This Work Is Patent Pending MAG

February 6, 2011
By she-is-forgotten BRONZE, Louisville, Colorado
she-is-forgotten BRONZE, Louisville, Colorado
2 articles 0 photos 0 comments

She was just a little trinket from the baby aisle at the grocery store, an average rubber duck, except for the blue disk on her bottom that said “HOT.” Apparently the disk changed color in hot water to warn parents when bathwater was too hot for their baby. When I bought the duck, I hardly noticed the words printed below the disk. But in the coming months and years those words would haunt me: “Patent Pending.”

Until I understood that phrase, I hadn't imagined a bath toy could represent a national affliction, a broken system that grants exclusive rights to an invention with the intent of encouraging innovation, but in reality discouraging it. That child's plaything was a pending icon of originality, a challenge-to-be for any possible infringers, a legal disaster in the making. And to think, I treated it just like any old rubber duck!

I have no qualms about giving credit where credit is due. But the United States Patent and Trademark Office is known to give credit where it isn't due, and oftentimes that costs those who should have received the credit ridiculous sums of money to defend their ownership of the idea (for example, see the 2006 NTP ­versus RIM case, which debates the ­ownership of technology used to create the BlackBerry). It's like two children both arguing they didn't steal the cookie from the cookie jar; it costs the involved parties and the mediating authority more trouble than is warranted by any dessert.

Kindergarten analogies aside, the Founding Fathers stated in the Constitution that “The Congress should have the power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Well, their intentions were good, but the offspring of their clause has evolved into a monster. Like Frankenstein's creature, the patent system's original purpose was gradually neglected until it transformed into a bitter and vengeful demon. Now the fiend raises its ugly head to terrorize would-be inventors.

A patent is by design a monopoly, but though it is intended to encourage innovation by allowing the inventor to profit from his or her idea, in practice many patents are trivial and obvious. These patents serve only to quash real innovation and productive competition.

Competition breeds improvement; companies and consumers alike suffer when there is no incentive to create products of better quality, efficiency, and functionality. What's more, vague patent claims may prevent improvement of a product by anyone other than the patent holder. This certainly serves to slow the rate of innovation. Why, if Dr. Frankenstein didn't want anyone else repeating his mistake, he should have applied for a patent for his creature.

The patent system also lends itself to any number of absurd claims, many of which are purely ­ideological and never even built or implemented by the patent holder. Consider U.S. Patent #6960975, which describes a space vehicle that defies the laws of physics, or #5443036, which details a method of exercising a cat with a laser pointer. In 2001, an Australian man patented the wheel as a “circular transportation facilitation device,” just because nobody had prior legal claim. (He'd ­better watch out when a patented time machine sends a horde of angry cavemen to sue him.)

Come to think of it, why didn't my parents stamp “Patent Pending” on my head the minute I was born and wait for the Commissioner of Patents and Trademarks to grant them the right to exclude others from making, using, offering for sale, selling, exporting, or importing me? Although I suppose if they'd patented me I would have sued for infringement before I turned 20. Or 26, considering the backlog at the patent office.

Back in the good old days, innovation came in the form of light bulbs and cotton gins, printing presses and spacecraft: inventions nobody had ever seen or heard of before, products of blood and sweat and tears, and, most of all, ideas. Useful ideas, ones that revolutionized their industries and opened people's minds to a glorious future. Well, I don't know what anti-eating face masks (#4344424), Santa Claus detectors (#5523741), and heat-detecting rubber ducks (patent number could not be found due to the sheer number of patents on rubber-duck-baby-bath-temperature-safety products) have to say about our glorious future, but I know one thing for sure: It's patent pending.

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This article has 1 comment.

. said...
on Jan. 31 2012 at 4:45 pm
Well written article, but you have some facts wrong. Patents certainly existed in the days of the cotton gin and the lightbulb. In fact, Edison secured so many patents (over a hundred, I believe) that his company, General Electric, completely monopolized the sale of utility products.


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