A Brave New World with Few Patents

Major U.S. Companies such as Google have been very effective in their lobbying efforts against patents, that has resulted in the AIA law being enacted in 2012 (Amoung other new law and court decisions).  One aspect of the AIA is the new Inter Partes Review for issued patents that has turned out to be the killing field of patents.  Approx. 90% of patent claims that are reviewed in Inter Partes Review are deemed as ‘invalid’ and unenforceable.

As we move towards a world with few enforceable patents, what can we expect ?

We can expect a world that is more like the 1970′s and the early 1980′s than the 2010′s – that is a world in which a particularly fierce Asian nation threatens the economic vitality of our inventive industries with copy-cat cloning of our best technology.   Flashback to 1975-1985 when Japan was poised to overwhelm the U.S. computer industry by copying our best computer ideas, and with support from the Japan MITI, use superior manufacturing technology to produce better computers and ultimately destroy the U.S. computer industry.  After the Japanese took large market share from U.S. Automobile companies in the 1970′s, when the Japanese turned their attention to the computer industry in the late 1970′s, there was grave concern in the U.S. that the Japanese would end up running the U.S. computer industry.  I personally know a 1982 graduate in Computer Science who learned fluent Japanese and was overwhelmed with job offers.

There was particular concern that aggressive copying of U.S. computer products could be accomplished by the Japanese, leaving U.S. computer manufacturers with only a 3-4 month lead over Japanese copy-cat products.

Part of the response from the U.S. was to strengthen our patent system so that patents that had been largely unenforceable in the 1980′s could be enforced against copy-cat computer imports.

The centerpiece of our strengthened U.S. Patent system was formation of the Federal Circuit court in 1985, that immediately set out to create legal precedent that made patents much more enforceable in the U.S.

Fast forward to 2014 and we have many past actions and more calls by U.S. companies to weaken the enforcement of patents in the U.S., including abolition of patents for software which will logically extend to all firmware on computers and finally resulting in no patent protection for computer equipment and software in the U.S.

While many software patent abolitionists think that patents are excessively anti-competitive, in a global landscape, our competition is not just the company next door that will hire us if our company becomes insolvent – our competition is quite often overseas and will hire very few of us if we become unemployed.  Today, the largest Asian competitive threat is not Japan, but China, that firmly believes that they will dominate international commerce in a short time from now.

Thanks to Robert Curfiss of Houston for inspiration in this blog entry.

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