Congressman Thomas Massie (R-KY) never intended to run for office or become a politician when he was majoring in electrical and mechanical engineering at the Massachusetts Institute of Technology (MIT). “I look forward to returning to my prior life of inventing and working on my farm,” Massie told me via telephone in an extended interview that took place on Wednesday, June 28, 2017. “I look at this as my service.”
Inventors and others who believe in the importance of patents to the U.S. economy no doubt hope that Congressman Massie, himself an inventor with two dozen U.S. patents to his credit, is in no great rush to return to his entrepreneurial life – running his own company built on the inventions he made. There is no doubt that Congressman Massie is a steadfast ally in the never-ending battle over the future of the U.S. patent system. And make no mistake – it is a never-ending battle.
“I can tell you, every day Congress is in session there are lobbyists here trying to weaken the patent system,” Massie explained.
In Massie’s words, those companies that come to Capitol Hill and lobby to weaken the patent system want to get into new fields, but the problem is they didn’t invent in those fields, so they face problems. Patent problems. A lot of those companies want to become automobile manufacturers, or cell phone manufacturers, or they want to write software for operating systems, but they didn’t invent in those areas and they don’t own the patents that have historically been the touchstone of innovation ownership. “They’d love to just come in and start playing in those fields and start using their size and scale as an advantage, and to them, patents look like a hindrance,” Massie explained. “They are here in Congress looking to weaken patents and they are not just interested in weakening patents issued in the future, they are looking to weaken all patents.”
The distinction Massie draws about the interest in weakening all patents is an important one. So frequently those that lobby for rules and laws that weaken patents claim to be doing so simply as part of an effort to ensure greater quality. Massie sees reform efforts differently though.
“Reform is not about strengthening the patent granting system, but about making it harder for patent owners to assert patents to protect their rights,” Massie said emphatically. “They didn’t read the Constitution and come to say they have a better way more in line with what the Founding Fathers had in mind. They just want all the patents to be public domain today. It is very short sighted to attack the patent system in this way.”
Unfortunately, it is easy to understand, at least from a mechanical/process perspective, how it is that those companies who would prefer the demise of the patent system seem to continually get their way on Capitol Hill. “There is a certain critical size companies reach before they hire lobbyists, which means only the big companies are represented on Capitol Hill,” Massie said. “Patents help the little guy, whether you are a one person company or a company with 10,000 employees, you have the same rights. That is repulsive to the company with 10,000 employees.”
Inventors will Invent
One of the well-worn talking points used by those lobbying against a strong patent system relates in one way or another to be the belief that inventors will invent regardless of whether they can obtain a patent because that is what inventors do. Massie disagrees.
“I’m often amused at some of the academics that talk about intellectual property,” Massie said. “They talk about inventions happening in the same vigor even if inventors are not compensated with a patent, and that notion is ridiculous. You have to make a living somehow. People will go into the field of invention if it is a lucrative field and they won’t if it isn’t.”
Massie is, of course, correct. At some point in time people need to feed their families, put a roof over their head and pay bills in the real world. If inventing cannot be a means to that end it will never be anything more than a hobby.
“Don’t be surprised if people don’t want to go into [inventing] if the reward system or compensation mechanism are taken away,” Massie said emphatically.
Congressman Massie didn’t stop; he was on a roll. “We wring our hands at the notion we are falling behind in science, engineering, technology and math compared to other countries,” Massie said.” The answer is simple: make inventing a lucrative field of endeavor for children to aspire to be a part of the industry. More importantly, children need role models. “If you take away the compensation for their heroes – their role models – if you impoverish their role models, how are they role models any more?”
Of course, even if inventors would work for free, “who would invest in the idea,” Massie asked. “Ideas are expensive to reduce to practice. There are otherwise great ideas that will never be reduced to practice if the investors who might invest can’t see a way to recoup their investment.” Eventually people will lose the interest in creating anything new.
Next Generation Better Off?
Massie would tell me that America was founded on rugged individualism, where you own the fruits of your labor. “Some people believe you didn’t build that and your idea doesn’t belong to you, but that notion is contradicted by the Constitution, Massie explained. “The Constitution says ‘exclusive right’ which means that idea belongs to you, not to the community… Private ownership is what sets us apart from countries that have come before us. That whole system set up by our Founding Fathers a couple hundred years ago has served us well and is still not replicated over seas. So as long as we don’t screw it up I think we are going to be competitive overseas.”
But will the next generation be better off than the last generation? Will we see our children have reduced economic opportunity? Those are questions that Massie says he hears frequently when he speaks with concerned Americans.
“When I get that question I think it is ridiculous,” Massie explained. “Of course the next generation will be better off, but it won’t be because of Washington, DC, it will be because of the inventors who come up with life saving devices, labor saving devices, and we won’t forget those that were made 5 years ago, 10 years ago, we will build on those. So the next generation will be better off because of inventors as long as politicians don’t screw it up.”
Inventors are Not Trolls
“Something that I find really offensive is this notion that inventors who don’t manufacture their own inventions are trolls,” Massie told me.
It was at this point of our conversation that Congressman Massie really heated up and became exponentially more passionate (if that is possible for someone who is already thoroughly engaged in these issues). Massie explained:
Somehow inventors who don’t manufacture are on a lower moral footing than other careers. Inventors and engineers are just out to extract rent from other people if they don’t manufacture their ideas. That is ludicrous on several levels. Does an author have to have a printing press and a bookstore to have a legitimate career? No, that is ludicrous, but somehow lobbyists have been able to sell this idea that if you are an inventor and you don’t subsequently try and build a factory and distribution center to get your invention out there you are somehow not a legitimate member of society. That I find very offensive, and dangerous too, if our society is going to be an information society.
If we are creating this notion that ideas in and of themselves do not have value we are in trouble because our country has already decided to move from a manufacturing economy to an information society. Those two things are incongruous and are setting us up for failure.
Massie couldn’t be more correct. 70% of early U.S. inventors did not even graduate high school. Indeed, the founding fathers purposefully set up a system that had one particularly unique attribute: Unlike the British Patent System, the U.S. patent system was set up to be cheap enough for everyone to afford the fees, which meant that anyone could be an inventor. Clearly, the founding fathers knew that the patent system they were purposefully creating to be affordable enough to be used by average citizens would lead to individuals obtaining patents on their inventions. The Founding Fathers also would have known that those average citizen inventors would not have the means to be able to manufacture, but would instead license those patent rights to others. Therefore, the U.S. patent system was initially set up to purposefully create a licensing regime whereby inventors would invent and companies that manufacture and distribute would focus on what they did best. Fast-forward to today and suddenly patents are only pro-competitive if you are manufacturer. Massie is absolutely right to notice and call-out the incongruity.
What can inventors and supporters of the patent system do?
According to Congressman Massie, the best (and cheapest) way to communicate with your Member of Congress is to actually pick up a phone and call. “I would not write a letter and I would not send an e-mail,” Massie told me. “Fewer and fewer people think to pick up the phone and make a phone call, so it is a channel where there is not a lot of communication.”
Massie pointed out that bots can send thousands of e-mails with similar scripts, and letters are frequently nothing more than a form letter that gets printed and sent by hundreds or thousands of people to hundreds of Members Offices. “My Congressional Office receives ten phone calls a day,” Massie said. “A human has to respond when someone calls, so that makes it an excellent medium for contacting your Member of Congress.”
Increasingly, inventors and average citizens are taking time to get more involved and making the trek to Washington, DC. This, however, is not without substantial cost, and according to Congressman Massie is probably not the best return on your investment.
“If you really want to get the attention of the Congressman go to one of their fundraisers,” Massie said. “I don’t care whether you are ideologically aligned on social or fiscal issues, but if patents really matter to you do what high dollar lobbyists do, which is to go to one of their fundraisers. I watch people spend $5,000 to go on a trip to DC to meet with someone on the staff when they could have meet with the Congressman themselves back in the district for much less and received a much larger portion of their attention.”
Massie went on to explain that during the 113th Congress the Innovation Act passed in the House, which would have been a disaster. It was defeated in the Senate, but came back in the House during the 114th Congress, but this time it was defeated in the House. “They didn’t have the element of surprise in the last Congress, and we were able to enlist universities and VCs. They were able to mobilize and stop the weakening of our patent system,” Massie explained. “ I talked until I was blue in my face to my colleagues, but it was because I talked with people on the outside and they were able to talk to their Congressman. That is how these battles are won.”
So the fight is never over, but inventors and other supporters of a vibrant patent system have a strong and steadfast ally in Congressman Thomas Massie.