IP rights are essential ingredients to our innovation system

Walter Copan, Under Secretary of Commerce and Director of the National Institute of Standards and Technology.

Walter Copan, Under Secretary of Commerce and Director of the National Institute of Standards and Technology, speaking at Unleashing American Innovation Symposium, in Washington, DC, April 19.

“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.


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Join the Discussion

10 comments so far.

  • [Avatar for Ale]
    May 5, 2018 05:53 am

    I just thought I would comment as a potential patentee from the UK.
    I know this discussion is about patents as property rights but I see this in a bigger context.
    The UK system is much more transparent and easier to complete. An inventor does not want to wade through US law at each step of the process.
    In the UK we would say “Keep it Simple Stupid =KISS”.
    You must be correct that this is harming US research.

  • [Avatar for Eric Berend]
    Eric Berend
    May 2, 2018 03:56 am

    Truth in advertising.

    “.. was seen then…”
    “…patents were indeed strong…”
    “…phenomenal history…”
    “,,,patent system was,,,”
    “…was for the individual inventor…”
    “…was for the small enterprise…”
    “…who could build…”

    Is there something consistent about the above quotes excerpted from the portion of ‘Super Important Bureaucrat’ Copan’s remarks written by Gene, above?

    The entire statement is posed in the past tense.

    There is nothing in the above remark to indicate any commitment to the slightest difference in the future. With due respect, Gene is grasping at straws.

    It IS NOT “giving up”, to concentrate our relatively meager resources on education and public appeal, for the next generation to find a different general understanding, without which legislators will do nothing – as I had advocated for, before being roundly criticized.

    For the sake of the remaining chances and out of respect for the long term efforts of Paul Morinville, Josh Malone, Gene Quinn and others, I refrained from responding after being dressed down by Gene for (presumably) my accurate analysis and seeming ‘defeatist’ stance. Now, after seeing the dismay amply displayed in the comment boards of this site in the past week by several of the above persons who are stalwarts in our vanguard, I’ll have that apology I think I am due.

    It was no joy for me to make such sober and supposedly pessimistic evaluation and prognostication at the time; and now that the truth of my perceptions in the matter are verified, I would reiterate that the best response is outreach, engagement and education of the next generation.

    The ‘enemy’ cabal of IP pirates quite effectively leveraged the human network effect of the ‘common man’ and the college cohort against our cause in a devastating mass assault augmented by the appeal to authority rhetoric in corrupt academics such as the odious Prof. Lemley; and to which there was very little response on ‘our side’.

    It is long past due, for that to change.

  • [Avatar for Anon]
    April 30, 2018 03:26 pm

    Without signifying either agreement or disagreement***, I admire your stance, Mr. Morinville.

    *** I need not agree or disagree to recognize the virtue in your conduct.

  • [Avatar for Paul Morinville]
    Paul Morinville
    April 30, 2018 02:58 pm

    Pro Se, I have patents expiring in the next couple of years. I’ve been paying $20K/y in maintenance fees on my patents and I will likely never see any return. Large government cronies just got to take them.

    I want nothing more than to stop the bleeding. But I have to disagree. I’d rather walk away with a total loss having helped fix the system for the next generation than to get a partial fix that helps me in the short term but leaves the corrupt government cronies with a way to kill it again in the future.

    It has become a moral question for me. One that effects my kids and grand kids. The STRONGER Patent Act will perpetually leave government cronies with the tools to kill what they want to take. We need to Massie’s bill that makes patents property rights and completely eliminates the PTAB.

  • [Avatar for Pro Se]
    Pro Se
    April 30, 2018 02:07 pm

    @4. I don’t think anyone with kids and a hot summer haven’t become familiar with your work, on my worst days dealing with the system, you provide inspiration!

    @5. I’d welcome anything at this point Paul… I think something will have to move somewhere in legislation.. I feel anything is better than where we are today.

  • [Avatar for Paul Morinville]
    Paul Morinville
    April 30, 2018 01:43 pm

    Pro Se, I’m not sure that the STRONGER Patent Act is the right legislation post Oil States. Massie’s bill specifically says a patent is a property right. I think this is now needed. If the STRONGER Patent Act is passed under the new Intellectual Franchise (IF) system, we will never get our patent system back.

  • [Avatar for Josh Malone]
    Josh Malone
    April 30, 2018 01:41 pm

    @Pro Se: total abolishment (i.e. repeal the Patent Act) would certainly be better. Inventors would apply their minds and resources to productive activities. As it stands 99% of them don’t know they are donating their discoveries and funding their betrayers. I hope to educate them. If successful, then we can make the current system just as good as eliminating patents. Until then it is much worse.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    April 30, 2018 01:14 pm

    China will win & never allow the US will never be #1 again because…

    1. It didn’t and doesn’t let the Cronies have unfettered access to its country.
    2. It knows prevention is better than cure.
    3. It has patience.

  • [Avatar for Pro Se]
    Pro Se
    April 30, 2018 01:09 pm

    I watched that video of Director Iancu at the Senate Committee and I was surprised to see how aware Senate is of the current patent issues. Including the negative effects recent court rulings has had on the system.

    Everyone noted at that hearing that China is supporting their patent economy and this is one thing the Unitied States lawmakers will not want to concede to.

    The Stronger patent act would strike a balance, I wish the Stronger patent act was in place today, but the Committee made a good point: most of the policies in the Stronger bill can be made by the Director now.

    Things can’t get any worse after Oil States and SAS… besides total abolishment of patents. I personally don’t think the U.S. will ever be #1 again in the global patent index… when the AIA decided to follow with first-to-file and then allow a patent to be attacked by anyone an unlimited amount of times until “something stick”…

    If the U.S. focus is stopping patent owners from stopping domestic infringers, China has taken full advantage of the U.S. back being turned and shooting itself in the foot.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    April 30, 2018 01:08 pm

    Well, Gene, no one cares until their ‘IF’ (used to be ‘IP’) is in the PTAB.

    It’s hard to find anyone of my generation who even knows how the laws are changing. And, we’re the ones who will be most burdened by them once China becomes the innovation leader and world superpower.

    Americans just aren’t very forward thinking…especially in government where it is needed most. Every American is still racing to Silicon Valley and worshiping the Tech Giants because they’re uninformed.

    This is what China is great at. It waits, watches, studies, and then executes for a better future.
    Americans just rip and run and burn themselves out chasing the inflated US dollar.