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Innovation – Regulatory Road Kill?
The 90s brought us companies such as Amazon.com, eBay, Netscape, Broadcom and AOL to name a few. We learned about web browsers, PDAs, universal email, voice over IP, DSL, broadband cable, cable telephony, Wi-Fi and TiVo, among others. The 80s brought us companies such as Dell, Compaq, Cisco, Microsoft, Qualcomm, Adobe Systems and Genentech. We discovered personal computers, cell phones, spreadsheets and genetic engineering. This decade we have Crocs and the iPod. Where has American innovation gone?
John Kao, a Harvard innovation expert, says the United States is experiencing a brain drain as foreign scientists and engineers return to their home countries for better opportunities. More alarmingly, other countries are attracting American-born scientists and engineers. Much of our venture capital industry invests its resources outside of the United States. These venture capital funds not invested abroad are often among the living dead, no longer actively investing.
Why should we care if the United States is no longer the world leader in innovation? Without innovation, our standard of living stagnates or declines. So why did we stop innovating? Let’s look at the changes since 2000 that would affect the ability of a Qualcomm, CISCO, eBay or Amazon.com to fulfill its potential today. There have been three major such changes since 2000. Sarbanes Oxley makes it much harder to go public today. Changes in patent law make it harder to secure intellectual property and easier to steal innovations. Finally, changes to stock option accounting rules make it difficult to attract talent to start-ups.
When Sarbanes Oxley was adopted, the SEC (Securities and Exchange Commission) estimated that the cost of compliance would be $91,000.00 per year for each public company. The most recent estimates of the cost of compliance are between $4.0 and $5.0 million per year for publicly traded companies. The United States has more than 18,000 public companies, which means that the United States spends approximately $80 billion a year to comply with Sarbanes Oxley.
Sarbanes Oxley was adopted in 2002 in response to corporate and accounting scandals, including those affecting Enron, Tyco International, Adelphia and WorldCom. The legislation established new or improved standards for all boards of directors, management and accounting firms of US public companies. The law contains 11 titles or sections, ranging from additional board responsibilities to criminal penalties, and requires the Securities and Exchange Commission (SEC) to implement rulings on compliance requirements under the new law.
Is the cost of this law worth its incredible price? Has Sarbanes Oxley achieved its goal of protecting investors against fraud? Sarbanes Oxley has cost the US economy at least $400 billion since its adoption. The stock market has been flat or down since its passage. Therefore, it is difficult to argue that this legislation has increased shareholder value. The banking scandals of 2008 and 2009 and the Bernie Madoff fiasco make it impossible to suggest that Sarbanes Oxley protected investors from fraud.
Sources report that 100 to 200 public companies a year, including big names such as Dunkin’ Donuts and Neiman Marcus, have chosen to buy out their shareholders and return to private ownership. Many U.S. private companies are postponing their IPOs, and more foreign companies are choosing to list on Tokyo, London, or other foreign stock exchanges rather than U.S. exchanges.
On top of these issues, Sarbanes Oxley has essentially killed off the public market as an exit strategy for tech startups, reducing investment in innovative startups. In the second quarter of 2008, there were no public offerings from venture capital-backed companies in Silicon Valley, a phenomenon not seen since 1978. At $4-5 million a year for a company goes public and complies with Sarbanes Oxley, it must have a profit of approximately 100 million dollars and a turnover of approximately 1 billion dollars. Given these astronomical hurdles to an IPO (Initial Public Offering), it’s no surprise that start-ups no longer see an IPO as a realistic exit strategy. Repeal of Sarbanes Oxley is essential unless we want to see Silicon Valley’s status as a hotbed of innovation eroded and the future invent outside of the United States.
Changes in patent laws over the past decade favor technology users over technology creators. The Supreme Court’s eBay decision denied inventors’ ability to enforce their fundamental right to prevent others from using their invention. The Supreme Court’s KSR decision changed the standard of what is patentable from an objective standard to a subjective standard. Finally, the United States Patent and Trademark Office (USPTO) has independently changed the internal standard governing inventions that receive patents. This change caused the allocation rate to drop from about 70% in 2000 to 45% in 2008. The harmonization of our patent laws with the rest of the world broke the social contract between inventors and society.
The Intellectual Property and Communication Omnibus Reform Act of 1999 requires U.S. patent applications to be published 18 months after the filing date. This law is part of an effort to harmonize US patent laws with the rest of the world. Patents are generally considered an agreement between the inventor and the company. The inventor receives a time-limited right to prevent others from using his invention and the counterpart is that the inventor discloses how to practice his invention. The publication rule is a clear violation of this social contract between the inventor and society. Under the publication rule, society benefits from the disclosure of the invention even if the inventor never receives ownership rights to his invention.
Prior to the publication rule, if an inventor felt that the scope of their invention’s claims were too narrow or inadmissible, they could withdraw their application and keep their invention a trade secret. It is easy for a competitor to craft narrow claims that offer little protection in exchange for disclosure of the invention. In other words, if the inventor did not like the offer given to him by the Patent Office, he could reject it and keep his invention secret. Even for inventions that can be reverse engineered once the invention is commercialized, it’s a better deal than the publication rule. Under the publication rule, it is easy for competitors to find the inventor’s idea on the World Wide Web and copy the invention. Without publication, a competitor must spend time and money reverse engineering an invention.
In 2006, the United States Supreme Court decided eBay Inc v. MercExchange, LLC, 547 US 388 (2006) stating that a permanent injunction should not automatically be issued in an infringement judgment. A patent is a legal right to exclude, 35 USC 154, others from making, using, selling (offering for sale) or importing the invention. It is little known that a patent does not give its holder the right to use, manufacture, sell (offer for sale) or import the invention. The Supreme Court’s eBay decision denies a patentee’s right to exclude others and substitutes damages even if the patentee prefers to assert their right to exclude.
In KSR International v. Teleflex, 550 US 398 (2007), the Supreme Court made it easier to find an invalid patent and more difficult to obtain a patent by modifying the standard of obviousness. To obtain a patent, the invention must be useful, new and non-obvious. This case overturned 20 years of case law associated with an objective test of obviousness. The Supreme Court obviously substituted a flexible subject matter test. This more flexible approach increases the uncertainty that an inventor will receive a patent and increases the risk that their patent will be declared invalid if they have to enforce their patent against an infringer. It has also increased the costs associated with obtaining a patent and applying for a patent.
Not to be outdone, the Patent and Trademark Office has launched its own assault on inventors. The allocation rate for patents fell from about 70% in 2000 to 45% in 2008. The allocation rate hovered around 62% to 72% for several decades, then began a precipitous decline around 2003.
These changes to our patent systems have been nothing short of an outright attack on the rights of innovators.
In 2005, the FASB required companies to start accounting for stock options. Startups have used stock options as a major tool to attract human talent from secure positions. Requiring expensing of stock options places a huge burden on start-ups. This burden has led start-ups to forego their use. There is no economic justification for expensing stock options because changing the number of shares in a company does not change its income statement. However, the burden of this regulation has alienated this important financial tool from start-ups and has hurt innovation in the United States.
Innovation in the United States is stagnating because of the regulatory burden we have placed on high-tech start-ups. Empirical evidence and the logical case for Sarbanes Oxley, changes in patent laws and the required burden of stock options fail. Repealing these regulatory burdens on innovators will boost the US economy.
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