Dear Mr. Trump:
Here’s a surefire way to jump-start the economy and put people to work: Help inventors convert their ideas into reality, get patents, and make and sell their new improved products.
1. Help inventors convert ideas into reality
The pent-up creativity in this country is bigger than the waters held by the Hoover dam. Invention and entrepreneurship did not die with Thomas Edison and Henry Ford.
As a patent attorney, I field calls every day from people who say, “I have an idea.” (In the same breath, they ask, “How much does a patent cost?”—more on that, below.)
What inventors don’t understand is this: It takes more than an idea to get a patent. They must make an invention, which means reducing the idea to practice, either by building a working prototype or by writing up their idea in sufficient detail to enable a skilled person to put it into practice.
They’re not “there” (with invention or skill to complete it) yet. Today’s Americans didn’t grow up on farms; they don’t fix cars; they’ve never been inside a machine shop. Many lack the technical, practical skills needed to turn ideas into reality. Engineers are all too rare here, and that profession, along with manufacturing, is largely in the hands of multinational companies. That critical, high-paying work is often off-shored, yes, to India, China, Japan and Eastern Europe.
a. The need for engineers and an Inventor Help Center
This country doesn’t produce enough engineers or skilled craft workers. Increase those numbers, Mr. Trump, and put them to work converting ideas into reality.
Please, Mr. Trump, establish a new “Inventor Help Center” in the Small Business Administration (SBA). That agency should do more than push business plans and process loan requests.
In a search for “inventor help center,” the SBA does not show up on the first page of results. Only the U.S. Patent and Trademark Office, with its Inventors Assistance Center, is ranked higher than so-called invention promotion firms.
The Patent Office, Sir, does not help inventors convert their ideas into reality. At best, it issues patents on thoroughly disclosed inventions. Even then, the applicant needs patience and persistence to endure the protracted process of patent prosecution.
A real Inventor Help Center, when it’s up and running, will guide inventors to know when they’re ready, and when they’re not, to proceed with a real patent application (not just a provisional, which is at best a placeholder, and all too often a disappointment as a security blanket).
Better yet, Mr. Trump, staff the new help center with technical people—they don’t all have to be engineers—some might be skilled in crafts or coding—who can help people turn their ideas into reality. A few of those people should be patent attorneys, but invention comes before patenting, and invention is the province of engineers and others skilled in applying technology. In this way, you will increase training and employment for engineers and other technically skilled people and create new business opportunities for an even larger part of the population.
Eighty percent (80%) of new jobs come from new small businesses, according to a recent study by the Kauffman Foundation. See “The Entrepreneurial Way to 4% Growth,” WSJ A21 (Nov. 16, 2016) (by Carl J. Schramm, professor at Syracuse). Jobs in manufacturing and technology—especially those based on patents, with the opportunity for market leadership, revenues, and profits—pay better than retail service jobs, and they position the country better for international competition.
2. Help inventors get patents
Some people will tell you, Mr. Trump, that patents are the problem. That’s wrong-headed.
a. Appoint a pro-patent Director of the Patent Office
One of your first appointments, Sir, just one level below your Cabinet, will be the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO). (Try finding room for that title on a business card!) Please appoint a pro-inventor, which is to say pro-patent, person to that important office.
By the way, the Patent Office has more than 12,000 employees and an annual budget of over $3 billion. I’m not asking you, Mr. Trump, to cut that budget, which is fully funded from user fees. I’m just asking you to make it more effective for the inventors, startups, and large entities that make our economy hum.
b. History of the successful U.S. patent system
We can gain many useful insights for today from the history of our nation and the successes of your predecessors.
Patents were written into the Constitution by the Founding Fathers, as you know, to help this tottering nation compete against the dominant manufacturing power (then England, now another nation).
President George Washington personally implored Congress to pass the Patent Act of 1790. Congress granted his wish to the everlasting good of this nation and the world. President Washington and his successors personally signed every U.S. patent issued between 1790 and 1836. (I have a few of the originals mounted on the walls of my offices.)
President Andrew Jackson, the populist to whom you are often compared, signed hundreds of U.S. patents, and he took a personal interest in the design and building of the then-new Patent Office (which now houses the National Portrait Gallery).
President Abraham Lincoln got it right when he said that patents add the “fuel of interest” to the “fire of genius.” You understand this better than anyone, Mr. Trump: You’re a businessman. Business exists to make a profit. Inventors invent more prolifically, and contribute to the advance of progress more willingly, when they have reason to hope for gain. (Mr. Lincoln, before he was elected to the nation’s highest office, was a patentee himself.)
c. The Patent Office fails inventors
The Patent Office may be well-meaning, but all too often, patent applications are rejected, especially the do-it-yourself kind. (In Latin, that’s pro se, but “rejected” is understood in every language.)
Ninety percent (90%) of all patent applications, regardless of merit, are rejected on the first round. The Patent Office calls that “quality.” An Office action with a little logic and a lot of boilerplate tells the applicant that a prompt response is necessary to avoid abandonment. Pro se inventors don’t know how to respond. They don’t have enough detail in their patent applications to maneuver, and they’re prohibited by law from adding “new matter.” They didn’t hire an attorney to do it right the first time (still no guarantee), and now they can’t remedy their shortcomings.
Half of all patent applications are rejected not once but twice. A final Office action tells applicants to go away, or to pay more money for continued examination, or to take an appeal. The inventors go away, all right, and they go away mad. And the Patent Office looks at the progress it has impeded, and it describes the blockage as “quality” examination.
This isn’t entirely new: The Wright brothers had trouble getting their patent through. The patent examiner finally told them to hire a patent attorney. And they only patented a glider. In the end, their competitor Glenn Curtiss took over the market, and in the ensuing tussle, the Government stepped in and imposed a settlement to make sure it could get the airplanes it needed.
Returning to the inventor’s question as posed above, how much does a patent cost? When the inventor is “ready for patent,” it will cost them several thousand dollars in legal fees and costs to prepare and file a thorough patent application. It will cost half as much again to see the patent through to issuance.
It now takes about two and a half years, on average, before a patent issues or the applicant gives up, whichever comes first. The Patent Office counts it a success when inventors give up on worthy patent applications. That is wrong.
Most new businesses lack the funds, the counsel, and the time needed to pursue a patent successfully. When they make the effort and incur the cost to file patent applications on meritorious inventions, fully disclosed with well-drawn claims, the Patent Office should issue patents to them promptly and without delay.
Abraham Lincoln’s patent was issued to him two months after he filed his application in 1849. The Patent Office didn’t delay because he had a typo in the title (“bouying”) on his drawings.
The new Director of the U.S. Patent and Trademark Office (and Under Secretary of Commerce), who you will appoint, should make new efforts to make sure that worthy patents are granted quickly.
d. Invent, patent, sell (in that order)
It is commonly thought that the main reason patent applicants fail is because someone else has already made the invention. Not true.
The main obstacle that stands in the way of patent grant is failure to complete the invention. Most inventors lack the knowledge and objectivity needed to determine whether they are “ready for patent.” Laypersons think an idea is enough. Engineers think they need to perfect rocket science. In the Goldilocks School of Patents, the former file patent applications too soon, the latter, often too late or never.
The surest way not to get a patent is failure to file a patent application, and, sadly, the greater the skill of the inventor, the more they underestimate and fail to protect their own inventions.
Pro se patent applicants—those who are starting up businesses without much counsel, funds, or time—are especially guilty of failure to write up their patent applications with sufficient detail and foresight. (That’s also a common deficiency in patent applications prepared and filed by large entities.)
The protracted nature of patent examination, characterized by repeated rejections, punctuated with long silences, is the final death knell for inventors who lack funds, counsel, and the luxury of time to see a patent through to grant.
As presently structured, the Patent Office doesn’t do enough to help applicants. And pro bono services don’t come close to satisfying the vast needs of inventors.
The commoditization of patent applications makes it hard for attorneys and agents to survive even when clients are able to pay. There is only so much that a patent attorney in private practice can do to answer the questions of would-be patent applicants who call with ideas—not inventions—and no money. Many patent law firms have failed in recent years for lack of qualified, paying clients.
In my firm, we have fielded thousands of “independent inventor” calls, at great cost to ourselves, and most people are unprepared to engage, for inability to complete their inventions and for lack of capital. Where are these people to turn, Mr. Trump? They want to start businesses, and with a little help from the Government, they will do so. And some will succeed, too, to the benefit of themselves, their families, their communities, and the nation.
e. Inventor resources are needed
Here’s what’s needed. When a real Inventor Help Center (as outlined in part 1, above) is put into operation, it should be tasked with vetting new ideas.
For those inventions judged ready and worthy, the Center should refer the inventors to a panel of patent agents and attorneys who will agree to accept below-market payment subsidized by the Government.
Increased invention, patent success, and entrepreneurship will generate desirable 4% growth and create jobs. See “The Entrepreneurial Way,” WSJ A21 (11/16/16). The rising tide will lift many vessels, including the ship of state.
The Chinese government, Mr. Trump, pays Chinese companies to file patent applications. You can put Americans on equal footing.
3. Help inventors make and sell their new products
Most patented inventions are commercial failures—most are impractical. But 1 in 10 will make a lot of money, and for those people, new business startups and patents can have legs. Positive assistance from the Government would help; removal of obstacles and needless regulations would be a good start.
America’s hopes are fixed on you, Mr. Trump. You have been asked to “fix the business climate so a million Americans a year can start companies.” See “The Entrepreneurial Way,” cited above. Many startups, of course, are based on new, improved technology.
Who will succeed? Mostly it’s people who are already working in their fields. They know what customers need and want. They know the state of the art and its deficiencies. And they know how to make the better mousetrap that’s needed. They proceed with inventions that are in their wheelhouse. That’s what they patent and make and sell for profit. See The 4 W’s of Patent.
Inventors need your help, Mr. Trump, to turn their ideas into reality, to get patents, and to make and sell the new improved products.
Here’s how you can help, Sir:
- Establish, fund, and staff a real Inventor Help Center in the SBA;
- Speed the grant of worthy patents for inventors, starting by appointing a pro-inventor Director of the Patent Office; and
- Assist inventors and entrepreneurs in business startups, beginning by eliminating obstacles.
Help inventors, Mr. Trump, and you’ll go a long way in fulfilling your promise to make this country great.