USPTO Director Michelle K. Lee
“A Walk Through History: The More Things Change…”
May 9, 2015, 6 p.m., Supreme Court
Rich Inn of Court Annual Dinner
Thank you, Raj. I appreciate the kind introduction and the invitation to revisit the Inn for tonight’s dinner.I say revisit because I have pleasant memories of attending events of this Inn at the start of my patent law career, when I served as a Federal Circuit law clerk. So it’s a pleasure to be back—I won’t say how many years later! The Giles Rich Inn is an impressive organization, and one that has grown dramatically since my membership. Back then, it was the only IP Inn anywhere in our country. Today, I understand there are more than 20 IP inns in cities from New York to Chicago to Los Angeles and even one in Japan, so congratulations! That’s truly remarkable.
A lot of other things have changed since I was a member of the Inn, and they’re part of what I want to talk about tonight: and that’s history. As you can guess from Raj’s kind introduction, it’s a subject I never spent much time on in my earlier career. I was always more focused on technology and innovation than I was on history. But working at the USPTO—first as the Silicon Valley office director, then as deputy director of the agency, and now as director—has given me a whole new perspective on history and its importance to everything we do. And, of course, so has living and working in the D.C. area—where history is on display everywhere, from the National Mall to the many statues, memorials, and museums around the city and throughout the region.
The Patent and Trademark Office is no exception. Just a few weeks ago we celebrated the 225th anniversary of the First Patent Act. Now admittedly, that celebration didn’t get as much attention as the recent Civil War anniversary events in Virginia and D.C., but to those of us in IP law, and at the USPTO in particular, it was an important date worth celebrating. The Smithsonian’s American History and American Art Museums were kind enough to loan us several exquisitely crafted patent models for exhibition, the products of artisans who worked in the vicinity of the Old Patent Office from 1836 to 1870, when patent models were still required with all applications. Some of these models are still on display in our Madison Building, if you’d like to see them. While you’re there, you can visit our National Inventors Hall of Fame Museum, founded in 1973 in partnership with the nonprofit Invent Now. We’ll be recognizing and thanking a few titans of American innovation in just a few days, when we induct the 43rd class of inventors into the National Inventors Hall of Fame. And that ceremony, appropriately, will be held at the Old Patent Office, or, as it’s known today, the National Portrait Gallery.
If you visit the new Patent and Trademark Office, in Alexandria, you’ll find—just outside of the National Inventors Hall of Fame Museum—an exhibit called the “Walk Through History”; it leads you through all 225 years since the passage of the Patent Act of 1790, with a number of important events identified along the way, as well as some interesting trivia: Like the date in 1849 when an Illinois lawyer named Abraham Lincoln received a patent for a device to lift boats over shoals, which—I should add—was never manufactured. And the existence of a rival Confederate Patent Office during the Civil War. Did you know about that? I often wonder what their pendency and backlog was like.
A few days after our 225th anniversary celebration we hosted a delegation from one of our major IP5 partners—IP5 being the largest five IP offices in the world: China, Europe, Japan, South Korea, and the United States. As part of their tour, they did the Walk Through History, and the director of this partner office told me afterward how amazed he was; he had no idea how far back the history of our nation’s IP laws and office went. It was a bit of an eye-opening moment for me as well. It’s easy to forget that while our nation is still relatively young, our government and our system of laws are older than those of some of our largest trading partners, and unique in being rooted in our Constitution itself, with a “Progress Clause” that empowers Congress 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.” The Grand Bargain embodied in that clause was, and still is, a wonderful deal between thinkers, researchers, technologists, visionaries, scientists—and the rest of society. It’s a bargain that provides incentives to innovate, in exchange for dedicating those innovations to the great corpus of human knowledge, and to the benefit of all mankind in perpetuity. Without those incentives, there would be little motivation for anyone to share their new ideas with the rest of the world. And arguably, plenty of incentives not to share.
But as great as that all sounds, and as any good lawyer knows, the Constitution was not the final word on the subject; it was only the blueprint and the beginning of the American Experiment. It pointed us in the right direction, but it left a lot of important questions unanswered that Congress, the Courts, and the People have had to figure out over the course of subsequent generations. That process began immediately with the debate and passage of the Bill of Rights, but it proceeded on other fronts as well, including IP law. Only a year after the Constitution became the law of the land, the first Congress passed the Patent Act of 1790, and President Washington swiftly signed it into law. Among other things, the Patent Act of 1790 created the first Patent Board, whose three members—Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph—were called the “Commissioners for the Promotion of Useful Arts.” Congress invested these leaders with the authority to grant or refuse a patent after deciding if an invention or discovery was “sufficiently useful and important.” Jefferson reportedly took his role very seriously, often bringing patent applications home for bedtime reading—not a practice we encourage in our examiners these days, by the way. We’re all about a healthy work-life balance.
But the three Patent Board members were understandably busy with their other jobs, and over the course of three years, they granted only 57 patents. But that first Patent Act did something else as well; it helped define the subject matter of a patent as “any useful art, manufacture, engine, machine, or device, or any improvement thereon not before known or used.” Those words “any improvement thereon” are especially important; they laid the groundwork for more than two centuries of cumulative, or follow-on innovation: the process of innovations spurring further innovations, for the benefit of all.
Consider one of the most celebrated cases of cumulative innovation in recent memory: the laser. It began in 1960 with a patent for Microwave Amplification by Stimulated Emission of Radiation, or maser, issued to Charles Townes and Arthur Schawlow—distinguished members of the National Inventors Hall of Fame. Townes later wrote that the development of the maser and its successor, the laser, and their subsequent applications in science and technology, “followed no script except to hew to the nature of humans groping to understand, to explore, and to create.” Over that same period of exploration and creation, by the way, more than 55,000 laser-related patents were granted in the United States—considerably more than Secretaries Jefferson, Knox, and Randolph could have handled in their spare time.
And those same patents generated billions of dollars through licensing fees and the many laser-based products created in the lab, manufactured at home and abroad, and sold and employed for the benefit of consumers around the world. So that’s a pretty impressive track record of innovation with just one technology alone, and it’s a good example of what was going on in our country for more than two centuries after the First Patent Act went into law: Americans continually finding ways to innovate and improve on other innovations, to meet the demands of an evolving, restless, and dynamic society. And this was no less true when it came to our system of laws and government.
As you can see on that Walk Through History at our headquarters, a Second Patent Act followed quickly on the heels of the Patent Act of 1790, just 3 years later in 1793. And, by the time the Third Patent Act was passed, in 1836, more than 10,000 patents had been issued. But Congress wasn’t done with patent law. It continued to evolve. The Sherman Antitrust Act of 1890, the Patent Act of 1952, the Federal Circuit Act of 1982, and—most recently—the America Invents Act of 2011, all had a substantial impact as well. Each was proposed, debated, and passed in response to a new set of challenges, not the least of which was the often breathtaking pace of American innovation.
Now, I know I’m dating myself here, but when I graduated from law school, the Federal Circuit created by the Act of 1982 was still relatively new. Patent law was the province of a handful of specialists who practiced in patent boutiques, not general practice law firms. With a few exceptions, patents received little scrutiny from higher courts and generalist lawyers, much less the media or the public at large. But today, patents are very much in the public spotlight and the subject of discussion and debate in the media, in corporate America, in Congress, and certainly in this very building. In fact, as you know, the Supreme Court has been a bit busier than usual of late with patent cases.And while all of that may seem like something new—when judged by the brief span of our legal careers—practically speaking it’s not. It’s just the latest iteration of a long process that began with that first Patent Act of 1790—as our first Congress, the second after it and others still later, modified the patent laws to meet the needs of an evolving and innovative society.
I have no doubt that future generations will continue to do the same. In fact I’d be worried if they didn’t, because it would mean that we had stopped evolving and innovating. Whatever they do, and wherever we move along that Walk Through History at the USPTO, the Progress Clause and the Patent Act of 1790 remain the foundation and the guiding north star: of efforts that continue to this day, and will continue long after we’re gone, to find that sweet spot where our patent laws are just right. Where the Grand Bargain of the Progress Clause remains just that: a great deal for innovators and the rest of society alike. It’s awe-inspiring to think about, and it’s something I take very seriously as Director of our nation’s Patent and Trademark Office—and I know that all of you take seriously as well.
So thank you for everything you do as practitioners in this great IP system of ours, and for taking this short walk through history with me. Congratulations on a great year for your Inn, and best wishes for another one. Thank you.
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