Houses for Heroes and other ways to reinvent how the government deals with the 248,000 foreclosed homes it now owns

The United States government owns 248,000 homes as a result of defaults on government-backed mortgages (http://www.msnbc.msn.com/id/44375023/ns/business-us_business/).  MSNBC characterized the problem as follows:

“For sale or rent by distressed owner: 248,000 homes. That’s how many residential properties the U.S. government now has in its possession, the result of record numbers of people defaulting on government-backed mortgages. Washington is sitting on nearly a third of the nation’s 800,000 repossessed houses, making the U.S. taxpayer the largest owner of foreclosed properties. With even more homes moving toward default, Fannie Mae, Freddie Mac and the Federal Housing Administration are looking for a way to unload them without swamping the already depressed real estate market.”

In asking the question narrowly, “how to unload those homes without swamping the real estate market,” the government has been hobbled in trying to identify a solution.  In a welcome change, the government has asked Americans to tell them how to sell these homes without harming the housing market.  The problem has been difficult to solve for the standard problem solvers in the field.  Rather than approach this question as a standard problem solver – i.e. a bureaucrat, politician, or mortgage banker – I approach this question as an inventor.

Ask The Right Question:

For inventors, the critical first step is looking at the facts behind the problem we are trying to solve.  Usually – as is the case here – the underlying facts reveal a far different question than the one people have been asking.

The government never wanted to be the largest owner of foreclosed properties, but in becoming just that the government has stumbled into possession of a powerful tool to speed our economic recovery.  If the government unloads these homes at a pace barely better than “swamping the market”, it will sell them at a loss.  If the government can leverage these homes to drive economic recovery, by the time it sells them it will sell them at a profit.  The government can also use these homes to strengthen our commitment to the military without increasing the military budget.

By narrowing framing the issue as “how do we unload these properties”, the government is asking the wrong question.  The question the government should be asking is “how can we use these homes to make America (and its housing markets) prosper?”  With the question correctly framed, it becomes easy to find good answers and viable options.

“Houses for Heroes”:  Use The Housing Inventory To Ease The Return of American War Heroes Into A Poorly Performing Job Market.

The wars in Iraq and Afghanistan have seen countless heroic soldiers return to the country they served only to find they have traded their noble service for unemployment and even homelessness.  Those we trusted to protect our nation are surely the best tenants we can ask for in maintaining the homes for which the United States is now a reluctant landlord.

I propose a program whereby unemployed soldiers returning to the United States are given highly subsidized (or even free) use of a foreclosed home while they seek work for up to a year after their return, and the rent for some period of time after they find a job (a year seems to make sense) would be adjusted to make sure that their salary, after rent, was no lower than their military salary.  For those who were injured in defense of our country, the Veteran’s Administration should be given authority to extend those time periods as appropriate, in light of the impact of the injury on the ability of the veteran to work.

No child of a fallen hero should be forced to grow up homeless because of a parent’s ultimate sacrifice.  I propose that the foreclosed homes inventory be made available as free or subsidized housing for the children of those killed in defense of our country, under appropriate guidelines established by the Veteran’s Administration.

These temporary uses of the foreclosure inventory should not have a significant negative impact on housing prices.   Indeed, I would expect neighborhoods to see housing prices improve as the downward price pressure of an abandoned, foreclosed home is replaced by the stabilizing effect of a home occupied by the most trustworthy and noble of our citizens.  The program may also be used to permanently reduce inventory by making the homes available with an option to purchase.

While these uses appear at first glance to provide only an attenuated stimulus to the economy, closer consideration reveals a strong stimulus effect.  By facilitating the employment of highly trained returning soldiers, we are helping American companies latch onto years of military training and experience.  Similarly, foreclosed homes are far more likely to be found in economically hard-hit areas—precisely the places where are most promising, well trained employment candidates can make the biggest impact.  Military recruitment would also benefit from such a program. 

As a practical matter, all of these factors are far secondary to the most universal, apolitical, and intergenerational of all American values:   Expressing our gratitude for the freedoms that generations of American soldiers have risked – and too often given – their lives to protect.  We should take this unexpected, tangible opportunity to show the gratitude of our nation for past service, and extend a promise to the next generation of heroes:  When you come home, we will embrace and protect you, just as you protected us.

Unlock The Geographic Restrictions The Mortgage Crisis Has Imposed On The Ability To Move For Work:

My second recommendation addresses a critical problem impeding economic recovery:  A declining housing market keeps prevents workers from moving to take a job.  We should use the foreclosed home inventory to enable people to move to where their skills are most needed.  During the housing price boom, the labor market enjoyed strong geographic fluidity.  If an employer in Dallas wanted to hire a particular programmer who owned a home in San Jose, and that programmer saw the job as a great opportunity where his skills would be much better utilized, it was easy for the programmer to sell his home at a profit and move.  In the current housing market, the programmer would likely be underwater on his mortgage and forced to either pass up the new opportunity or walk away from his existing mortgage in order to take the job.  In either case, our nation’s prosperity suffers.  In the former case, the programmer keeps a job that is not the one he is best suited for.  In the latter case, his San Jose home will add to the inventory of foreclosed homes.  Even where a home has net equity, geographic fluidity in the labor market is impaired by the slow pace at which homes can be sold.

I propose a housing exchange program.  The government should set up a mechanism whereby companies or entrepreneurs with a bona fide need to hire an employee who lives more than fifty miles away can tap into the foreclosed home inventory to make that move happen.  There are many ways to implement such a system, including trading the old house for the foreclosed, new house or making the foreclosed, new house available to rent for free or at a reduced rate so long as the mortgage on the employee’s old house is kept current.  The mechanical details, such as adjusting the mortgage on the new house to prevent a gain or loss in net homeowner equity, are well within the skill set of those in the real estate field. 

I also recommend allowing – and encouraging – private holders of foreclosed homes to participate in this program.  Indeed, although certain regulatory changes may be required to facilitate or even compel participation by mortgage holders, the program could be extended to allow homeowners with negative equity to directly exchange homes with each other.  By improving the inventory of available homes, the reach and efficiency of the program would be greatly improved.

The government could also use this program to reduce the net size of their real estate holdings by requiring that the new (foreclosed) home being traded to the employee have a higher value than the old home being acquired by the government.  I recommend against imposing such a condition at the outset, as it would impair the amount of enhanced mobility that the program would offer to the labor market, thereby reducing the efficacy of the economy stimulus.   However, if the government were to allow private holders of foreclosed homes to participate, the private holders could impose such a condition.

Use The Homes To Stimulate Job Growth or Offset Budget Items the Government Would Otherwise Directly Fund:

The third concept provides the greatest direct cost savings, although it poses the greatest logistical difficulties.  Federal funds directly pay federal salaries and programs, and are used to subsidize numerous state salaries and programs.  I propose offsetting three kinds of federal expenses with creative use of the housing inventory.

Salary Offset and Incentives:  A powerful use of the foreclosed home inventory is to directly provide housing to government employees or those taking a job at the request of the government.  To provide concrete examples, the government has a strong interest in getting doctors to move to underserved rural communities and getting teachers to take jobs in inner cities.  By providing free or subsidized housing for at least the first year of service, such recruitment would be made much easier.  By including a portion of the housing value as salary, direct salary expenditures would be reduced.   Similarly, the need to build additional military housing and state student housing could be reduced by making available an appropriately located portion of the foreclosed housing inventory.

Commercial Office Space Replacement:  The federal and state governments, including K-12 schools and state colleges, are significant consumers of commercial office and meeting space.  The commercial real estate market is in far better shape than the residential market, and to the extent that the inventory of foreclosed homes is sold or utilized in a manner that impacts the real estate market, it is preferable for the impact to be concentrated on the commercial side.  I recommend that the government inventory of foreclosed homes be reviewed to identify properties that are appropriate to use as office or classroom space.  While the federal government can assert preemption as a way to avoid zoning restrictions, I believe that this program should be implemented in a way that complies with the local zoning laws.  Such compliance will significantly reduce the cost savings possible using this approach, but a disruptive change to the character of existing residential areas would have an unacceptably negative social and economic impact.  The foreclosed home inventory may be particularly suited for use as temporary office space.

Temporary Lodging or Hotel Cost Offset: Government employees incur significant costs for lodging while they travel.  For some employees, such as trial attorneys, lodging may be required for extended periods.  I recommend that the foreclosed property inventory be reviewed to identify homes that are appropriate to replace hotel stays of a week or longer (based on neighborhood, proximity to frequently used extended stay hotels and other factors).  Because of furnishing and janitorial considerations, such use should be limited to situations where control over the location can be assigned to a local government office.

Conclusion:

These three uses of the foreclosed home inventory should not be the end of the discussion, but the beginning.  Once the question has been reframed as “how can we use this opportunity to best help our nation”, there will be no shortage of answers.   If the government views itself as an accidental landlord, it will reflexively turn to narrow, inefficient solutions.  By looking at the foreclosed housing inventory as an accidental opportunity, we can chose from a wide array of powerful solutions.

The Senate should not just rubber stamp the House's version of patent reform

The Senate is about to vote on whether to invoke cloture with regard to H.R. 1249.  In all likelihood, that would mean that the Senate would simply end up passing the house version, which (as I argue below) is really bad for independent inventors.  I wrote my senators, Feinstein and Boxer.  I sent the letter by email and, almost anachronistically, fax.  As it turns out, the fax version is the only one they got (at least I hope they got it), since the Feinstein email address bounced and the Boxer email generated an autoreply saying that all electronic communications needed to come via the web based form.  

I will send my senators this link.  If you agree with the sentiments, please feel free to send this link to your senators as well.

***

Dear Senators Boxer and Feinstein:

I write to you as a constituent, a small business owner, and the inventor of fifty issued United States patents and hundreds of other inventions that are the subject of pending and soon to be pending patent applications (see http://shuster.com/patents).

I am an independent inventor.  I am proud that I have been able to make a living as an inventor, create jobs, and build transformative technologies, all without the resources of a big corporation – and free of the creative limitations that would accompany those corporate resources.  Unfortunately, a bill that the Senate is set to vote on threatens my ability to control my time and cash flow and properly develop my inventions prior to filing for a patent.  If that bill becomes law, the resulting uneven playing field makes it quite likely that I will end up closing my business and seeking work with one of the large corporations that the bill tilts the playing field toward.

I urge you to oppose the Leahy Smith America Invents Act in its current form.  The Senate bill, S.23, did a lot to weaken our uniquely American pro-innovation culture, but contained an enormous counter-balance:  Section 20 provided that the USPTO would retain the fees paid by inventors, allowing the USPTO to issue patents in a timely manner.  Of my 50 issued patents, two took more than nine years from filing to issuance, and seven took more than six years.  The median time between my filing the first application in a patent family and the issuance of a patent is well over four and a half years. These delays kill jobs, forcing innovators to choose between waiting half a decade for a patent to issue or launching a business without patent protection – and in either case knowing that their patent application will be published well before a patent will issue, providing a blueprint for competitors to steal their idea while the patent application languishes.

Although the switch from a first to invent system to a first to file system goes a long way toward killing the independent inventor, it was a bitter pill many of us were willing to swallow in exchange for a patent office capable of quickly acting on patent applications.  Unfortunately, the House bill has stripped out this counterweight, leaving only provisions that damage or destroy our nation’s small inventors and small businesses.  The provisions that are of particular concern are the switch to a first to file system, Section 18, and the effective reduction in patent term that results from additional incentives to re-examine issued patents.

First to File:

The change from a first to invent system to a first to file system will make every invention into a financial and time management crisis.  The nature of invention is that some inventions come from years of research while others – often the most valuable – come from an inspired moment or observation.  The second category is replete with landmark discoveries, such as Fleming’s discovery of Penicillin, Spencer’s invention of the microwave oven, Schlatter’s discovery of NutraSweet/aspartame, and Hopps’ invention of the pacemaker.  Because so many important inventions are the result of recognizing the value of an unexpected or unanticipated event, at the moment of conception the inventor is often months or years away from fully developing their invention.

With a first to invent system, an inventor can properly research and reduce their invention to practice.  The inventor is not required to file for a patent immediately, so long as they continue to diligently work on their invention and they file within a year of the invention becoming public.  By the time the inventor files for a patent, the patent application will reflect a fully developed description of the invention that others in the field can read, understand, and improve on.

By contrast, a file to file system turns a moment of inspiration into a moment of crisis.  The inventor must instantly consider the viability of the invention; must consider whether his time and financial constraints allow him to turn his full attention to getting the invention ready to file; must compare the actual and opportunity costs of filing against the benefits; and must line up appropriate resources, on an urgent and therefore more expensive basis, to assist in quickly completing development of the invention. 

I have had weeks where I conceived of multiple inventions.  In a first to invent system, such a week is a blessing.  In a first to file system, it would be a curse. As an independent inventor, I simply do not have the resources to simultaneously prepare multiple inventions in the urgent time frame that a first to file system demands. Whereas an inventor working for a major corporation might be able to call several teams of developers and patent lawyers, disclose one invention to each team, and allow them each to urgently rush to file a patent application, independent inventors are forced to pick and choose which innovations to pursue. 

Perhaps most troubling is that in such circumstances, the rational way to prioritize is to develop the inventions that are the least different from the prior art first, since they are the ones most at risk of having a subsequent inventor file first.  The inventions that contain disclosures most likely to advance science are the ones that represent the greatest technological advances over the prior art.  Those inventions are, ironically, the ones that are the lowest priority for filing in a first to file system as they are least likely be invented by a subsequent inventor who files first.

The United States stands alone in the world as the dominant source of new ideas.  It is not a coincidence that it also stands alone as the only major country with a first to invent system.

Effective Reduction In Patent Terms:

Issued patents may already be sent to re-examination based on a substantial new question of patentability.  While the patent is technically in force during re-examination, as a practical matter the patentee’s ability to license or assert it during re-examination is highly impaired.  Regardless of the impairment to the patent’s value during re-examination, the patent term continues to run.  Because of the glacial pace of patent office proceedings and proceedings before the Board of Patent Appeals and Interferences, it is entirely possible that a re-examination proceeding that ultimately results in a determination that the patent was properly issued could nonetheless cost the inventor most or all of the patent’s remaining term.

As the system now works, I expect it to take five years from filing to get a patent issued.  Once issued, even a bogus re-examination request can interfere with assertion of the patent for several additional years.

On top of these two factors impairing the creation of new businesses based on my inventions, the Act appears poised to impose a third:  Post-Grant Review.  Section 6 creates a new type of procedure that, like a re-examination, would interfere with enforcement of a patent.  Unlike traditional re-examination requests, though, a post-grant review request can be based on factors well beyond those that can be used to trigger a re-examination, including those already considered by the patent examiner or even factors that may raise “a novel or unsettled legal question”.

The public policy concern addressed by post-grant review is essentially that the patent examiner may not have had the resources or skill to identify reasons that the patent should not issue, and therefore allowed the patent to issue improperly. This concern has already been addressed in Section 8, which provides for the pre-issuance submission of prior art by any third party.

The crucial distinction between pre-issuance submission of prior art and post-grant review is that a delay in the issuance of a patent caused by the consideration of pre-issuance submissions will be offset by increase to the “patent term adjustment” while a review under the post-grant review procedures will effectively impair the patent while the patent term continues to move toward expiration.  Both procedures allow the public to submit reasons to deny the desired claims.

The delays in issuance and the slow processing of re-examinations under existing law combine to deny inventors a prompt decision on their patent application and then impair the patent after that long-delayed issuance.  Adding a new mechanism to impair the patent, triggered at a far lower threshold, deals an entirely unnecessary harm to America’s innovators.

Section 18:

Section 18 has been criticized as another bail-out for big banks.  Section 18 is that and more – it is a way to prevent small banks from challenging the hegemony of a handful of big banks.  If Section 18 were in place before the ATM was invented, and a small bank invented the ATM, Section 18 would effectively prevent that small bank from using that invention to grow large enough to become a competitor to the handful of existing large banks.

The ATM may already exist, but this is the United States, and we can be assured that sometime soon an invention of the magnitude of the ATM will be developed by an upstart small bank hoping to become an American success story.  Under the Act, though, the small bank would have to wait half a decade or more to get a patent, wade through the inevitable post-grant review proceedings, and deal with re-examination requests. 

When the upstart bank’s patent application is published, some 18 months after filing, the large banks would know exactly how to implement the small bank’s invention.  By the time the patent issued, the big banks would have fully implemented the invention, and the small bank would still be a small bank.

At this point, in any other field, the upstart company could turn to the courts for help in keeping its much larger competitors from getting away with having stolen its idea.  However, Section 18 protects big banks from competition by creating a special, simple to trigger post-grant review and relaxed standards for staying litigation.  Having already waited perhaps a decade to stop big banks from stealing its idea, the small bank would likely be denied judicial assistance for another half a decade while the special Section 18 review proceeds.

Conclusion:

As a small business owner and inventor, I suffer with the uncertainty and glacial pace of the patent process.  I manage my time and cash flow as best I can, knowing that filing for a patent is an investment that pays, in the best case scenario, half a decade later.

H.R. 1249 leaves the USPTO with continued uncertainty about its budget, and leaves inventors unable to count on the kind of prompt USPTO review that the budget provisions in S.23 would have funded. H.R. 1249 burdens the USPTO with a larger workload and the same budgetary uncertainty.

The fix for the slow and uncertain patent issuance process may have been removed from H.R. 1249, but the provisions that harm independent inventors remain.  I enjoy owning a small business, and I take great pride in contributing to America’s scientific progress.  I urge you to vote against cloture on H.R. 1249, to insist on a return to the S.23 provisions on funding, and to seek to remove the post-grant review procedure and Section 18 bank bailout provisions.

Very Truly Yours,

Gary Shuster

State of the Union Analysis, Inventor Edition

Barack Obama's 2011 State of the Union Address was great news for the inventor community. He mentioned patents and inventors as one of the reasons "America still has the largest, most prosperous economy in the world." He is right.

The analysis is found below, but the bottom line is that Barack Obama is the only President to have said the word "inventor" twice in a single State of the Union speech. He mentioned the "eureka" kind of inventor in a SOTU for the first time in 101 years. His is also, subjectively speaking, the first SOTU since Millard Fillmore's 1852 address to clearly lay out the role of patents and inventors in American economic success.

Barack Obama's speech was notable to many observers for its emphasis on the importance of innovation -- and was even mentioned as a "revenge of the nerds" moment. I did not remember a discussion of inventions or patents in any recent State of the Union (SOTU) address, and it turns out my memory was spot-on. I found the government site with copies of each SOTU from 1992 through 2011, wrote a quick program to analyze the content, and came up with these results:

The term "inventor" was used only twice between 1992 and 2011 -- both times by President Obama, and both times in 2011.

The term "patent" was used in a positive way only once -- by President Obama in 2011. The term was also used by President Bush in 2006 and 2008, but both times it was in the context of banning the patenting of humans or embryos.

The term "invent" was used only twice to discuss inventors -- both times by President Obama in 2011. "Invent" was used in the phrase "reinvent America" in 1993 and "reinvent government" in 1994, 1995 (twice), 1996, 2000, and 2011 (three times). Thomas Edison's "invention factory" was also mentioned in 1999 in the context of historical preservation. Barack Obama's sixth use of the term "invent" in 2011 discussed reinventing a company for new technology, so perhaps this should count as a third mention of inventors in the 2011 speech.

The absence of any SOTU acknowledgement of America's inventiveness between 1992 and 2010 struck me as (hopefully) anomalous. I found another source that had all of the SOTU addresses from 1790 to the present. Unfortunately, it was not quite as anomalous as it first appeared.

The term "patent" was first used in a SOTU in 1825. It was used 33 times in the 19th Century, 13 times in the 20th Century, and 3 times in the 21st Century, for a total of 49 times. I found this really surprising. Patents are tied with progress, so I expected the term's use to grow, not shrink, over time. Before Bush's mention of patents in 2006 in the context of prohibiting their issuance for human embryos, they were last mentioned in 1938 by President Roosevelt (his mention of them in that speech was quite critical, actually). The term inventor was used only 15 times in a SOTU message, 8 times in the 19th Century, 5 times in the 20th Century, and 2 times in the 21st Century.

The term patent was used 49 times in SOTU messages, as follows:

1825 (John Quincy Adams, 1 time)

1831 (Andrew Jackson, 1 time)

1845 (James Polk, 2 times)

1849 (Zachary Taylor, 1 time)

1852 (Franklin Pierce, 3 times)

1858 (James Buchanan, 1 time)

1861 (Abraham Lincoln, 2 times)

1863 (Abraham Lincoln, 1 time)

1864 (Abraham Lincoln, 1 time)

1869 (Ulysses S. Grant, 2 times)

1871 (Ulysses S. Grant, 1 time)

1873 (Ulysses S. Grant, 1 time)

1875 (Ulysses S. Grant, 1 time)

1882 (Chester A. Arthur, 1 time)

1884 (Chester A. Arthur, 1 time)

1886 (Grover Cleveland, 6 times)

1890 (Benjamin Harrison, 3 times)

1892 (Benjamin Harrison, 3 times)

1893 (Grover Cleveland, 1 time)

1903 (Theodore Roosevelt, 5 times)

1908 (Theodore Roosevelt, 1 time)

1909 (William Howard Taft, 3 times)

1910 (William Howard Taft, 2 times)

1915 (Woodrow Wilson, 1 time)

1938 (Franklin D. Roosevelt, 1 time)

2006 (George W. Bush, 1 time)

2008 (George W. Bush, 1 time)

2011 (Barack Obama, 1 time)

The term "inventor" (excluding "inventory" or "inventories") was used (or was the root of a word used) 11 times in SOTU messages, as follows:

1825 (John Quincy Adams, 2 times)

1845 (James K. Polk, 1 time)

1852 (Millard Fillmore, 1 time)

1872 (Ulysses S. Grant, 1 time)

1873 (Ulysses S. Grant, 1 time)

1886 (Grover Cleveland, 1 time)

1890 (Benjamin Harrison, 1 time)

1909 (William Howard Taft, 1 time)

2011 (Barack Obama, 2 times)

This analysis was done with automated word counting, so a phrase like "it is patently wrong claim I was the inventor of long speeches" would count in both categories, even though it does not reference the "eureka" kind of patents or inventions. Looking at the actual context narrows the results a bit (and introduces some subjectivity). The "eureka" kind of patent or invention, or the organization or authority of the patent office, was discussed in conjunction with the term "inventor" or "patent" in the following SOTU addresses:

1825 (John Quincy Adams, "Patent Office" 1 time, "inventor" 2 times discussing patent office authority)

1831 (Andrew Jackson, "patent" 1 time, discussing amending patent law)

1845 (James K. Polk, "patent" 2 times, "inventor" 1 time, discussing patent office organization)

1852 (Millard Fillmore, "patent" 3 times, including a line oddly similar to Barack Obama's 2011 message: "The inventive talent of our country is excited to the highest pitch, and the numerous applications for patents for valuable improvements distinguish this age and this people from all others. The genius of one American has enabled our commerce to move against wind and tide and that of another has annihilated distance in the transmission of intelligence." Yes, my fellow Americans, the telegraph was the internet of 1852....)

1858 (James Buchanan, "patent" 1 time advocating briefly for amendment of the patent laws)

1861 (Abraham Lincoln, "patent" 2 times, including noting that "The receipts of the Patent Office have declined in nine months about $100,000")

1869 (Ulysses S. Grant, "patent" 2 times, including noting that "During the year ending the 30th of September, 1869, the Patent Office issued 13,762 patents, and its receipts were $686,389, being $213,926 more than the expenditures.")

1872 (Ulysses S. Grant, "inventor" 1 time in the context of the international exposition, encouraging "American inventors and manufacturers [to] be ready to avail themselves of the opportunity for the presentation of their productions if encouraged by proper aid and protection")

1873 (Ulysses S. Grant, "inventor" 1 time, "patent" 1 time, stating that he authorized a representative of the patent office to secure additional protection for American inventors in Europe)

1875 (Ulysses S. Grant, "patent" 1 time, stating that "The steady growth and increase of the business of the Patent Office indicates in some measure the progress of the industrial activity of the country.")

1882 (Chester A. Arthur, "patent" 1 time in discussing an international agreement regarding patented articles)

1886 (Grover Cleveland, "patent" 5 times and "inventor" 1 time in relatively detailed discussion of the patent office)

1890 (Benjamin Harrison, "patent" 3 times discussing patent office, "inventor" 1 time honoring the inventor John Ericsson)

1903 (Theodore Roosevelt, "patent" 5 times discussing reciprocity in non-citizens obtaining patents in US and overseas)

1909 (William Howard Taft, "patent" 3 times, "inventor" 1 time in discussion of patent treaty)

1910 (William Howard Taft, "patent" 2 times, discussing IP treaties)

1938 (Franklin D. Roosevelt, "patent" 1 time, discussing patent monopolies in a negative way)

2006 (George W. Bush, "patent" 1 time, urging prohibition on patenting embryos)

2008 (George W. Bush, "patent" 1 time, urging prohibition on patenting human life elements)

2011 (Barack Obama, "patent" 1 time, "inventor" 2 times, discussing importance of innovation to America's economy and success)

Some may disagree, but I excluded the 1849 statement that agriculture statistics and research have been "paid for out of the patent fund"; the 1863, 1864 and 1871 notations that the information about patents is found in the report of the Secretary of the Interior; and a 1893 discussion of the removal of $1,000 from patent office funds for other research (seriously, a SOTU discussion of $1,000).

Adding up the actual "eureka" type patent and inventor references, we have a total of 9 mentions of "inventor" (1825, 1845, 1872, 1873, 1886, 1890, 1909, and two in 2011) and a total of 36 mentions of "patent" (1825, 1831, two in 1845, three in 1852, 1858, two in 1861, two in 1869, 1873, 1882, five in 1886, three in 1890, five in 1903, three in 1909, two in 1910, 1938, 2006, 2008, and 2011). If you are counting, that is 6 mentions of "inventor" in the 19th Century, one in the 20th Century, and two in the 21st Century. The "eureka" type of patent was mentioned 22 times in the 19th Century, 11 times in the 20th Century, and 3 times in the 21st Century.

As an intellectual property point of reference, the term "copyright" was used 22 times, and last appeared in a SOTU address in 1910. "Copyright" was used in 1852, 1881, 1884 (twice), 1885 (twice), 1886 (twice), 1890, 1892 (three times), 1893 (twice), 1901, 1905 (6 times) and 1910. The terms "trademark" and "intellectual property" have never appeared in a SOTU address. For a science and technology point of reference, the term "science" appeared 198 times (3 times in the 18th Century, 44 times in the 19th Century, 112 times in the 20th Century, and 39 times in the 21st Century). The term "innovation" appeared 37 times, 22 of them in the 21st Century and 14 of them (~38%) in Barack Obama's SOTU addresses. Barack Obama was also responsible for eight of the twelve times the term "solar" was used (George W. Bush and Jimmy Carter each used the term twice). The term "technology" was first used in a SOTU in 1906, and was used nearly as many times in the first eleven SOTUs of this century (48 times) as in the entire 20th Century (56 times).

We waited 99 years for a President to acknowledge the importance of inventors to our nation's welfare. For our country's sake, I hope we take President Obama's words to heart.

DISCLAIMER: I wrote software to automatically parse the SOTU documents, and one bad side effect of that approach is that words that got recorded oddly (misspelled, broken up with a dash in the middle, etc) would have been missed by the software. I am not a full time academic or researcher, so in addition to using software to assist in the first cut, my read of the documents was pretty perfunctory. I suspect, particularly in speeches with one legitimate mention of patents, that I may have counted the land-grant type of "patent". Overall the numbers should be pretty accurate, but somebody with more time might find a mistake here or there.

Closing, competing, "back to the future" quotes:

"The inventive talent of our country is excited to the highest pitch, and the numerous applications for patents for valuable improvements distinguish this age and this people from all others." Millard Fillmore, 1852

"No country has more successful companies, or grants more patents to inventors and entrepreneurs.... The first step in winning the future is encouraging American innovation.... What we can do -- what America does better than anyone else -- is spark the creativity and imagination of our people." Barack Obama, 2011

A new year

2011. My children will turn 10, 4, and 2. My wife and I will have been married six years. I'll turn 44 just weeks into the new year. I finish 2010 having invented 37 issued United States patents. There are more than seven others that have been indicated as allowable in some way, so I will likely cross the "more than one patent for every year I've been alive" line this year.

2010. Baby Bel learned to walk, started to talk, and became a fun playmate for her sisters. Eva made the honor roll and really came into her own. Sara learned to swim and in six months was able to do most of the 5 and 6 year old swim tasks as a 3 year old.

My weight had creeped back up, and I decided that missing part of my kids' or potential grandkids' lives was a horribly bad trade for the momentary enjoyment of french fries. I changed my diet (thanks, LiveStrong!) got my BMI down below the "obese" range (185 pounds is where that range starts for my height), and still dropping. I'd love to get to the "normal" BMI range this year, but I'm setting a realistic goal of simply seeing my weight continue to drop toward normal. For reference, 65% of Central Valley non-elderly adults are obese. It seems inconceivable to me that I'm thinner than average even now, but since every pound lost toward "normal" is statistically months of extra life expectancy, being thinner than average means nothing. Being a healthy weight is the goal.

My dad's cancer continues to scare me, but his great attitude and strong spirit continue to inspire me. Paradoxically, his cancer has made me feel closer to him than ever before. He is emotionally accessible to me and to my children and I am enjoying every day with him as a blessing. I hope so deeply that he beats his MCC cancer, but I plan to enjoy every moment I have with him regardless of the course of the disease. Many people fighting such a beastly kind of cancer might become bitter and harsh because of the unfairness of it. Thanks, dad, for showing me how to act in the face of adversity.

It was a tough year financially, so I guess I join the ranks of everybody else who had setbacks this year. I'm trying to emulate my dad's attitude and enjoy all of the things that are still good. Deal with the bad when I must, but live in the good.

I've found I missed my friends from years past a lot over the year. Lloyd Monserratt has been in my thoughts. Lloyd died several years ago from complications of bariatric surgery. I miss David Hoffman -- we email sometimes, but we live on opposite sides of the country. I miss many friends from UCLA and law school who are also separated by distance. I've reached out on Facebook, but Facebook often functions more to create the appearance of communication than actual communication. I am quite grateful that men seem able to pause a relationship, not talk for a decade, and then pick up the phone and pick up where we left off.

David Miller shot himself toward the end of the year. I've previously posted about that. The guys in my poker group who also knew him have been brought much closer in the aftermath. They were always friends of mine, but now I feel a strength of friendship that wasn't there before.

I've further developed and strengthened my friendship with Paul, and I am thankful for that.

My fellow inventor, brother, and friend Brian is always someone I'm thankful for. Sure, we've come up with some really crazy patent ideas that we laughed at the next morning, but even the dumb stuff is fun with Brian. He may be quirky like I am (inventors are quirky), but he also has the kindest and fairest heart of anybody I know.

My other brother, Michael, together with his wife Leanna, brought two wonderful cousins into my kids' lives (and my life). We so enjoyed seeing all of the kids play together this year.

I am thankful also for what many people would consider the strangest of all relationships -- a close friendship between my current and former wives. They call each other just to talk, they work closely on raising my 9 year old, and they genuinely like each other. Blended families are never easy, but they can be fun, happy and healthy if the adults act like adults and actually like each other. I am so grateful that we have such a situation. My first wife plans to remarry this year, and I am very hopeful that her new husband will make my daughter's good situation even better. I hope to get to know her new husband well, despite the golfer (him)/non-golfer (me) disparity.

My wife and I have worked very hard to keep our marriage healthy and happy, and my good feelings about that are such that I don't think there is a word in the English language to really capture it. Happy-Grateful-Family-Close-Smile-Work-Reward-Yay-alicious?

It goes without saying that I am more thankful for my children than ever.

I've tried hard this year to strengthen my relationship with my in-laws. I am (as is obvious to anybody who knows me) pretty quirky at times, and I think that put a lot of strain on things. I think things with them are now pretty healthy, and I'm going to continue to work on making them feel as welcome in my life as my own parents do. I wish I lived in the same city as my brother-in-law. He, his wife, and their son are all wonderful, engaging people and I am so hopeful that I can get closer to them.

This year I revisited often the decision to not work at a law firm, with the 80 hour workweeks and enormous paychecks and bonuses. Each time I think about it, though, I realize that I've given up an incredible amount of money, but essentially paid for the ability to know my children and interact with my wife. It is still worth it. And more.

My former classmate continues to be President of the United States. Having a classmate do THAT is enough to make anybody wonder if they're working to their full potential. But the same logic applies -- in my old age, the worst regret I can imagine is that I didn't know my children. I will not have that regret, and all other regrets pale beside it.

I've become less trusting this year. I've become older. I've become more comfortable setting appropriate limits for my kids. I'm looking forward to finally getting some vacation time alone with my wife (nursing babies is an awesome way to raise happy kids, but doesn't make for easy travel away from the babies). I'm looking forward to vacations with the kids. I'm looking forward to going SCUBA diving with Eva (my first wife and current wife both don't like SCUBA -- Eva's psyched about it!). I'm looking forward to inventing more things, although I'm hoping to expand my area of work to include different art areas.

Mostly, I'm looking forward to time with my family, to building my friendships, and to trying to emulate my dad's "enjoy the good" attitude.

I pray that everyone gets or remains healthy and happy this year, but as I sit here today, with a wonderful wife, wonderful children, wonderful parents and brothers, and good friends, I consider myself a very lucky man.

Invent like a five year old

I came across this article and realized that it was also great advice for inventors. They make five points. I use their headlines, but fill in the context myself. I strongly recommend reading the original if you are interested in photography.

1. Relax

Your creativity is going to tank if you are worrying about a bunch of unrelated matters. You want to think about the invention, worrying appropriately about the challenges the invention might face. Constantly worrying about something else will derail your creative process.

2. Get Curious

Kids don't know much, but their curiosity makes up for it. Imagine you normally work on data compression but in this case, you're working on minimizing data size for a nano-sized medical probe. Think like a kid "dude, check me out, I'm a doctor". "Cool, I get to play with this tiny robot". Enjoy the excitement about stepping into these roles, because it is the excitement decoupled from the practical concern (i.e. "is this too big a longshot to work?) that permits your best creative work.

3. Live In The Moment

From the original post: 'There’s an old Buddhist proverb: “Tomorrow is promised to no man.” Children tend not to ponder death or the future or the past or similar concepts as often as adults do. Kids live in the moment. They are a stream of consciousness. They aren’t concerned with much more than right now. This lets them more freely explore what’s in front of them without excess baggage.'

This was said quite well. Live in the moment. Remember, a patent is an exercise in writing future science books. Your invention, your writing, is an audition for the very small group of writings that we require all children to study. The field of "important writings" is a very crowded one, and the best way to get in is to not care if you get in. Instead, invent the best device you can. Flow with a stream of consciousness. Imagine, as you develop, that the hard and fast rules are actually flexible if done right. In order words, the fantasy and "everything is do-able" attitude of children is shared by many successful inventors.

4. Experiment

Experiment. Don't hurt anybody, but otherwise, no nuts. If it doesn't work, you don't want to file on it. More times than not, liberally experimenting strengthens your invention and inventive process.

5. Be Generous

Involve others who know the field. They may triple the value of the patent while getting maybe 50%, perhaps less.

Quick post on job creation and tax cuts for the rich

It is incredibly frustrating that everybody seems to accept, at face value, the idea that tax cuts for those earning over $250,000 per year will cause some job creation. Sure, politicians argue over the efficiency with which those dollars, borrowed from China, will create jobs. Sure, politicians frequently point out that poor families will likely spend 100% of any tax benefits on the precise items that spur demand for jobs. But the core of the Republican argument -- that letting the ultra-wealthy keep more of the dollars they earn will cause them to create massive employment for others -- is just false.

Let's start with a basic truth: The current tax rate on the money spent creating jobs is zero. Not 35% or 33% or 25%, but ZERO. Just for fun, lets use an example that elicits word-play: Steve Jobs. Steve runs Apple computers. Now lets imagine some scenarios. First scenario: Steve's tax rate rises dramatically on January 1. Heck, since we're just illustrating a point, lets make it rise to Eisenhower-like levels, maybe 90%. Now imagine Apple is sitting on a $2 billion pile of cash and wants to know whether they should re-invest it (like by hiring employees and building things) or take it out as profit. If they do nothing, the profit gets taxed at the corporate level, so that isn't a likely action. If they say "screw it, It is my money" and take it out as bonuses, salaries and incentive payments, they end up having that money decimated (literally, reduced by a power of ten). So the $2 billion they had in Apple goes $200 million to the management or stockholders, and the other $1.8 billion goes to pay down the national debt.

If you are trying to remain successful, it would be crazy to take such a deal To give up $2.0 billion in capital that could grow the company and receive in exchange $200 million. Nobody rational would take this deal. Instead, they would look at the situation and say "If I choose to cash out, I get ten cents on the dollar. If I use the money to grow the business, I can deduct those costs, so I end up with the full $2 billion to hire people, build data centers, construct devices, and otherwise make my business grow. See how raising the tax rate creates jobs?

Now imagine that this high-tax scenerio is replaced with a law tax sceario where the top rate for the wealthy is 10%. Looking at the same question of "do we invest $2 billion in growth, or just take it and keep it ourselves", the answer is as predicable as it is an indictment of our lax attitude toward fact-checking basic assumptions: If the top rate were dropped to 10%, Steve Jobs would look at the $2 billion and see that he can pocket $1.8 billion after tax of $200 million. He may consider whether to reinvest his $2 billion in the company, but he doesn't face the tough choice of having to pay significant taxes when he takes money out of the job creating company -- in his case, Apple computer.

Once he pays a $200 million tax bill that frees the $1.8 billion to use as he pleases, will he create jobs with that money? First off, people don't want to pay taxes on money they are just going to use to reinvest in other business, and normally find a way to get the full amount over tax free (as by a merger or similar move). No, even when low rates create strong incentives to pull profits off the table, rather than reinvest them in job creation, those who want to reinvest will do so for the smaller, but still important benefits of the zero tax rate on invested money.

In the interest of completeness, even where it runs counter to my point, I note that personal assistants, maids, nannys, limo drivers, and others who provide services for the personal (and not professional) needs of the ultra-wealthy may see some job benefits. But it is disingenuous to say that the creation of jobs to cater to the personal needs of the uber-rich somehow counts as the kind of general economic recovery job growth that this nation needs. Really, a tax-reduction-stimulus plan primarily aimed to get wealthy limo drivers? Kind of off base.

We need instead to focus on the real. The real is that poor people don't argue over whether they should hedge their foodstamps against inflation: They spend them. The unemployed don't balance the benefits of investing in the oil and gas sector against the textiles sector -- they balance their gas bill against their need to clothe their families. And all of those dollars get spent.

If we want to directly incentivize job creation, we need to focus on that which creates jobs -- consumers wanting things.

I hope I'm wrong, because if it really is this simple, it means the Democrats are about to sign over the keys to the kingdom to pepole who will plunder it and leave it worse for the experience. Any economists ready to clarify?

My dad's blog

My dad has a rare form of cancer. His blog, found at http://docshu-mybattlewithmerkelcellcancer.blogspot.com/, is a personal and poignant description of what he is going through. It will doubtless be very helpful to others with Merkel Cell Carcinoma, and it is a brave example of how sharing your personal medical situation can be empowering.

When I started at Harvard Law School, they told all incoming students a story that I've found applies in a lot of situations (not including law school, for which the story was wildly inappropriate). Two people are sleeping in a tent in the woods. They awaken to the sound of a bear crashing through the forest toward their tent. One person starts to put on his shoes. The other says "why would you possibly put on your shoes -- there is no way you can outrun a bear." The response is "I don't need to outrun the bear. I just need to outrun you."

My dad just needs to outrun the Merkel Cell carcinoma. He doesn't need to defeat the bear, just to keep the bear in his rearview mirror. Of course, I prefer a complete defeat of the bear.

I hope, if I ever face a similar health crisis, that I can keep a good sense of perspective, and treat each new day as a gift to be opened, explored, and cherished. Thanks, dad, for providing a poignant example of how to outrun the bear and enjoy the scenery during the run. Your family is right there by your side every step of the way.