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Guest post: An open letter to Abraham Lincoln from David Kappos

At the Fordham IP Conference in New York yesterday, David Kappos, partner at Cravath, Swaine & Moore and former director of the USPTO, read an open letter to Abraham Lincoln. Managing IP reproduces his speech from the Intellectual Property Leaders panel here

Mr Lincoln,


It is with great pleasure and privilege that I address this letter to you, and that I update you regarding the status of our national and global intellectual property systems. You were a venerable leader, even in times when doing the right thing was not the most popular thing. You were a proponent of a strong IP system and a champion of incentivising human ingenuity. Indeed, it has not been forgotten that you were the first and only US President to have been awarded a patent.

I am pleased to inform you, Mr Lincoln, that human ingenuity and innovation is flourishing here in the United States and, indeed, around the world. In the US, IP intensive industries accounted for 34% of 2010 GDP and 27% of all 2010 jobs. And in the EU IP industries accounted for 39% of 2008-2013 GDP and 26% of all 2008-2013 jobs. Here in the US, the Patent and Trademark Office has grown from its humble beginnings in 1802, to an institution with over 11,000 employees, examining more than 500,000 patent applications and issuing more than 250,000 patents each year. Staggering figures when we consider that it took over 10 years of issuing numbered patents for the USPTO to reach number 6469 in 1849, which, of course, Mr Lincoln, was yours. Aside the numbers, Mr Lincoln, our strong IP laws have created a culture of innovation which has truly allowed dreams to become reality–inventions like the electric sports car, 3D-printing, and even a tiny device designed by a small company out in California that, when placed in your cheek, can stop a headache with the flick of a switch.

Now, as we know too well Mr Lincoln, history matters and those who fail to heed its lessons are sure to repeat its mistakes. Over the past one and a half century there have been many calls to significantly curtail or even abolish our nation’s IP system. Today I regretfully inform you that the IP system is being called into question yet again. We see almost monthly legislative efforts to cut back on protection. And declarations that “these are exceptional times” and that our age is somehow different from any that came before. But, Mr Lincoln, as you know, the issues underlying these legislative efforts and declarations are not new at all.

"As you will recall, around the Civil War, there were calls to deal with ‘patent sharks’ who bought up dormant patents on agricultural tools and threatened to sue farmers. And yet, despite these calls, under your tempered leadership, our IP rights stood strong"

A significant reason for the presumed “emergency” need to alter the patent laws is the alleged proliferation of entities known as patent trolls. The term refers to companies that do not make products, and instead monetise patents by licensing or selling patents to practicing companies that manufacture products. But, Mr Lincoln, you probably know them by a different name. As you will recall, around the Civil War, there were calls to deal with “patent sharks” who bought up dormant patents on agricultural tools and threatened to sue farmers. And yet, despite these calls, under your tempered leadership, our IP rights stood strong. We could learn from your leadership, Mr Lincoln. Despite calls for curtailing or eliminating the patent system in your time, you made a strong showing of support for IP laws and innovation by hosting your second presidential inaugural ball in 1865 at the US Patent Office. You chose to set the stage for your second term in the model room of the Patent Office – surrounded by incarnations of human ingenuity. Indeed, there are many prominent inventors between your day and ours who would have qualified in the minds of some today as a troll and as such I believe you would have disagreed with using such a term.

NPEs are often linked to the proliferation of “patent wars” and held responsible for the so called “explosion” in patent litigation in recent decades. I suspect you may ask how were other “patent wars” resolved over the last one and a half century, as surely this cannot be the first. You would be correct, Mr Lincoln, that the current smart phone patent “war” is hardly the first. We saw this in your day with sewing machines and later with each pioneering leap forward in technological innovation – the incandescent light bulb, telephone, automobile, airplane, and radio were all subjects of patent wars. When taken in long-run perspective, we shouldn’t be surprised to see it occur again with cutting-edge innovation in smart phones, tablets and other digital devices. Despite the current news reports, patent litigation rates have remained relatively uniform over the past two centuries. New innovations and industries have always been associated with fierce competition and upsurges in litigation that were eventually resolved through private compromises. Today’s “patent wars” and “explosion in litigation” are hardly anomalous or cause for drama.

You would be distressed to learn, Mr Lincoln, that our nation’s current debate and proposals are largely based on rhetoric and self-interest rather than objective assessments of empirical evidence.

Effective leadership requires engaging with the facts and analysing the issues objectively – not lobbing epithets – "troll!". To steer a more principled course it is important to recognize that IP has always been controversial, and over-reaction is not called for. Facts matter. And nowhere is this more true today than in the growing and evolving global IP system.

"You would be correct, Mr Lincoln, that the current smart phone patent ‘war’ is hardly the first. We saw this in your day with sewing machines and later with each pioneering leap forward in technological innovation – the incandescent light bulb, telephone, automobile, airplane, and radio were all subjects of patent wars"

The need for a strong system, and strong leaders to champion it, has never been more dire. We need leaders to stand up – proudly – for a strong international IP system. Indeed, as you will recall Mr Lincoln, innovation was almost universally understood by our founding fathers as paramount to the success of our nation, back when it was just developing. In fact, the widespread belief in the importance of IP rights was so self-evident that little debate was held on the topic in enacting what is now known as the Intellectual Property Clause of the US Constitution. The creation of a patent system was of such importance, that our first patent law, the Patent Act of 1790, was the third law passed by Congress, just months after President Washington asked Congress to take action.

Mr Lincoln, I am reminded of your words, that: “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” Making a difference as a leader is not always easy. As you know leaders, particularly those in government, occupy a unique position in the IP system. Unlike those in private industry, research labs or academia who can freely take sides and openly praise or criticize the IP system, engaging in whatever hyperbole suits their point of view, government leaders must walk a fine line in tempering their public comments. Because, in many ways, government officials are the IP system. While there are institutions and rules and procedures that govern the system, the public officials tasked with carrying out those rules and procedures are the face of the IP system. This makes leadership challenging, as the prudent leader cannot be too positive – lest she ruin her credibility – and she cannot be too negative – else stakeholders will adopt her negativity, transferring it to the system she represents. But it is possible to make a difference. It is possible to be a difference-maker. Although it is particularly difficult when a vocal minority mounts a media attack on the system, much like it did in the 1860s with “patent sharks.” Leaders must both identify ways to make the system better and act on them.

And, whether you’re a leader in the private sector or public sector, you must engage your constituency, provide transparent data, seek their views, listen and respond. You must then strike a balance between discussion and action. Analysis paralysis is a dangerous affliction striking many leaders. It is true that as a leader you’ll almost never have all the information you’d like, and, true, there will always be a good reason to forego action. But we need IP leaders emulating you, President Lincoln; leaders who will stand up and take action. The increasingly global nature of IP systems and the need for cross-border IP tools will require just this type of leadership.

[Mr Lincoln you would be proud to hear that just last year the European Commission announced plans to modernise the EU patent system. And in 2011, the US passed the most comprehensive changes to its patent laws in over 150 years, paving the way for greater international patent harmonization. As innovators seek to tap into global markets (much the same way they tapped into the new United States market in your day), it is imperative that the international patent system provide consistent, cost-effective avenues to obtain reliable IP rights in multiple jurisdictions. The passage of the AIA, enables US and EU leaders, and those from Asia as well, to envision an IP world in which national and regional patent systems are harmonized in pursuit of creating an optimal environment for technological innovation and diffusion. Leaders of our day must extend the principles you applied, and establish a mandate to respect human ingenuity. That is the mandate of the patent system.]

I move to close this letter now, Mr Lincoln, and in so doing, I recount that our IP system is our country’s investment vehicle – a giant long-term savings plan through which we pay a little extra now for more great innovations in the future. So the question today is not much different than in your day: do we demand today’s innovations on the cheap – via a weaker patent system that risks under-incenting innovation – or do we moderate today’s consumption with investment in a strong IP system so that our children will enjoy even greater innovations? You answered this question, Mr Lincoln, in 1858, in a speech, wherein you described the three innovations, which, in the history of the world, surpassed all others – (1) the art of writing, (2) the printing press, and (3) the creation of patent laws. Mr Lincoln, you told us:

“Before [patent laws], any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; . . . and thereby added the fuel of interest to the fire of genius.”

It is a strong global IP system that incentivises – fuels – the fire of human genius. And indeed, it is this powerful incentive that has allowed our world to evolve into the amazing and technologically advanced place it is today.

Thank you, Mr Lincoln, for being a great leader in times when the right thing to do was not the popular thing to do. And thank you for championing the fuel to that fire of human genius.

Thank you, Sir, thank you.

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