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A resource of The Center for Creativity in the Sciences
Reform the U.S.
Patent System

To encourage the independent inventors who,
throughout the history of Science and Technology,
have been the main source of our breakthroughs

by Win Wenger, Ph.D.
Project Renaissance, 1997

The U.S. Patent System was originally created for the purpose of protecting the rights of inventors, giving them an incentive to invent because they could control whoever sought to manufacture and sell what they had invented.

We propose that this original purpose has been partially subverted. The main advantage of the patent system accrues to large-scale industry and establishment, away from the independents who are our main source of breakthroughs. In fact the U.S. Patent System has become an obstacle, rather than a support, to individual independent inventors, and this has gravely crippled the U.S. economy. We suggest a body of reform which restores support and incentive to the individual inventor while changing only minimally, or not at all, the main U.S. Patent System with all its attendant international arrangements.

The problem with letting advantage
drift into the Establishment

Throughout the history of science and technology: the major breakthroughs were achieved mostly by independent individuals despite lack of resources, while the main resources and backing were focussed elsewhere, into the approved channels of hierarchical authority. Some estimates have it that dollar per dollar value, more than a million times as much return on the dollar has accrued from backing independents as has from support of the main, authoritatively approved researches, invention design efforts and projects in each of the scientific or technical fields concerned, as productive as these latter are of some useful information.

o Historically, each research and technological field acquires an extensive tradition of "places not to look," where if one looks he risks losing his grant money. This is often cited as one reason why nearly all breakthroughs come from the outsiders, newcomers to the field or amateurs. Also, as the best researchers within the field get funded and stakes rise, those researchers are carried up into administrative posts and away from the very activities at which they were productive.

o Historically, industry after industry realizes economies-of-scale and eventually develops an administrative establishment—one often at quite some remove from the context in which the actual production of new designs and new inventions happens. Beyond the particular firm, even with anti-monopoly, anti-trust laws in effect, there emerges throughout the industry a set of tacit understandings and arrangements convenient to a small number of highly convenienced people in the upper echelons of that industry.

o Historically, centralized funding—especially government funding, where you are responsible for the people's money—has to weed out all the wild ideas and wild people, and go only to where you are certain not to get a "golden fleece award." The resources in a field so funded get pulled away from alternative uses to where the money is. The way to sterilize any scientific or technological field is to substantially fund it from above. For several years of targeted productivity, such as in the instance of the Apollo moon landings, one subsequently gives up decades to stagnation.

In this historic micromoment of history, we are seeing the apparent, if temporary, exception to the above rule presented by the runaway high-tech electronics and computer industry. That surge has thus far developed too rapidly for any one establishment to be able to nail down all the corners. (What if we could get every major industry in America into such a surge?—That is one objective of the patent system reform proposed in this brief.)

Establishments generally are not made of bad people, or of those who deliberately want matters to stagnate. However, pervading the backgrounds of virtually all related decisions, whether consciously or unconsciously, is the characteristic of these relatively wealthy and powerful upper echelons to have an enormous stake in things here and now. Despite some striking individual exceptions, there is pervasive tendency with that stake to be unwilling to venture on significant change. Such meaningful changes as do happen generally have to occur from outside the purview of such inhibition and static interests, which means at least the loss of jobs abroad, sometimes even loss of entire industries. We came close, for a few years, to losing the entire automobile industry, among others.

Role of the Patent System
All that a patent really does for the inventor is to give him the right to sue in the event of infringement.

The establishment firms and upper echelons have deep pockets for legal expenses. Perhaps not quite as deep as the tobacco companies have allocated in the teeth of class action suits and public health claims, but generally deep enough. For every single instance where an independent inventor finally—after decades—wins reimbursement against a large auto firm for use of his intermittent windshield wiper, there are thousands or tens of thousands of cases where the independent simply runs out of resources and so loses by default regardless of the merits of his case.

Generally, as matters stand, it appears that no matter how well-girded an independent may be by patents, if one of the big boys wants his invention, he can pretty well take it away. Instead of inventing, the independent who resists this robbery has to spend his time, attention and resources in litigation—and will still lose in the long run, however rightful his claim might be. (The purpose of our proposed reform is not so much to cure this social evil as to restore effective production of breakthroughs by independent individual inventors now effectively shut out of the U.S. economy.)

The patent system itself, whose costs are negligible small change to the big players, represents a huge, sometimes even insurmountable investment to the independent inventor—even when the inventor does all the legal research himself, as many do, however unrelated that set of skills may be to the skills which enabled him or her to invent in the first place. Indeed, this writer's own late father, whose solar energy invention still looks good from decades later, lost $30,000 by the time all games were played concerning amendments, and the family in that generation never recovered from the loss.

Numerous engineers of this writer's acquaintance, including some full professors, have confided their private conviction that establishment firms, especially in energy and in automotives, have used their advantage to seek, acquire and bury inventions which would have meant real change in their respective industries. Such an allegation does not necessarily mean the fact that this is so, but taken in context reflects a wider recognition of what is likely to happen, in firmly established industries, to any inventions, whether derived from within or outside of the major firms, which are novel enough to look like they could upset the applecart.

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