American Invents Act II

In the previous blog, I talked about what America Invents Act (AIA) entails and also the perceived benefits of AIA. In this blog, I will discuss some of the controversies around AIA.

What are the disadvantages of AIA?  It has been argued that this gives more benefits to the big guy. Why? Because filing patent is very expensive. The big chuck of the cost comes from having a good lawyer to draft the application. Big companies can afford to apply for more patents, and more quickly. On contrary, if you are a small startup with insufficient funds, you simply can’t file patent for every invention or every trivial modifications of the invention. It is suggested that this in term puts the startup at more disadvantaged position because for most startups, their value lies in possessing popular inventions.

Does AIA surely give more benefits to the big guys? I argue that it is not necessary the case. Larger company does more money. But they also have more people creating more inventions everyday. Under the previous system, as long as the big companies invent more, they have claim over more. But with the new system, it is possible that the pace at which they apply for the patents do not follow the pace at which they invent.  On contrary, smaller companies are more agile in identifying which innovations worth patenting and can consequently act quickly to take steps to protect these patents.

America Invents Acts I

Thanks Kasznik for the lecture on “The Role Of Intellectual Property As a Strategic Business Asset” given last Friday. Of the discussions, one topic that I found interesting is America Invents Act (AIA). Kasznik showed a graph on “Patent Litigation across the past 5 years.” The graph shows that patent litigation rose sharply from 2010 to 2013, and declined from 2013 to 2014. Interestingly, AIA went into effect on 2013, the time at which number of patent litigation declined.

Is AIA responsible for reducing the patent litigation? To answer this question, we need to first understand what AIA entails. AIA is a United States federal statute that was passed by Congress and singed into law on September 16, 2001. Its central provision is changing U.S. patent system from “first to invent” to “first inventor to file.” “First to invent” means inventors don’t have to rush to patent office to file for invention because even if someone filed before you do, as long as you have kept lab notebooks and prove that you are the first inventor, you will still get the patent.  “First to file,” on the other hand, means inventors need to race to file their patents as soon as possible because many people do come up with similar inventions and whether you can get the patent depends on when you file for patent.

What are the benefits of AIA? First, AIA aligns the U.S patent system with the international patent system. Second, the act adds greater predictability to determining who has priority to an invention. The switch to “fist to file” modifies the definition of what prior work can be used to deny a patent. By setting a clear boundary of who has patent ownership, the new system reduces litigations on fighting whose invention notebook dated earlier.  

Kirby Ferguson on IP

Kirby Ferguson’s insightful talk on remix challenges the logics behind the patent laws. Using examples that ranges from music to technology, he points out that everything is remix.  In other words, everything is built upon what were previously available. However, the American copyright and patent laws run counter to this notion by giving “property” rights to innovators. Kirby’s talk reminds me of the first assignment that we did for this class. First assignment Top Ten Inventions emphasizes the same theme that everything is a remix. Ubiquitously used wheels and nails provide cases in point. Imagine how much we would need to pay for an iPhone if Apple is required to pay license fees for every component it did not invent itself. 

To challenge the logics behind patent laws is not to say that patent laws are without merit. Some inventions such as medicine development require huge capital investments. If a new medicine is allowed to be freely copied, then everyone will want to free ride and the medicine industry will stagnate. However, if every piece of medicine is patented, then it just increases the inventing cost for the future inventors. When this cost accumulates, it creates a huge entry barrier and can also stagnate the medicine industry. People in the legal field are still searching for the right mix of polices to protect and at same time encourage invention. For such search to be successful, these people need to recognize the nature of all invention is remixing.

Jahanna Blackley on IP

Johanna Blakley gave a very interesting Ted Talk on Lessons From Fashion’s Free Culture. She used fashion industry as an example to challenge some of the common conceptions of IP protections. For one, more protection does not necessarily correlate with higher gross sales. To support her observation, she showed a graph with gross sales across different industries. Interestingly, the gross sales for low I.P protection industries such as fashion and food are much higher that of ones with high protection industries such as book and film. While these differences are probably exaggerated due to different cost and profit calculations for respective industries, I think she nonetheless provides insightful analysis on how low IP protection in fact pushed the designers to innovate more.

Johanna’s search for underlying logic behind things that are copyright protected and those that are not is similarly thought provoking. Two important aspects she found are 1) artistic objects deserve protection and utilitarian objects do not; and 2) idea that needs to freely circulate has no protection while physically fixed expression of an idea do have protection. She has correctly pointed out that in the modern world the boundary between what’s artistic and utilitarian is blurring and the advancement of technologies put everything on digital files. As technology becomes more integrated to our daily lives and works, copyright industry will face unprecedented challenge as many of the current IP laws are defined by physically objects. It is time to revise these IP laws.

Silly Patent #2: High-Five Machine (US 5356330)

In this blog, I consider the economic ramifications for granting patents to inventions that may be novel but very obvious. 

The High-Five Machine is an apparatus, which “allows a user to simulate a ‘high-five’ in celebration of a positive event, thereby providing the user with a convenient outlet for the release of excitement.” The motivation is the observation that people watching sport event along can’t have high-fives. The mechanism is to use moldable plastic or rubber material in shape of an average size human hand to provide a pivotable, self-righting hand-arm configuration for simulating a “high five” when struck by the hand of a user.

The mechanisms of how this High-Five Machine works is very standardized and it should be obvious to person skilled in part, mechanics in this case. However, this patent demonstrates that patent is not all about high-level techniques or new discoveries, it can also include reassembling of previous artisanship with a little bit of creativity.  If the High-Five Machine offers the same excitement outlet as that of human, it could make a lot of money for the inventor. On the other hand, if the inventor charges a very high price for this product, it produces unfair monopoly since the inventor really did not need to do much.

Silly Patent#1: Animal Ear Protectors (US 4233942)

This invention is a device that functions as a protection for animal’s ears from being soiled by the food while the animal is eating. The motivation for this invention is the observation that animals’ hair often gets in contact with food while they eat. Hence, the inventor aims design a device that prevents such contact and at same time is comfortable for the animal to use. The basic mechanism for the device is a tubular shaped plastic sheet that can be opened and closed to allow easy insertion of the animal ear. The ear protectors and animal’s ears are held away from the head of the animal by two straps, one passing above, and one below the head of the animal.

This patent was granted in 1980, and it demonstrates the flaw of the obviousness test. In general, an invention is not obvious if the invention is not obvious to a “person having ordinary skill in art.” The non-obviousness test used in the 1980 is teaching-suggestion-motivation test. This test requires that there be a suggestion or teaching in the prior art to combine elements shown in the prior art in order to fail the non-obviousness test. In 1980, the Internet has not been invented and mass media is not as pervasive as today. Since the use of animal ear protector is trivial, it is unlikely that such method has been formally documented even if the method has been used by some people at home. Additionally, the animal ear protector should be obvious to person skilled in art since horsetail braiding, commonly practice for a long time, has the same effect of separating tail from the horseback.