Co-authored by Chris Gallagher
Higher education divides students into two overarching categories: Arts and Sciences. Arts students may be required to take a science class or two, where they are briefly exposed to such concepts as the history of scientific progress, various laws of physics and chemistry, or the importance of 'scientific' measuring and analysis.
In stark contrast, their Arts classes direct their focus towards 'creative' activity, whether in literature, government, performing and visual arts, or other fields. As a result, Arts students often conclude that science is about precise formulae and mathematical precision, while creativity resides solely in the Arts. However, nothing could be further from the truth. Creativity is at the heart of modern scientific innovation.
Scientists know that scientific progress is often the product of vague hunches, happenstance, accident, and even pure luck rather than precise planning. That is why scientific innovation has been described as "10 percent inspiration and 90 percent perspiration." Invention is really about dogged, deliberative, and creative tinkering. It requires getting to failure fast, followed by persistent probing for the next adjacent possibility. Successful commercialization is filled with similar fits and starts.
The stumbling steps to deeper understanding and innovative progress resemble Darwin's randomly occurring algorithm for change, much more than the pre-organized project outline for the high school science fair most of us recall with a mixture of apprehension and annoyance.
Such is the daily drudgery of labs everywhere as they measure failure, record it, learn from it, and then move on until one way or another, success emerges, the timing of which is as unpredictable as the future itself. But creatively dealing with failures is the very stuff of eventual success.
The amazing grace periods in our existing patent law enable the creativity of scientific pursuit to flourish. The patent law's Section 102 (a) allows invention in private to move at its own pace, and Section 102 (b) shields independent invention from piracy for a year. Additionally, it allows the collaborative support -- needed to cross the gap from idea to development and implementation -- to work effectively and cost very little, so long as proper records are retained by the inventor.
Unfortunately, this jagged advance towards modern scientific achievement is not well understood by the Arts majors who then matriculate to law schools, land on Capitol Hill, and draft laws to manage and govern the progression of creative science. Nor do they understand the utter dependence of scientific progress on the existing U.S. patent system. Their notion of innovation more likely resembles what they learned in their 'science-lite' text books. It resembles the symbolic 'light bulb' of an idea that suddenly pops into the inventor's mind ready for patenting, production, and distribution to a grateful public -- and perhaps recorded for posterity in Science 101 texts.
Worse, the creative geniuses at large corporations, whose early technological fumbling eventually led them and their companies to global market dominance, have forgotten how their ideas came to fruition. Perhaps more likely, as they remember the tinkering in their labs or garages, they fear the innovation path that gave them their chance at success may be followed by others who will potentially dislodge them from their market incumbency.
They remember the ladder they had to climb. Now they want to pull it up behind them through the proposed patent 'reform' lest it be used again to foster the development of the 'next new thing.' Thus they are driven by their incremental innovation model to try to change the amazing grace periods in the current patent system to retain their dominance in highly competitive, consumer-driven markets.
Given the incredibly short life-cycles of modern technology, they are correct to fear disruptive innovation. But they are wrong to try to change the patent system rules to favor their continued dominance. They do our country a real disservice.
Infused with the wisdom of our Founding Fathers, who experienced first-hand the power and market-domination of entrenched incumbents courtesy of 'royal monopolies' granted by the English crown and other monarchies, Article 1 Section 8 Clause 8 of the U.S. Constitution was no accident. It created U.S. patent law's 'First-to-Invent' system.
This system, based on the Founder's knowledge of John Locke and natural law theory, has worked extraordinarily well for more than 200 plus years. Most importantly, it comfortably accommodates the messy realities of scientific creativity manifest in early stage innovation. Its unique grace period intervals and their safe harbors for incubation are a critical component of our nation's innovation ecosystem, and for centuries have protected the uncertain paths of breakthrough scientific innovation that have led to our world-wide economic leadership, good U.S. jobs, and a high standard of living for most Americans.
European, Japanese, and other lesser patent regimes do not have our amazing grace periods. It is American innovation's 'secret ingredient,' without which our innovation culture wouldn't "taste quite right." Israel, for example, often called the world's 'startup nation,' depends upon our patent system to maintain its economic and regional defense survival. China and India copy us because our system's grace periods produce better innovation sooner than their own systems. More than any other component of our innovation ecosystem, our nation 's 'First-to-Invent' grace periods' fluidity and flexibility, coupled with their manageability and inexpensive maintenance, have long protected American inventors from piracy and made us the premier scientific and technical power on earth.
An exaggeration? Certainly not. The grace periods enable the unpredictability and randomness of scientific advance and commercialization to develop at their own pace, to be made public in their own time, and be patented when they are ripened and ready -- rather than forcing inventors to race off to the patent office before they have the money and the finished product to do it right, as the proposed changes to the patent system would have it. Today's grace period enables inventors to customize their innovative progress though whatever is needed by way of interdisciplinary cooperation, collaboration, and the contribution of critical outside private capital.
Proper balance between research and commercialization is a matter of considerable debate in academic research circles, but most feel that it is the occasional implementations that actually convert tax-payer funded research into public use and benefit that politically justifies continued federal and state support for university research. Such research dollars are critical to the research university tech transfer mission, which often combines its internal education function with externally commercialized products that visibly benefit the American people.
Neither our universities nor our already over-burdened Patent Office can afford the added burdens of wasted and repetitive races to the filing window with the products of promising but unfinished research that would be necessitated by the proposed legislation. Neither can we as a country.
Make no mistake. In the budget battles ahead, federal and state R&D dollars will be watched more closely than ever. The Arts major staff on the Hill or in the statehouse will search for success as they try to measure accountability. The university research community's failure to fight the First-to-File system proposed in the current patent 'reform' effort will start a slide toward scientific mediocrity. Good, new American jobs and our country's economic leadership will disappear. American triumphs of modern scientific innovation will disappear from the next decade's science history text books.
If the House and Senate proposals for First-Inventor-to-File's weakened grace period become law, they will trample into memory the true but tangled path of modern scientific innovation. By instituting 'Force-to-File' procedures, they will strangle startup businesses and disrupt innovation. They will tilt the U.S. patent process towards the large market incumbents' incremental innovation, market-protecting model.
Eventually, congressional and state support for basic research will appear to be a subsidy to private sector incumbents rather a stimulus for university research, scientific progress, spin-off commercialization and real public benefit. The jobs it now produces will be globally and not locally located, and state economies will invariably decline.
So unless the leadership in research universities explains to their governors and state legislators, and their congressional delegations, how and why today's scientific innovation process really works, we as a nation will be on a sure path to technological irrelevance. They must also explain to the Arts-imbued lawyers on the Hill why extinguishing our existing grace period will harm U.S. innovation, dampen U.S. job creation, and subvert our economic superiority.
The research university system cannot survive the misguided efforts of patent 'reform' any more than the rest of our nation's integrated innovation eco-system -even if it appears they are protected by so-called carve-out provisions. Instead, the bright flame of our patent law's 200 plus year-old enablement of scientific creativity will have been extinguished for the "convenience" of multinational firms seeking "harmonization" with the innovation-deprived patent systems of Europe, Japan and China -- and exacting a price the rest of us, our children, and our children's children cannot afford to pay: second or even third-rate status as a nation.
Chris Gallagher is Policy Director of New Venture Advisors, a firm providing strategy, policy, planning, and licensing advice to early stage innovators. Kevin L. Kearns is president of the U.S. Business and Industry Council, which represents 2,000 small and mid-sized domestic American manufacturers.