“Let’s talk a bit about intellectual property rights,” Undersecretary of Commerce and Director of NIST Walter Copan said at the LES Silicon Valley conference on Wednesday, April 25, 2018. “IP rights are American property rights.”
This simple, declarative statement by Director Copan was as important as it was direct. These words were spoken on the morning after the United States Supreme Court issued its decision in Oil States v. Greene’s Energy, which rather than saying patents are a property right instead called patents merely a “government franchise.” Indeed, the Supreme Court once again in a patent case ignored the text of the Patent Act, which says patents have the attributes of property, and instead took up the invitation of the Solicitor General and found that patents are not property rights, but instead are a government franchise.
I do realize that the Supreme Court held out hope that while patents are not property rights for purposes of the 7th Amendment and Article III of the U.S. Constitution, patents might somehow be considered property rights under the 5th Amendment of the U.S. Constitution. While it is certainly possible that a properly framed challenge to the objective unfairness rampant in proceedings at the Patent Trial and Appeal Board could result in a finding that such fairness violates due process rights, or perhaps is a taking, it strikes me as pure folly that a patent would be considered a government franchise for purposes of the 7th Amendment and Article III but then somehow morph into a property right for purposes of the 5th Amendment.
As we’ve seen time and time again with respect to the Supreme Court’s patent jurisprudence, the Court can and will do whatever they want regardless of the intellectual dishonesty, regardless of the fact that there is no support for their rulings in the statute, and regardless of the fact that what they say is directly contradicted by the statute. After all, this is a Court that has not only ruled now that patents are not property rights despite 35 U.S.C. 261 saying the exact opposite, but they have also ruled that discoveries are not patent eligible, despite the fact that 35 U.S.C 101 says the exact opposite. See Myriad Genetics.
In any event, at a moment in time when it would be easy for the patent community to simply give up under the oppressive weight of government lead by a Supreme Court that seems hell bent on systematically breaking apart the U.S. patent system, it was good to hear from Director Copan that not everyone inside the U.S. government shares the same myopic and destructive views of innovation and the U.S. patent system.
“IP rights are essential ingredients to our innovation system and indeed to any nation’s innovation system,” Copan went on. “The clarity and enforceability of IP rights are core American rights for the benefit of commerce, for the practice of useful arts and sciences as confirmed by the founders of our nation.”
Director Copan’s remarks proceeded:
The grant of a right to exclude others was seen then as a stimulus to learning and effective competition. And the first U.S. patents were indeed strong patents. The first one signed by George Washington himself. Above one of the doors that I use to enter the Department of Commerce Building, the Herbert Hoover Building in D.C. is the quote by Abraham Lincoln that you see here. “The U.S. patent system adds the fuel of interest to the fire of genius in the discovery and production of new and useful things.” What phenomenal history we have in this country, don’t we, with our presidents, with our founders having seen the value of U.S. enterprise and the importance of a strong patent system as part of that. And our patent system was uniquely America. It was for the individual inventor. It was for the small enterprise who had great ideas and then who could build a company or license or sell their inventions to a practicing entity. And yes, whether they’re individual inventors, entrepreneurs, small companies, large corporations, universities, even the Federal Government they’re all non-practicing entities of some of the technologies and the rights that they hold.
Speaking of the importance of a reliable U.S. patent grant, and the need to restore certainty to patent claims once they are granted, Copan explained the need for industry engagement.
“It’s important for this community of patent stakeholders to continue to be heard above the noise in Washington and elsewhere to ensure that legislators and stakeholders understand the value of the U.S. patent system as critically important to U.S. innovation, leadership, and competitiveness,” Copan said. “IP reliability is also the foundation for the spin outs that come from our universities, our research hospitals, and federal labs and certainly here within Silicon Valley we know that very clearly, don’t we?”
Yes, we most certainly do!
While it may be easy to retreat, now is not the time to give up. It is only a matter of time before Congress will be asked to overrule Oil States. Whether that can be accomplished during the 115th Congress remains to be seen given the very short window of opportunity available. The 116th Congress may present more favorable opportunities, particularly with the retirement of House Judiciary Chairman Bob Goodlatte (R-VA), Congressman Darrell Issa (R-CA) and Congressman Lamar Smith (R-TX). But failure to engage now is a mistake. Too often interested parties wait until something gains momentum, and then become shocked to learn that by the time a bill is publicly known there is little or no real opportunity to influence outcomes.
When Director Copan says patent stakeholders need to be heard above the noise in Washington he should be taken at face value. So, if patents matter to you it is time to engage. There is no time better than the present to become involved.