a registration system: The patent is accepted and published, and then the fights over it begin. Countries that do not have antitrust laws or traditions of free enterprise naturally do things quite differently from countries like the U.S.

As our society changes, our patent system will have to change. The history of science and technology (and of art and literature) has shown that you can NOT legislate easily for creativity, but you can easily legislate against it. In the words of Abraham Lincoln, the U.S. system seeks to "add the fuel of interest to the fire of genius." Of course, the balance between too much protection and not enough will constantly shift: The patent examiners, like the courts, will "follow the headlines" and will tend to move faster on some types of applications and more slowly on others. Collectivists will want more government controls; individualists will want fewer. Congress will tilt now one way and now the other. But until the nature of man and our society changes more basically, the U.S. patent system will serve the goals of society by helping the individual serve society in ways that also reward him for his own ingenuity and industry.

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