Dear Elon and Vivek: An Open Letter on Patents in the Trump Administration

The Invitation

Regime change is upon on us! You two [Elon Musk and Vivek Ramaswamy] have been identified among those who will have considerable influence on policy and procedure for various government enterprise in the coming presidential administration. Hence, I write this letter in the hope it may affect your thinking as to the patent system and its current implementation in the United States. I write on behalf of a culture that has, for 200-plus years, believed a better tomorrow is made possible by the innovation of today.

Background

The Patent Act in 1790 was the third Act of Congress, ever. It was the only piece of legislation George Washington called out publicly for its passage. The author of the Act, Thomas Jefferson, was the first “patent examiner”. The premise that Madison wrote into the Constitution was simple: incentivize those with ideas and ambition that they could own and advantage themselves from those ideas. The broad concept is that private ownership of ideas, like private ownership of anything else, results in its best use for the general good. Pretty much all advances in American technology have come from this fundamental notion.

The Problem

The patent system is currently foundered. The U.S. Patent and Trademark Office (USPTO) takes away 3 out of 4 patents when their validity is challenged at the same agency that issued them! Legislative fixes are shallow and are, in any event, hostage to the distribution of money and favors to the responsible politicians. The courts, at the appeal level, are inept and unfocused. It is a mess, 25 years in the making, and undermines the Constitutional purpose of patents to the general disadvantage of the public.

The Solution

It can be fixed, but it requires focus and ongoing commitment to see the fixes through to results. The USPTO has the tools, via administrative discretion, to fix the problems relating to high invalidation rate of patents that have been previously examined and issued. Firstly, use every modern researching tool available to provide the best basis for examining and issuing patent applications in the first instance. Train examiners to use them! Innovators deserve no less than a thorough and reliable examination to create an eventually valid and enforceable patent. Punish copyists in a predictable manner with exclusion. Predatory stealing of another’s innovations creates less innovation, not more. Innovators innovate. If blocked one way, another is immediately sought. And, where none is possible, a license should be forthcoming on reasonable terms if in the public interest. Done.

The Harvest

To understand the scope of the innovation being created, I suggest you skim the first 100 pages of the USPTO’s Official Gazette. Each Tuesday of every week, all year long, the future is on display. These issuing patents represent our common hope and deeply held belief that private ownership and incentive can foster a better future across all technologies and business. It is time for focus and resolve, too long ignored, to be brought to fix the patent system and make it work for all Americans.

I am not the only source for ideas; I can and shall gladly introduce you to others with far greater insight and understanding than me. Just ask. We are all in this together; this is non-partisan and is for the greater benefit of all.