How the patent system could better solve our government's problems

Many citizens view the patent system as a way to protect ideas. This is true in a broad sense, so long as an inventor reduces her ideas to an actual product or process. What many people don’t know is that our patent system in America is designed to discourage inventors from sitting on their patents rather than using them.

This is particularly relevant to today’s public discussions on energy policy. As a country, we’re facing a crisis in the Gulf of Mexico due to BP’s oil spill, our dependence on foreign oil, and our general lack of viable energy alternatives for creating a substantial portion of our energy needs from renewable or carbon-neutral sources.

The Bayh-Dole Act of 1980 gives the government certain rights to patented technology maturing out of federally-funded research.  I mentioned this act in the context of a law review article published in 2008 on the viability of Americans growing their own ethanol-based fuel. Two rights reserved to the government are key:  first, if the government funds research at an institution, the government need not pay to use the intellectual property arising from such research. That is, the Bayh-Dole Act allows the government to sidestep the artificial markup for patented products that end consumers have to pay. Second, if the owner of the patented technology is not fully exploiting the technology to the benefit of society, the government may license the technology out to firms who will.

Over 7.5 million patents have been granted by our federal government. To point out a few examples, over 15,000 of these patents deal with transmission of electricity. Over 26,000 relate to wells and drilling for oil. 33,000 represent technological advancement in power plants. Nearly 64,000 address radiant (solar) energy.

The 7.5 million patents represent the collective knowledge of the best and brightest from around the world, and many of those patents were the product of federally-funded research. It seems to me that the federal government could mine some of the technology it has already paid for as a start towards creating new energy policies for our future.