Posted on 08/27/2015 11:31:00 AM PDT by Kaslin
What do you call someone who supports Federal bureaucrats granting rights out of thin air, judges legislating from the bench about how those rights work, and spreads terror about technological progress (along with derogatory comparisons to Uber)?
Sadly, some people seem to think you should call them “conservatives.”
At least, that’s the only thing I can get out of looking at the so-called conservative opposition to patent reform, which just this week added yet more confusion to the debate when a group calling itself the Conservative Action Project put out a letter slamming the two major patent reform bills making their way through the House and Senate currently.
It’s truly sad that this document could garner the signatures of the likes of Ed Meese and Club for Growth President David McIntosh, because as written, its concerns over patent reform are utterly contentless. It’s hard to talk of refuting arguments, when the arguments as presented mean nothing, but I will try for the sake of clarity.
The letter begins by trumpeting the degree to which the Founding Fathers believed in patent rights, citing Article I, section 8 of the Constitution. Fun fact: The word “patent” appears nowhere in the Constitution, in Article I, section 8, or otherwise. However, it is true that section 8 lists one of the duties of Congress as follows:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Note a few things about this passage. Firstly, it explicitly states that the purpose of granting inventors their rights is to “promote the Progress of Science and useful Arts.” So if we’re to judge patent law as the Founders intended, we should also judge it by that standard. We’ll come back to that, because it’s a standard that current patent law conspicuously and dismally fails.
Secondly, note that this appears in a list of duties of Congress. We’ll also come back to that, because it flies in the face of both our current patent system, and the objections raised by the authors of the letter.
The letter then goes on to warn against the danger of “sweeping” legislation, citing Dodd-Frank and Obamacare, and yes, these are both bad laws. However, the letter’s subsequent assertion that the PATENT Act and Innovation Act – the two major patent reform bills currently advancing through the House and Senate – are similarly destructive laws is presented without any support. And small wonder, because these bills have almost nothing in common with Dodd-Frank or Obamacare.
For starters, Republicans didn’t author Dodd-Frank or Obamacare, nor did Republican leadership or Republican members of Congress support them. Both Dodd-Frank and Obamacare were supported by trial lawyers, who hate Patent Reform, so much so that they forced Harry Reid to block the idea in the last Congress. And as for the Patent Reform bills being the same because they’re “sweeping?” Well, by that standard, Ronald Reagan’s radical simplification of the tax code during his first term should be considered an Obamacare-esque disaster. It wasn’t, and neither are these bills.
The next argument the letter makes is that the bill is crony capitalism because it would make the cost of acquiring patents lower for companies like Google. There is not a single part of this argument that makes any sense. For starters, the cost of acquiring patents is only a few thousand dollars per patent, and with 89 percent of patent applications being approved by the US Patent and Trademark Office with barely any scrutiny as to their actual value or feasibility, that makes acquiring monopoly rights on even basic ideas ludicrously easy.
The cost of challenging a patent, however, according to Newegg General Counsel Lee Cheng, can cost as much as $200,000, and that’s before you even reach the appeals process. And this is the problem that companies like Google – which is one of the most frequent targets of patent trolls – have. They are constantly hit with frivolous lawsuit threats by people who claim to own “ideas” that they never made any steps to actually invent, while Google is actually inventing them. To put that in perspective, imagine someone had patented flight in the 1850s, then sat on it until the Wright Brothers came along, at which point they sued. In all probability, the airplane never would’ve existed. Thank heaven that patent law didn’t work then the way it does now.
The letter then claims that because people like Dana Rohrabacher and Ted Cruz oppose the current patent reform bills, they must be bad. Cruz’s opposition, as stated, echoes common, misplaced concerns about patent reform allowing the hypothetical inventor tinkering in his garage, even though no study exists showing that such people are the primary beneficiaries of the current patent system. And as for Rohrabacher? Well, Acacia Research, described by IPWatchdog as “the mother of all patent trolls,” is located in Rohrabacher’s district, and is among the top 20 donors to Rohrabacher. What was that about crony capitalism, again?
Finally, the letter gets to its only real argument, which is that Congress already addressed this issue, and that the courts are doing it better, anyway. True, the Supreme Court has made challenging patents easier in cases like Alice v. CLS Bank. But that hasn’t stopped rogue pro-patent troll judges like Rodney Gilstrap of East Texas from throwing up dubiously legal roadblocks to using the remedies set forth in Alice. Small wonder that patent troll lawsuits in courts like Gilstrap’s are at a record high.
Not to mention, courts can only tackle specific cases, which by its very nature means that all court decisions come with loopholes. This means that trying to defeat patent trolls through the courts would be a very expensive, time-consuming game of whack-a-mole, unless judges decided to step outside their usual limited role and issue sweeping rulings. In other words, the only way to solve this problem without Congress’ intervention is for judges to legislate from the bench.
Not only does this fly in the face of conservative legal doctrine; it also flies in the face of Article I. Section 8 of the Constitution, which grants the power over patents to Congress, and Congress alone. Spoiler alert: Neither the US Patent and Trademark Office (USPTO), which is part of the Department of Commerce, nor the court system, are even in the same branch of government as Congress. And contrary to the slander of letters like this, bills like the Innovation Act are not sweeping regulatory boondoggles like Obamacare or Dodd-Frank, which tie the economy up in socialistic red tape. Rather, they are reforms designed to eliminate the legal processes that patent trolls abuse and stop the underresourced, understaffed PTO from granting monopoly rights over “ideas” that aren’t worth the paper they’re printed on.
In short, Patent Reform will do something that conservatives have done since the days of William F. Buckley, Jr: It will stop people from pleading the case for bad ideas. It is a terrible shame that so many so-called “conservatives” are pleading that exact case.
Wrong. The patent would be out of time, aka expired by 1870 (20 years). The Wright Brothers did apply for their patent in 1906.
And spent the rest of their lives suing everybody who tried to market an airplane. The US had no aircraft industry when it entered WWI because of this.
Speaking of content, this article doesn’t have much.
Besides Meese and Cruz, whose judgment on such issues I trust more than Mytheos Holt’s, Physllis Schlafly was railing against this stuff decades ago.
Yes, there are problems in the current system, and they show up especially in IT. That doesn’t mean a “sweeping reform” won’t be worse. I am not for sweeping ANYTHING while Obama is president.
Google "Wright brothers patent" to see how that actually turned out, and how the Wrights did their damnedest to prevent successful aircraft from being built, using our patent system.
That is because the competition (Curtis) tried to profit off of the technology by selling planes WITHOUT paying the royalties. When WWI broke out, it was the government that forced the payment of fees in exchange for a cross licensing agreement. I would also note that until WWI, there was not a systemic demand for aircraft as they were still very novel devices.
I got the same result using DuckDuckGo
I refuse to use Google
In other words, the patent system retarded the development of the industry - exactly the opposite of what its defenders claim it does.
Airplanes weren't so novel that the French, British, and Germans couldn't deploy them almost as soon as the war started. We had three years to prepare for a war Wilson knew we were going to enter and still had no aircraft industry. The Wright brother's patent is the reason why.
The article is about proposed legislation that would curtail the practice of patent trolling. That's good. Patent trolls are a drag on the economy. But patent trolls are not the worst actors in the patent system. They don't want to put anybody out of business. They just want a piece of the producer's action. Their effect is similar to a tax. The real economic deadweights are the practicing patent holders. They want to shut their competition down and operate as monopolies.
Not only do we need patent reform, we also need copyright reform to bring copyright duration back in line with patents.
Quite the opposite.
The Wright Brothers got into flight and one of their motivations was PROFIT. Likewise Curtis got into the business for PROFIT. It is the assurance that one can PROFIT without the theft of their ideas that spurs people to make the investment of toil and tears to make something new in the first place.
We could have easily had an aircraft industry had any of the manufactures agreed to the royalties. The blame you place on patents should instead be placed on those that want to benefit from other’s work.
And yes, I am an patent inventor.
Copyright also needs to be moved back to the original 14 years with an additional one-time renewal of 14 years. Today's copyright is insane.
BS. That is the sort of argument every monopolist claims. Yet they never offer any proof. The profit motive was driving men to innovate long before patents came along. It is profit and not patents which drives innovation. Patents slow down innovation and drive innovation in non-productive directions.
A free, fair, and rational market does not offer any "assurances" of profit.
I agree. The last sweeping "reform", the America Invents Act (AIA), moved us from a first-to-invent to a first-to-file regime. This really hurt individual inventors and small companies. Big companies love it.
The simple proof is the number of inventions that have been made in the US vs the rest of the world.
So...
Being protected by two oceans had nothing to do with that?
Having the largest free trade area in the world didn't do it?
Having one of the best systems of navigable waterways on any country in the world or vast abundant natural resources including oil and gas didn't do it.
Being untouched by all of the major wars of the last century and a half - that had nothing to do with it.
Having been spared from most of the lunatic central planing schemes that our trading partners have succumbed to wasn't a factor?
It was all the result of our wonderful patent system?
Do try to be serious. The patent system is and has always been a massive drag on innovation. It is simply a system of government monopolies - a holdover from the age of mercantilism, and in no way a free market institution.
Those are contributing factors, certainly. But so is the motivation to not have anyone steal your ideas.
I am being serious. The patent system is one of the greatest inventions of mankind and has prompted not only original inventions but has created refinements to original patents that has greatly improved products. Patents have not been a drag on innovation. They have only been a drag on lesser men who wish to profit from the innovation of others, who do not want to compensate the innovator.
You have your opinion, I have mine. I do not think either will change the other’s mind. Lets just agree to disagree.
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