The life of an American patent examiner is a harried one. More than a million applications are currently pending, and over a thousand more are added to the pile each day. The result is that it now takes an average of two to three years for an inventor to secure a patent. Inundated examiners can spend only about 17 hours judging the merits of each application, scarcely enough time to comprehend every facet of a new solid-state diode, synthetic resin, or surgical prosthesis. Yet unsympathetic critics vilify examiners for awarding patents too easily and thus doing the bidding of “patent trolls”—cunning operators who rack up patents solely in order to sue future infringers.
Congress is aware of the patent system’s flaws. Yet the reforms being bandied about Capitol Hill, such as increasing filing fees in order to hire more examiners, are insufficient. There is a quick, sure way to fix at least part of the broken system, a method the office used in the distant past: the patent model requirement.
Today’s patent applications are entirely two-dimensional affairs, consisting solely of written descriptions and intricate diagrams. But for most of the first century of its existence, the US Patent and Trademark Office required applicants to submit small models of their inventions. Some of these models were fully functional prototypes, while others displayed just a few moving parts that demonstrated how the finished product would differ from its predecessors. The models were essential because the young nation’s jurists weren’t educated enough to understand highly technical documents; when a dispute arose between inventors, judges could compare their two models rather than struggle to comprehend the staid prose of engineers.
But the courts’ technical literacy improved over time, and the model requirement was dropped in 1880. Burdened by storage costs, the USPTO eventually sold off more than 100,000 patent models—prototypical carriage flap fasteners, portable fireplaces, and other quaint devices that are now eBay staples.
The abolition of the model requirement was initially a boon to backyard inventors, who often lacked the capital to build detailed mock-ups of their visions. But as America’s population of skilled engineers has exploded, the patent system’s low barrier to entry has become its fatal flaw. The USPTO received 520,277 applications in 2010, a figure up nearly 500 percent since 1970. Countless inventions of dubious value or debatable novelty slip through this overwhelmed system, leading to endless litigation that has become a serious drag on American industry. “The requirements to patent have become, in my humble view, a joke,” says Mario Biagioli, a history-of-science professor at Harvard University.
The USPTO could instantly slash the number of applications by compelling inventors to submit working models whenever feasible. The most abstract inventions would be exempt, of course, but these constitute a small minority of applications; business models, for example, made up about 2 percent of the patents issued last year, and drug compositions were roughly 3 percent. The bulk of inventors would have to come up with three-dimensional examples of how their creations would look and function. Have a great idea for a longer-lasting semiconductor? A sturdier toxic-waste container? A safer lawn dart? Don’t just submit a diagram; make a model the examiner can touch. Perhaps that requirement would have been draconian in decades past, when creating models from complex designs was prohibitively expensive. But rapid-prototyping tools now make it possible for anyone to produce a high-quality mock-up, typically by hiring a service that specializes in such technology. Building a resin model, for instance, using a 3-D printer now costs around $4 per cubic inch—peanuts compared with the tens of thousands that the average patent applicant can expect to spend on legal and administrative fees. Architects and engineers wouldn’t dream of vying for a major project without submitting detailed models; why should inventors feel any different as they prepare to approach the USPTO?
The models are also a physical manifestation of something else: The inventor’s organizational chops and ability to execute their ideas in the real world. And that’s an important talent for the system to reward, since mere ideas are, for lack of a more fitting clichè9, a dime a dozen. The USPTO should reserve its precious protection for inventors who are not just creative thinkers but who also know how to seek the right partners, delegate authority, and tweak their creations in response to user feedback. Reinstituting the model requirement would go a long way toward favoring innovators who know how to get things done rather than simply dream.
During its heyday, the MIT Media Lab was famously guided by the rough-and-tumble motto “Demo or die!” It’s time for the American patent system to make that axiom its own.