The entire premise of an intellectual property system is that an individual will give up some of her rights (i.e., the right to keep the innovation secret) in exchange for government recognition of the right to enforce a property right. Of course, society will benefit in multiple ways. In the near term society benefits through diffusion of the innovation by way of publication of the invention in a patent, and if the product or service is commercially desirable society reaps the rewards from availability of the technological advance, as well as jobs and the associated economic advantages. In the long term, after the patent expires, anyone will be able to freely use the innovation and all obvious variations of the innovation. With many patents lasting as little as 4 years, others only 8 years and only relatively few of the most commercially valuable lasting the full patent term, this is a great bargain for society.
Indeed, more than 95% of the medicines identified by the World Health Organization as being “essential medicines” are off-patent. These once patented medicines are now forever free to be used without the need to pay any fee or tribute to the innovator. In addition to allowing others to stand on the shoulders of innovators that have come before, once a patent expires society reaps the benefit without any further payment or tribute forever.
Over the past 12 years, starting with eBay v. MercExhange, where the Supreme Court unceremoniously did away with the presumptive right to a permanent injunction when a patent owner successfully prevails against an infringer in litigation, there has been such erosion in the patent right. The patent right granted by the federal government is ostensibly a right to exclude others from making, using, selling and importing, but if you have no right to a permanent injunction upon demonstrating that the patent has been confirmed valid and the defendant did infringe, exactly how much of an exclusive right is a patent any more?
Add to this the fact that title to a patent never quiets and can be challenged at any point during the enforceable period of the patent, and it is difficult if not impossible to actually consider a patent a property right at all. Never mind that the law – 35 U.S.C. 261 – actually says that patents have the attributes of property. If there is no actual right to exclude and the right can be taken away at any time and even after it has been successfully defended in multiple different forums, how can it be a property right? Calling a patent a property right given the development of U.S. patent law is completely and totally disingenuous, and that is being kind.
The general term for a patent is 20 years starting from the filing date of a U.S. patent application. There are many different rules governing patent term, and maintenance fees need to be paid to keep a patent for the full term, which is generally not done for the majority of patents, but as a general rule patents last 20 years from the filing date. Some, perhaps much, of that time is wasted because of the Patent Office reviewing the application, which in at least some cases will be added back onto the patent. Generally speaking, even if all maintenance fees are paid the longest useful life of a patent is 17 years, which will be enjoyed by very few patents. For many patents the term is much less, falling into the public domain after only 4 years for failure to make the first maintenance fee payment, or 8 years for failure to make the second maintenance fee payment. Even pharmaceuticals enjoy a short-lived patent because of so much time being used up in FDA approval processes.
The brief duration of the patent term is why a patent is considered a wasting asset. Today, given the erosion of the patent rights over the last 12 years, one has to wonder whether the brief patent term is long enough to properly incentivize innovators.
Now lets look at the duration of a copyrighted work. A copyrighted work that is created on or after January 1, 1978, is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works, the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.
However you cut it, the term of a copyright is MUCH longer than the term of a patent. One way to justify the difference between these two forms of intellectual property that are both mentioned in Article I, Section 8, Clause 8 of the U.S. Constitution is that under the Copyright Act there are numerous fair uses and defenses to copyright infringement actions. Although copyrights are in the first instance considered “exclusive” in nature, there are an awful lot of things that a copyright owner cannot exclude. Many think the term of a copyright is too long, but having a term longer than the patent term always made sense to me because copyrights were at best thought of as a very weak sister to patents.
In 2017 copyrights are no longer the weak sister. Patents have become so gutted, so easy to challenge, so time consuming, difficult and costly to obtain, and worth so little compared to the licensing fees or damages they could generate in the case of infringement.
It is time to serious ask whether the 20 year basic patent term – a term that no patent ever actually fully enjoys – is too short in light of the extraordinary erosion of the rights associated with the patent grant over the last 12 years. If an absolute maximum of 17 years of term versus life plus 70 made sense when patents were strong, what number for patents makes sense now that they are so weak and fragile?
If we want to continue to have any level of incentive for inventors, any hope for investors to be interested, Congress needs to consider lengthening the U.S. patent term to bring it more closely in line with the proportionate strength of the right inventors are being granted today.