Imagine your company is suddenly inundated with dozens of baseless patent infringement lawsuits. This scenario is becoming all too common as corporate America grapples with a post-COVID surge in frivolous patent claims, driven by patent trolls. The rise of these opportunistic lawsuits once again begs the question: how should we address the ongoing patent troll problem?
The consensus among patent attorneys and American businesses is clear: patent trolls are wreaking havoc on the patent system. While piecemeal efforts—like the Supreme Court’s Alice decision and changes to venue rules aimed at curbing abuses in Texas courts—have been made, they haven’t resolved the core problem. However, there is a simple, yet transformative solution buried in the original patent statute that could nearly eliminate patent trolls and restore the integrity of the U.S. patent system. It’s time to revive the requirement for patent models.
What Went Wrong: The Rise of Patent Trolls
To understand how patent trolls have undermined the system, it’s important to revisit the fundamental concept of patents. At its heart, a patent is a quid pro quo arrangement between the government and an inventor: the inventor publicly discloses their idea, and in exchange, receives exclusive rights to it for a limited time. Once that period ends, the invention becomes public property.
Consider an example: imagine you were the first to invent two-factor authentication for mobile devices. This innovation enhances security and is highly valuable. The inventor should be rewarded with patent protection, regardless of the potential financial gain, as it contributes significantly to the field. Without such protection, patents would lose their market value.
The problem arises, however, when vague and poorly defined patents are granted. Patent applications are often filled with abstract concepts, unclear flow charts, and ambiguous terminology. Patent examiners, struggling to understand these vague claims, frequently approve them simply because they don’t encounter prior art using the same elusive language. Once these patents are issued, patent trolls swoop in, filing lawsuits en masse, knowing that businesses would rather settle for $50,000 to $100,000 than engage in costly legal battles. This has been the case with several so-called two-factor authentication patents that have targeted hundreds of defendants. Even judges are limited in their ability to stop these lawsuits because the trolls hold officially granted patents and carefully craft their allegations to avoid sanctions.
A Solution: Bringing Back Patent Models
How do we fix this? One effective solution is to reintroduce a modern equivalent of the patent model requirement. But what exactly is a patent model?
In the early days of the U.S. patent system, inventors had to submit a miniature working model of their invention. These models were no larger than 12 inches square, neatly constructed, and labeled with the inventor’s name. They were a practical way for examiners to assess the feasibility of an invention and were a critical part of patent grants for nearly a century.
Why Patent Models? A Historical Perspective
The idea of patent models wasn’t new to the U.S. When the country was still composed of thirteen colonies, some allowed inventors to petition their local legislatures for exclusive rights. However, these governments were cautious, reluctant to grant monopolies based solely on abstract ideas. Inventors who provided working models found it easier to obtain patents, as their inventions were demonstrably functional.
The first U.S. Congress adopted this practice, requiring inventors to submit models with their patent applications. Thomas Jefferson, who oversaw patent matters at the time, viewed patents as part of a social contract, but he was also concerned about potential abuses. Patent models helped ensure that inventions were described adequately and served as a safeguard against the granting of excessive patent rights.
Over time, patent models became less practical. As the number of patents surged, so did the number of models, straining the capacity of the Patent Office. By the mid-19th century, the Patent Office began to advocate for the use of drawings and written descriptions instead of models, arguing that these could be more easily distributed and studied beyond the walls of the office. In 1870, the requirement for models was made optional. The final blow came in 1877, when a fire at the Patent Office destroyed most of the 114,000 models it housed. By 1880, models were only required for certain categories of inventions, such as perpetual motion machines.
The Consequences of Eliminating Models
The decision to eliminate the model requirement had far-reaching consequences. Had the requirement remained in place, the history of key industries—such as the automobile and telephone—might have unfolded quite differently.
Take the infamous Selden automobile patent, for instance. George Selden, a patent attorney, filed a broad patent for the automobile, despite never having built a working car. He delayed the patent process for 16 years, waiting for the automobile industry to become commercially viable. Selden’s patent eventually became a costly legal obstacle for pioneers like Henry Ford, who spent a significant amount of time and money fighting against it. Had Selden been required to submit a working model from the outset, much of this litigation could have been avoided.
Similarly, Alexander Graham Bell’s telephone patent might never have been granted had a model been required. Some historians suggest that Bell may have borrowed ideas from a competing patent application by Elisha Gray, filed the same day. A working model requirement would have prevented such controversies.
Modern Problems, Modern Solutions
Many critics of today’s patent system call for reform, as they believe too many vague and overly broad patents block technological progress. Reintroducing a requirement for tangible models or a modern equivalent could be the answer. This would eliminate “paper patents” and significantly reduce the ability of patent trolls—who often have no real technology or business—to profit from frivolous lawsuits.
How would this work in the modern era? The answer lies in requiring inventors to demonstrate proof of concept. Today, this could take the form of a video showing the invention in action, uploaded to the Patent Office website. For cases where video isn’t practical, such as with chemical compounds, inventors could submit data demonstrating the invention’s efficacy, just as pharmaceutical patents require efficacy data.
Software patents, a frequent target of trolls, could also benefit from this approach. Inventors would need to submit working code, demonstrating that their invention is functional.
A Path Forward
While it’s unlikely Congress will act to reintroduce patent models, the Patent Office could implement this requirement through administrative rulemaking. This could be done under the existing “enablement” requirement, ensuring that patents are granted only when an inventor has demonstrated a working invention.
By reintroducing a form of the model requirement, we can restore balance to the patent system. It will deter patent trolls, reduce frivolous litigation, and help legitimate inventors protect their innovations. The patent system is too important to allow exploitation by those who contribute nothing of value. Let’s bring back the models and shut down the patent trolls for good.
