Inventors keep filing for patents, despite a fairly hostile judicial atmosphere for patents (such as declaring patents are no longer private property, adding new limitations on where patentees can bring suit against infringers, weakening the standard for invalidating patents in administrative proceedings, and of course the various decisions adding restrictions to what is patentable, most recently a decision holding that the magnitude, level of inventiveness and importance of an invention are irrelevant to whether it is patentable).
I’ve commented before on the staggering rate of invention, and it comes as no surprise that since that article, I’ve personally been granted 53 patents, for a total of 203 issued US patents. It does come as a bit of a surprise that my first issued patent was number 6,756,879 — meaning that approximately one-third of all issued US patents issued in the 14 years between my first issued patent (6,756,879 issued June 29, 2004) and today.
There are some strong indications that this rate of innovation is slowing under the weight of legislative and judicial changes substantially weakening patent protection in the United States. Fewer lawsuits are being filed claiming infringement (though the way to count litigation “campaigns” — where a single patent is asserted against many defendants — can be manipulated to make the numbers go up or down). International patent filings are slowing (the United States is such a huge market that a weakening system in the United States may well change the economics of getting patent protection as compared to keeping things as a trade secret). US patent filings are slowing significantly more than international filings (compare the previous link with page 12 of the USPTO’s filing here).
Perhaps most salient is that the U.S. patent system fell to the 12th ranked system in the world this year. The United States was ranked #1 every year until 2017 when it dropped to #10. This year, it is behind Singapore, France, Germany, Ireland, Japan, the Netherlands, South Korea, Spain, Sweden, Switzerland, and the United Kingdom (and tied with Italy). This raises serious questions about whether the United States will continue to be viewed as a viable place to file for patent protection.
I can speak to my own experience filing for patents. With each new Supreme Court decision, and with each year passing without a change to the post-grant review procedures, I have filed fewer patent applications. The economics of them have simply become harder to justify. However, I have adopted a new procedure that does support continued filing, so I expect my filings to return to their previous levels. The procedure is:
(1) File a provisional application in the United States Patent and Trademark Office. This costs very little and gives me a year to develop the invention.
(2) Before the year expires, file a “Patent Cooperation Treaty” (“PCT”) application. Like a provisional, a PCT filing will never issue as an enforceable patent — it just keeps the door open to filing internationally.
(3) At or near the deadline for entering the national phase of various countries, examine their patent system and determine the cost/benefit of filing in that country. China’s system has strengthened and is positioned to become a premier forum for IP protection in the 21st Century. India is diligently working on their system. Germany, Canada, Australia, and the UK all represent large markets and have mature patent systems. So even if US patent law is too unpredictable or hostile to a given invention, it may still be worth pursuing in nations that are more innovation-friendly.
Patent 10,000,000 is indeed something to celebrate. It is a testament to the millions of inventors who have made the United States the world’s foundry for good ideas. The future of the patent system in the United States is uncertain, but we should all take pride in the system, decisions, and innovations that brought us to where we are.