A quiet title is an absolute prerequisite to enjoyment of an exclusive right

Article I, Section 8, Clause 8 of the U.S. Constitution provides for the extension of an “exclusive Right” to inventors. In exchange for this exclusive right the United States Patent and Trademark Office, by and through the requirements of the Patent Act and implementing regulations, requires significant invention disclosure. In fact, the disclosure required must place the public in possession of the invention so that the invention can be both made and used by those of skill in the art having merely read the patent, all without undue experimentation.

In the post-AIA era it is hard not to notice that there is an uneven disturbance with the historic bargain struck between inventor and the government. In exchange for the exclusive right mentioned in the U.S. Constitution the inventor discloses a great deal of information about his or her invention, which adds to the knowledge base. The reward of a patent is an incentive, which according to Abraham Lincoln adds fuel to the fire of creative genius.

At some point a property right needs to quiet. If title in a property right never quiets how can it be considered a property right? If title in a property right never quiets is that right really an exclusive right? This is why the single most damning problem facing the patent system today is the inescapable reality that the incentive – the patent itself – has become at best an illusory promise.

In short, a quiet title seems an absolute prerequisite to the enjoyment of an exclusive right guaranteed by the Constitution. Unfortunately, a quiet title in a patent today simply does not happen if you are actually lucky enough to have obtained a patent on a commercially valuable innovation, which is a very sad commentary indeed.

The problem with patents in the post-AIA era is the system and judges that implement the system do not apply basic property laws, despite the fact that the statute says that patents are to have the attributes of property. Title in patents never seem to quiet any more – ever. Indeed, it is particularly difficult, if not impossible, to quiet title now thanks to the existence of inter partes review (IPR), a type of post grant challenge to the patent that can literally be brought at any point in time during the life of the patent. Furthermore, without a standing requirement to file an IPR challenge anyone at any time for any reason right up until the last day the patent is alive can file an IPR. [1]

“Commercial development of innovation, and new business formation, demands the prompt and predictable grant of durable property rights, and a reasonable expectation of the enjoyment of quiet title upon issuance,” wrote Brian O’Shaughnessy. “Financing of new enterprises, and the growth of existing ones, demands intellectual assets that stand up to challenge, regardless how those assets are derived or commercialized.”

There could be changes made to the patent laws that would lead to a quiet title for patents, that is if Congress were so inclined to once again favor a strong patent system in the same way that the Chinese government seems to favor patents (see here and here). We know how to do this for property, and in fact it happens literally every day in courtrooms all across the country. For example, when real property is used to secure a loan and the loan is not paid the property will be sold, with anyone having rights being notified before a sale can take place. In fact, there are laws in every jurisdiction on what notice is required, whether it be the notice due so that a lien can be place on a property, or the notice due prior to a forced sale. There are also detailed notice provisions for matters of zoning and planning when adjacent properties will be impacted by development, for example. And if actual direct notice cannot be given there are provisions that allow publication of such notice in newspapers and via other means. The same or similar also happens in bankruptcy courts every day. Thus, throughout various areas of law we know how to quiet title and give those with interest in the outcome notice that satisfies due process requirements. Patents shouldn’t be any different.

We know very well how to both legally notify interested parties in ways that have been thoroughly vetted for constitutionality purposes, and we know very well how to legally extinguish the rights of interested parties who choose not to participate in proceedings for one reason or another. So it is entirely feasible to quiet title in a patent once and for all and extinguish any and all challenges moving forward. Congress just needs to have the will to do that and actually recognize that patents are a property right.

It is time to recognize that patents are a property right, as the statute actually says they are. This requires patents to at some point result in a quieted title that cannot be challenged. We do this on the trademark side with incontestable trademark status, so why not on the patent side? After all, patents – not trademarks – are actually mentioned in the Constitution.

Patents are a property right of constitutional importance. It is long since time for the U.S. to start acting that way.

_______________

[1] Technically, an IPR can be filed up until six years after the patent has expired given that is the statute of limitations for bringing a patent infringement action.