Posts Tagged: "property rights"

Property Rights and State AGs’ Assault on Remdesivir: A Conservative Perspective

By now, everyone in the IP arena has heard about the demands of more than 30 state and territorial attorneys general (AGs) regarding the promising COVID treatment remdesivir. These AGs seem to disrespect the exclusive rights of limited duration that patents afford. California Attorney General Xavier Becerra (D) and Louisiana Attorney General Jeff Landry (R) led a bipartisan effort getting colleagues to write the U.S. Department of Health and Human Services and call for what’s tantamount to eminent domain on intellectual property. To a conservative who works on IP matters, this demand in and of itself is troubling. Bedrock conservative principles include property rights, free enterprise and the rule of law. The AGs advocate government’s abrogation of all three of these foundational principles.

‘Unalienable Rights’: Understanding America’s Growing Disdain for Physical and Intangible Property

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” reads the preamble to the Declaration of Independence, a document authored by Thomas Jefferson, edited by Benjamin Franklin, and signed by some 56 Congressional delegates. Over the weekend, we celebrated the 244th anniversary of the signing of the Declaration of Independence, and in light of everything that has happened over the second quarter of 2020 it is perhaps a good time to reflect. So much of the second quarter of 2020 has been defined by two major events— the unnecessary and unacceptable killing of George Floyd and COVID-19. In the coming weeks and months there will be much written and debated by experts in the field of social justice, police reform and government relating to just about every aspect of the events relating to the death of Mr. Floyd. As those conversations ensue, and reforms are brought to bear, as more fully explained below, America should also take this opportunity to have a broader conversation about private property rights— real, personal and intangible.

Legislation Introduced in House to Repeal the PTAB and the AIA

There are 13 sections to Massie’s bill, many of which are geared towards the abolition of various statutes of the AIA. Perhaps the most salient portion of the proposed bill are sections regarding the abolishment of the Patent Trial and Appeal Board (PTAB) as well as the elimination of both inter partes review (IPR) and post-grant review (PGR) proceedings currently conducted by the PTAB. As the bill states, both IPR and PGR proceedings “have harmed the progress of science and the useful arts by subjecting inventors to serial challenges to patents.” The bill also recognizes that those proceedings have been invalidating patents at an unreasonably high rate and that patent rights should adjudicated in a judicial proceeding and not in the unfair adjudication proceedings which occur within the U.S. Patent and Trademark Office. Ex parte reexamination proceedings would be preserved by this bill as well.

The Supreme Court is wrong, a patent is not a franchise

The word franchise is defined as an authorization granted by a government or company to an individual or group enabling them to carry out specified commercial activities… A patent is an exclusive right by nature. A patent does not give anyone the right to do anything other than to exclude someone else from doing something… So how then can a patent be a grant from the government to carry out specified commercial activities? That is simply not what a patent is, it is not what the statute says, it is not the grant provided to the patentee. To put it point blank, the Supreme Court has fundamentally altered the nature of the patent grant without reason or authority.

Why is the Trump DOJ arguing patents are a public right?

It is no surprise to anyone that patent rights in the United States suffered enormously under the two terms served in the White House by President Barack Obama. That the Obama White House was uncomfortably close with Google is widely known, and Google has been the face and driving force of the lobby that supports weakening patent rights in America. What is far less clear, and extremely difficult to explain or understand, is why the Department of Justice continues to make arguments against patents. Indeed, in the DOJ brief filed in Oil States v. Greene’s Energy, the Solicitor General argues repeatedly throughout the brief that patents are not private property, but rather are a public right… At the very beginning of the brief filed by the DOJ in Oil States, in the Summary of the Argument, the DOJ stakes its claim and beings by arguing that patents are a public right (not private property) that is akin to a government-conferred franchise.