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“We were all sitting around talking about the neatest inventions we’d seen as patent lawyers,” says Kilpatrick Townsend & Stockton partner Darin Gibby, “and we all started noticing that in the last few years, we really hadn’t seen anything … groundbreaking.”
Gibby couldn’t get the thought out of his head and decided to do a little research. After two years of digging, he found he had enough for a book. Published last winter by Morgan James Publishing, Why Has America Stopped Inventing? takes readers back to 1790, when the first patent act was enacted and Thomas Jefferson was in charge of overseeing patent applications.
“I ran the numbers of issued patents versus the population of the United States,” Gibby says. “It turns out that 150 years ago, on a per capita basis, Americans invented more than twice what they do now. That was the shocking fact to me. It’s hard to believe. We think of ourselves now as being this really inventive generation, but it’s simply not true.
“The inventors in the 19th century put their heart and soul into everything,” Gibby continues. “And the reason why so many people invented then versus now is they had a huge incentive. When they came up with ideas, they could turn their ideas into a profit, I wouldn’t say easily, but with a lot more ease than we do today.”
In the 21st century, when potential clients pitch their ideas, Gibby says the conversation usually ends when he starts talking costs. “If somebody came into my office and had an idea and wanted to protect that idea, I would tell them, ‘It’ll probably take you five to seven years and $30,000 to get a patent to protect your idea,’” he says. ‘”And if somebody copies your idea, you’d better plan on $2 to $5 million to stop them.’ It pretty much stifles any innovation by smaller or midsize inventors.”
Often, the inventors themselves have unrealistic expectations, Gibby says, noting that many people expect to become instant millionaires. In reality, if someone spends a year creating a product and sells it to a company, it’s more reasonable to expect nothing significantly more than compensation for the time it took to work on the invention.
“Since 1836,” he says, “when they put this patent statute in place, all of these layers have been added on. They’ve done it in an effort to make the system more fair, but in reality all it’s done is made it more expensive.”
Hopeful inventors throwing in the towel isn’t always the outcome, Gibby says. What he loves most about the practice is when he can help a client make it big—something that’s happened with Paul Turner, who invented RockShox and other mountain bike inventions. “I have several clients who have done well,” he says. “I’ve stuck by them and they’ve stuck by me and it’s really fun to see that happen.”
He just wants to see it happen more. He feels the country needs to see it more. “America used to be a lot greater than it is,” he says. “But we can return to what we had. … You look, for example, at a solution to our energy problem and a substitute for oil or fossil fuels: You need a lot of people trying to address that problem. But in order to do that, you need people who know that if they come up with an idea, if they put up the investment—because this is their own savings they’re using—that they’re going to be rewarded for it. That feeling just isn’t out there.”
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