The CP silos innovation and accelerates the shift to trade secrets protection – that kills startups

8. Mr. Jones’s testimony included proposed alternative approaches to addressing concerns with the state of Section 101. He proposed the two possible alternative approaches: (1) “[] a narrow solution that is targeted specifically and exclusively at any areas of technology for which the current jurisprudence has created significant and empirically demonstrable impediments to obtaining patent protection to the extent that such impediments can be shown to have resulted in clearly insufficient levels of R&D investment.”; (2) “a broader legislative solution that tethers patentability to its underlying policy purpose by explicitly limiting the availability of patent protection to only those inventions that embody an advance in technology.” What are your views on these proposals?

RESPONSE TO QUESTION 8: Mr. Jones’s proposals would not solve the problems created by the Supreme Court’s patent eligibility jurisprudence, but rather would put America even further behind in global technological leadership. The first proposal would necessarily make the United States lag behind other countries—it calls for patent eligibility to expand based on already-proven success. Given the delay between breakthrough ideas and proof of commercial success, by the time a new technology is empirically proven to be “worthy” of patent protection under Mr. Jones’s proposal, it would presumably already be produced somewhere else. Alternatively, companies might have already turned to trade secret protection in these new areas, and there would not necessarily be any need for them to embrace patent protection even if it subsequently became available. Under this scenario, the public would lose the benefit of patent disclosures, impeding further research and development and leading to silos of advances in technology. This model of innovation also tends to favor bigger, more established companies that can use their internal silos of knowledge, to the disadvantage of startups and small businesses—normally the primary drivers of disruptive innovation in our economy.

The second proposal presupposes that policymakers—or indeed anyone—can foresee what is going to be an “advance” in technology that merits protection. Innovation has continually shown itself to be unpredictable, which is why innovators are celebrated and often considered unconventional revolutionaries.