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11 Million U.S. Patents . . . and China’s Rising

The U.S. Patent & Trademark Office recently awarded the 11 millionth U.S. patent. It went to inventors of a medical device for positioning prosthetic heart valves. Arthur Daemmrich, director of the Lemelson Center for the Study of Invention and Innovation at the Smithsonian Institution, describes some of the milestones from the first patent, granted 231 years ago.

We’ve come a long way from 1790 and that first patent on an improved method of making potash. An estimated 10,000 inventions secured private patent rights from 1790 to 1836. The 100,000th patent issued in 1870.

Invention then soared further, with 900,000 more patents granted by 1911. The pace of the progress of useful arts picked up again, and the 5 millionth patent was issued in 1991. The USPTO granted the 10 millionth patent in June 2018. And now, another million patents issued in three years.

In 1899, Punch Magazine ran a comedic conversation about the coming century. Part of it read: “‘Isn't there a clerk who can examine patents?’ ‘Quite unnecessary, Sir. Everything that can be invented has been invented.’”

Everything invented by 1900? Consider that the inventors of the 19th century, which included such greats as Edison, Bell, Goodyear, Westinghouse, Tesla, McCormick and quite a number of other notables, added about a million patented inventions.

Twentieth century inventors, starting with the Wright Brothers conquering sustained, powered, manned flight, put invention and patenting on steroids. The inventors of the American Century added another 5 million patents, give or take, in 100 years. Then in the first two decades of the 21st century, about 5 million more patents came forth.

Pretty impressive.

Yet, the past two decades have seen more self-inflicted damage to our patent system’s foundations while China has ramped up stealing our inventions and intellectual property.

The Trump administration’s PTO director Andrei Iancu, Antitrust Division head Makan Delrahim and NIST director Walter Copan made several strides to reverse course. But courts, such as the Supreme Court’s antiproperty rights ruling in Oil States v. Greene’s Energy Group, have continued to drag us in the wrong direction. And Congress has done little to undo the damage to formerly reliable, enforceable patents.

A good sign, though, is growing bipartisan recognition of the danger Chinese theft of our IP poses to America’s national and economic security. The Schumer-Young Endless Frontier effort, though not perfect, aims to improve U.S. competitiveness in cutting-edge technologies in which China works to leapfrog us and grab the innovative lead.

The Republican Study Committee has produced important policy papers on issues plaguing our patent system and threatening our innovative edge. It’s also put forward legislation to act on some of these matters.

Maintaining U.S. Tech Supremacy Through IP Protection” ties these vulnerabilities to our competitiveness from China. This paper discusses PTAB “patent death squads,” the eBay v. MercExchange barrier to enjoining infringers, Oil States’ demoting private property to a mere “public franchise,” the Google v. Oracle exception sanctioning theft of swaths of copyrighted computer code, and the Alice-Mayo framework that turns patent-eligible subject matter into the spin of a roulette wheel.

An earlier RSC backgrounder, “The Patent Trial & Appeal Board and Big Tech,” exposes how special interests have destabilized patent rights. It illustrates how Big Tech’s antipatent agenda builds the Administrative State into its plaything for wiping out issued U.S. patents through biased administrative proceedings with egregious fairness and due process failings. Read along with the latest paper, you get an indication of how weakened domestic patent rights aid and abet China’s aggressive, whole-of-society scheme.

Unless Congress acts to save Americans’ private property rights in inventions, including restoring patents' reliability and the means to enforce them, the next milestone might be subtraction of total U.S. inventions.

You may be sure that China’s patent count is skyrocketing, and it’s no longer limited to just copyist clowning.

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