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

“Starting first with the Napster generation and the view that sharing copyrighted music is somehow an unalienable right in and of itself, the disregard for creators not only transcended the public but has transcended all the way to the Supreme Court itself.”

Declaration of Independence“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. That is where our expertise lies, and we will attempt to facilitate that conversation.

Happiness Instead of Property

John Locke greatly influenced the Founding Fathers, including Thomas Jefferson. According to Locke, the legitimate basis of government is to protect inalienable natural rights each individual possesses through birth. Among these unalienable natural rights are “life, liberty, and property.” The use of the term “pursuit of happiness” instead of Locke’s reference to “property” was intentional, not because it was intended to diminish the desire to view property as an unalienable right, but because the “pursuit of happiness” was viewed as broader and intended to represent the viewpoint that the control of one’s own destiny – whether relating to tranquility, economics, or political participation – is an unalienable right.


A Lack of Respect for Private Property Rights

Over the last six weeks, there have been large protests in the great American tradition of exercising the right to free speech, assembly and participation in petitioning government for change. Unfortunately, late into the evening in at least some American cities, long after peaceful protesters had gone, a few agitators have shown a disregard for private property rights.

Much of what has gone on, even late into the evening, can be and is defended by some as part of any rebellion. And even Thomas Jefferson spoke fondly of an “honourably conducted” rebellion every 20 years or so. But the opportunistic looting by a few speaks to a deeper- rooted belief structure.

Those familiar with intellectual property and the plight of creators well know this belief structure. The disregard for the intangible property rights has become cliché over the last generation, and increasingly so over the last decade. And it is not just inventors who find their innovations appropriated by large multinational corporations. The mean income of authors in America is very near the poverty line, with many living on welfare.

While talking about intellectual property at a time like this may seem inapt, the mindset that allows one to ignore the rights of another cannot be cabined and shouldn’t be ignored. In fact, this mindset and viewpoint has precisely and specifically been ignored for too long. As Martin Luther King, Jr. condemned rioting, he also acknowledged that “a riot is the language of the unheard.”

A Quick History of the Demise of Respect for Intangible Property

Starting first with the Napster generation and the view that sharing copyrighted music is somehow an unalienable right in and of itself, the disregard for creators not only transcended the public but has transcended all the way to the Supreme Court itself.

Witness these curiosities, for which we have the Supreme Court to thank:

  • Patent owners have no right to an injunction if they are victorious in a patent litigation despite the fact that a patent is supposed to be an exclusive right. See eBay v. MercExchange, 547 U.S. 388 (2006).
  • Despite the fact that the Patent Act passed by Congress says patents are to be treated equivalent to private property, a 2018 ruling said they were nothing more than a “government franchise.” See Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S.Ct. 1365 (2018).
  • The Administrative tribunal charged with taking away patent rights upon petition by another can, if they choose, ignore the statute of limitations and institute a challenge in contravention of the statute and not even the Supreme Court can stop a rogue panel clearly operating outside the mandatory dictates of the statute. See Thryv, Inc. v. Click-to-Call, LP, 140 S.Ct. 1367 (2020).

Exactly how can one even pretend that a patent is an exclusive right without the right to exclude? How can one pretend that a patent is a property right, as the statute says, when the Supreme Court has ruled it is merely a “government franchise”? How can anyone have any belief that even their government franchise is secure if the Administrative tribunal charged with reviewing patent rights can ignore the statute of limitations without consequence?

The Die is Cast with Eminent Domain

Those familiar with the recent evolution of the United States Supreme Court’s eminent domain jurisprudence know all too well the whimsical nature of how the High Court treats property rights; even sacrosanct property rights in the form of real property. Decisions over the last generation relating to eminent domain should make everyone wonder about whether private property rights really exist at all. If the government wants someone else to have your property, they can take it from you and give it to another private citizen under the guise of eminent domain. See Kelo v. City of New London, 545 U.S. 469 (2005).

Time to Confront Critical Questions

The shocking disregard for private property in America is as alarming as it was predictable. It has been brewing for some time. What does it mean? Where is it coming from? What does it portend for the future? Time will tell, but these are critically important questions for our consideration. These questions should not be swept under the rug and ignored as if everything is fine. Everything is not fine. Too many in our society view the property rights of others, whether real, personal or intangible, as inconveniences.

Image Source: Deposit Photos
Author: Lawcain
Image ID: 67946613 


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Join the Discussion

26 comments so far.

  • [Avatar for Robert]
    July 13, 2020 09:43 am

    Ok, I think I see the gist now.

    THANK YOU for your insights


  • [Avatar for Anon]
    July 13, 2020 07:36 am

    That said, it seems to me that non-obvious + novel + useful = something other than sitting on one’s IP,

    Simply wrong.

    That is the heart of it.

    It is a creation of a property right from an inventor’s inchoate right. What is done with that property right is entirely up to the owner, and there is NO impetus of “must use” in the US Sovereign.

    And yes, I do draw a distinction of different Constitutional sections from which patent and copyright differ from trademark and trade secrets.

  • [Avatar for Robert]
    July 12, 2020 04:26 pm

    I am aware that commercialization is not nor has ever been a formal consideration in granting IP protection (other than Trademarks that, last I checked, require proof of market usage, or promise of intent to do so within 6 months). That said, it seems to me that non-obvious + novel + useful = something other than sitting on one’s IP, or otherwise doing nothing with it (except, I suppose, if one’s aim is to reserve the right to control the application/interpretation of the inventive knowledge one discloses to the public).

    As to the work of thinking … A downside of artificial-intelligence (in my opinion) is that digital will always fail to mimic analog expertly (except, maybe, as I understand things, in quantum-state/flux). “Close-enough” has many applications of value, one of which is the nice feature of being able to completely distance emotions from data-streams (real-time or asynchronously). So computing-power is great in principle, but as best I can tell, technology in practice has outstripped human ability to appreciate it (e.g. social sciences are still 2D, even though 3D modelling is now readily available).

  • [Avatar for Anon]
    July 12, 2020 09:33 am

    I assume IP protection is contextual to commercialization

    That would be a mistake.

    I believe thinking is work, so…

    That would be closer to the mark.

    IN your understanding of IP — and in particular, your understanding of the form of IP reflected in patent protection, there is NO (never has been, and to reflect innovation principles, never should be) requirement for a “must use in the market” or any such mandatory link to “contextual to commercialization.”

    While I fully grant that innovation receives an ADDED boost when a first innovation is put into the gears of commercialization, innovation and innovation protection simply has NO requirement of any kind that such a NEXT STEP must be done.

    A deeper understanding not only of innovation qua innovation, but also of the history and intent of patent law would provide this to you.

  • [Avatar for Robert]
    July 11, 2020 11:14 pm

    Hi Anon,

    Wonderful reference to Magritte ! And how funny about your background ! I’m a business-economist who has spent most his career as a consultant and educator, and enjoy discussing the large, the small, and everything in the middle.

    I assume IP protection is contextual to commercialization, so law-of-nature exclusions are meant to artificially limit concentration of power, not really reflect or approximate reality. This said, I believe thinking is work, so (in my opinion) conjuring-up a formula/algorithm that somehow improves peoples’ lives deserves a reward or award (creator’s choice) as much as any doohickey, or pharma concoction.

    Thanks for sharing your view. Even when eye-contact is impractical, heartfelt honesty is always an option on the table, as far as I’m concerned.

  • [Avatar for Anon]
    July 11, 2020 08:54 am


    Thank you for your expressed views. While we may not see eye to eye, I enjoy your subtle humor and insertion of your own ‘matter of the hear’ approach.

    As to ‘astro-physicist,’ my original career in the technical sphere was one of being a literal rocket scientist, and to this day enjoy discussions of the extremes of physics (from the very great to the very small). For that first degree, I had a minor in the history of science and technology, and find it amazing how often the “laws of nature” (as actually written by man) simply are NOT the actual ‘laws’ that nature has. The map is not the land. This is not a pipe (with a nod to René Magritte).

  • [Avatar for Robert]
    July 11, 2020 07:35 am

    Anon – I’m still noodling on the imagery you’ve floated. In the meantime … I generally skim more than I glom, but take your point. In my view, IP is only one of several forms of intangible capital value. As such, it’s vital to consider & account-for peoples’ motivations to pursue & be-rewarded-by/with matters of the heart as well/much as of the mind. Sure, if one asks an astro-physicist, s/he might suggest strings are always attached to everything. If one agrees (I think I do), then how taught or slack those strings are matters alot, once they can be detected (opaquely/transparently, depending on the background color/hue). High regards, Robert

    Note: “/” = “and/or”

  • [Avatar for Anon]
    July 10, 2020 07:17 pm

    His version of “reward” comes with some mighty thick strings.

  • [Avatar for Anon]
    July 10, 2020 07:16 pm


    I suggest that you do a little research then before glomming onto Prof. Merges’ latest offerings.

    You may recognize some similarities to a large ornamental equine figure made from trees.

  • [Avatar for Robert]
    July 10, 2020 01:02 pm

    Hi Anon,

    I’m unaware of the infamy you mention, but suspect it’s a different person. My reference (I apologize for not having framed better) is an academic who essentially argues (using theory & philosophy) that it’s better to reward creativity than give it away for free.



  • [Avatar for Bemused]
    July 10, 2020 11:10 am

    Ternary@11: Your display a very naive perspective of the bigger picture. Undoubtedly, Big Tech’s corporate greed underlies the private-sector effort to eviscerate patent rights. But didn’t we bestow federal judges with life tenure precisely so they could (among other things) be immune from making rulings based upon personal greed/gain?

    Also, as regards these so-called “conservative” jurists: Are they really conservative or just pretend conservatives (like many so-called “Republicans” or RINOS) when it comes to patents as property rights? Exhibit A for a so-called “conservative” jurist that really isn’t is Chief Justice Roberts.

    Finally, as regards your reference Darrell Issa, you seem to believe that because Issa is wealthy he couldn’t possibly ascribe to or have any marxist/socialist philosophies. That couldn’t be further from the truth or reality. Marxism/socialism is built on the concept of a ruling elite that decides what is best for the uneducated peasants. Darrell Issa – notwithstanding that he made his millions off patented products – espouses the same exact philosophy.

  • [Avatar for Anon]
    July 9, 2020 05:51 pm

    Merges of the fake numbers infamy (anti-patent)….?

    No thanks.

  • [Avatar for Robert]
    July 9, 2020 09:58 am

    Here’s a potentially valuable reference … “Justifying Intellectual Property” by Merges


  • [Avatar for ghostndragon]
    July 8, 2020 02:38 pm

    “The use of the term “pursuit of happiness” instead of Locke’s reference to “property” was intentional, not because it was intended to diminish the desire to view property as an unalienable right, but because the “pursuit of happiness” was viewed as broader and intended to represent the viewpoint that the control of one’s own destiny – whether relating to tranquility, economics, or political participation – is an unalienable right.”

    HAHAHAHA! How Pollyanna. The reason “pursuit of happiness” was included was because there was (and still is) a broad swath of the American people who do not and, importantly at the time, COULD NOT own property. Many of them were considered property themselves. We have not come all that far, either.

    Why in the world would Americans, in general, have a soft spot in their hearts for property when they, themselves, are actively deprived of property (real or otherwise). And, honestly, it’s not terribly surprising that the courts have followed suit (and despite the political trolling, NOT via Neo Liberal politics, FFS–have you even LOOKED at SCOTUS?), because the people who benefit from removing a general right to property are actually those who gain more property as a result.

    That is, those who are most likely to lose property as a result of political and judicial property grabbing are those with the least property to begin with. I mean, how many cases of “Government Entity vs. Physical Item” cases have to won before we realize that it’s a way to fund government entities through property theft rather than making sure that high income tax evasion is stopped so that such government entities can be properly funded? Oh, wait, we don’t want to do that. Drown government in the bathtub, or whatever, so long as I get mine and some poor sap (who either can’t trust a bank or gets turned away because reasons) gets his cash confiscated because it must somehow be proof that he’s dealing drugs (or somesuch nonsense), which the cops don’t actually have to prove because they charge the cash with a crime rather than the person. And despite some legal precedent about money and speech, cash doesn’t actually have rights, and thus, the rightful owner has to prove that the cash is INNOCENT before he can take rightful possession. (In case you don’t believe me, check out civil asset forfeiture). As a result, the cops almost always win said cases and will frequently fund themselves by robbing those who can’t afford good lawyers (and shame on the lawyers who happily help the cops in this). As a result, those who should be funding such entities often get their cake (services) and eat it too (hey, it’s funded FOR ME). Yay!

    In this way, the system is still set up to make Americans feel good about that whole happiness nonsense, while being deprived of real (or intellectual) property despite their hard work and overblown status as “equal.” I mean, they’re Americans, they’re supposed to happy despite being deprived of life, liberty AND property, right. (Sarcasm, if you haven’t recognized it).

    It’s no wonder that the opportunistic looting happened. Their life, liberty, and even the pursuit of happiness has been controlled by more powerful people all their lives. Why not take a few things? It’s not like they instituted the Code of Hammurabi. Though, I wouldn’t blame them if they did.

    Oh, yes, the government does play favorites. And I’m always amused when the beneficiaries are surprised when they notice it, and then pretend they’re the victims. Don’t get me wrong, I support strong IP rights. But let’s not pretend that the courts and the government are taking them away generically. There are winners and there are losers. If you want to stand up for IP rights, you’d better be prepared to stand up for the losers in all aspects of property rights, too.

  • [Avatar for anonymous]
    July 8, 2020 01:18 pm

    A patent is property. The law clearly says it. Senator Coons said it in committee. Congress intended it and continues to intend it. The Supreme Court got it wrong in Oil States saying otherwise and ignored 35 USC § 261 which already states “patents shall have the attributes of personal property”.

    The “right to maintain exclusivity” over one’s property is “a hallmark and crucial guarantee of patent rights deriving from the Constitution itself.” Apple v. Samsung, 801 F.3d 1355, 1365 (Fed. Cir. 2015).

    Perhaps we need the “A Patent Is Property Act” to clarify basic principles that a patent is property and that property is good. A copy can be found here: https://drive.google.com/file/d/1USR84UuWwOM6Vs17rV7qjCS4aDWlFu0p/view?usp=sharing

    I hate to cross-post, but there was a robust discussion of patents as property rights here: https://patentlyo.com/patent/2020/01/property-efficient-infringement.html

    And here, we discussed the property right in the context of a failure to grant injunction after a finding of infringement: https://www.ipwatchdog.com/2020/02/16/ebay-v-mercexchange-wont-overruled/id=118929/

    SCOTUS in Kelo recognized, “[I]t has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.” See, Kelo v. City of New London, 545 U.S. 469 (2005). It seems as though we’re back to debating this principle, but in the context of patent infringement.

    I think it is important to note the Takings Clause of the Fifth Amendment states that private property shall not “be taken for public use, without just compensation.” The Supreme Court said in Oil States, “our decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause.” Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1379 (2018).

    If property rights go, so too does the United States. It will be a war of only words no longer.

  • [Avatar for Ternary]
    July 8, 2020 01:11 pm

    Why blame “marxism” or “socialism” for our current state of affairs in patents? It is good old capitalism that rigs the system, as it always does. What are we to make of the Marxist tendencies of SCOTUS with “conservative” Justices delivering the decision and concurring in eBay and Oil States? And let’s not bring up Alice, another great “conservative” piece of work.

    It is us, no one else, who is doing this to us. All to protect a narrow slice of interest, to cement the status-quo. Remember Darrell Issa? Certainly not a born-again Marxist or a left-wing liberal.

    Anyone who believes that the liberals are to blame and salvation in patent law will come from the conservative right is suffering from ideological delusion.

    Seeing is believing. I am an old school logical positivist (look it up, you may learn something), a group that suffered and continues to suffer from ultra-right and ultra-left ideologists. So far, despite all patriotic talk about the Constitution and the role of STEM and the need for more science and all that crap, I have seen zilch, nothing, bupkis, from any party that in any way actually improves the value of a patent.

    In fact, it is the combined SCOTUS/Courts with a do nothing Congress that bulldozes our patent system slowly but certainly into the abyss. We know it. And we see it happening in real-time.

    So, puhleeze, don’t tell me this is the doing of the Marxists while the ones in power are wrecking the system.

  • [Avatar for Anon2]
    July 8, 2020 01:08 pm

    Someone once observed:

    “The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.”

    [Of course there are those who disclaim the concept of rights entirely, preferring the concept of State granted permissions… such sentiments however are antithetical to America as it was originally conceived and the moral revolution it represents.]

  • [Avatar for Anon]
    July 8, 2020 10:26 am

    Mr. Rushford,

    Left Liberals need to remember that even liberals will “get the bullet.”

    Quite in fact, the ‘older guard’ of the Left is often the first to receive that ‘gift.’

    (something shown time and again in history)

    It IS interesting to note that ‘property’ qua property may have been changed by Jefferson in view of the larger aims of the American Revolution, but that Lockean thought STILL pervaded the great US patent change – which means that from an historical basis, the foundation of US patent law is very much a tied-to-fundamental-right-of-property basis.

  • [Avatar for Francis Rushford]
    Francis Rushford
    July 8, 2020 09:06 am

    I think the article starts with Napster, but it goes back further in modern times with Silicon Valley and the Traitorous Eight and how no patent was ever valid in the 9th Circuit. The anti-patent arguments from Silicon Valley have not changed in 60 years.

    As for real property, that has gone back and forth, but even psychopaths like the Mayor of Seattle loved her $7M house, while she was okay with the destruction of the property of others.

    The US may have won the Cold War but the Marxists never left education and took it over and won the cultural war. Education today is mostly propaganda and brainwashing. One is not permitted to challenge dogma and opinion has become facts. The love of the French Revolution and the Reign of Terror by Marxists is all one has to remember.

  • [Avatar for Stephen Potter]
    Stephen Potter
    July 8, 2020 05:07 am

    Well said, Gene!

  • [Avatar for MaxDrei]
    July 8, 2020 02:52 am

    It’s when private property is what is interfering with “life, liberty and the pursuit of happiness” that the debate gets heated. The current monitoring of mortality statistics, who dies from COVID-19, country by country, is inflaming the issue. In the opening words of the Constitution, it is I suspect the invocation of “the pursuit of happiness” rather than property which has made them so resonant ever since. Compare the opening declaratory words of the modern Constitution of Germany, that the dignity of the human being is inviolable. First things first, eh?

    Below is a Link to a newly published book, now a best-seller at least here in Germany, which prompts reflection on the role of “private property” in the development of human societies.


  • [Avatar for SC]
    July 7, 2020 10:39 pm

    Are there any pending bills in Congress to help inventors?

  • [Avatar for Bemused]
    July 7, 2020 09:26 pm

    Gene, to the “woke” crowd (which includes many of the black-robed and anti-patent academic useful idiots) private property is an anachronistic form of ownership incompatible with socialism.

    We pretend that the destruction of the U.S. patent system these past 15 years is result of the misguided failings of the judiciary and the legislative branches. However, the reality is that eviscerating patent rights is part and parcel of the leftward march of certain segments of the body politic.

    Too political a statement for an IP blog? Perhaps. But I’m just calling it as I see it.

  • [Avatar for Night Writer]
    Night Writer
    July 7, 2020 07:57 pm

    I think this has to be looked at in the context of trade secrets and the end of anti-trust laws.

  • [Avatar for Pro Say]
    Pro Say
    July 7, 2020 07:52 pm

    “All your property are belong to us.”

    — SCOTUS

  • [Avatar for Anon]
    July 7, 2020 06:41 pm

    America should also take this opportunity to have a broader conversation about private property rights— real, personal and intangible.

    Fair warning: this will not be received well — precisely because it is NOT ‘on topic’ or part of a desired narrative. You will be charged (if you are lucky) with being disconnected with the ‘real issues.’ If not so lucky, you may be ‘tarred’ as being PART OF THE PROBLEM or having some type of ISM motive (or another) because you want to talk about something else.

    As for why property is being diminished, it is no secret as to which political philosophy (and the major thrust of that group BEFORE identity politics was taken up) has that as a lynchpin.

    The advent of this DOES go back many years. One can pick this up rather easily by reading up on Neo Liberalism.