Our Founding Fathers cared deeply about property rights. They knew no society could be truly free without them. But they went a step further by recognizing the rights of mankind not only to property ownership, but also to the dignity of one’s own ideas. So they harkened to a system established a few millennia earlier: the patent.
The first known patent was issued in ancient Greece in the sixth century B.C. Since then, inventors, artists, scholars and researchers around the world have patented countless innovations that have improved, enhanced and extended our lives.
The architects of the U.S. Constitution reaffirmed the liberties outlined in the Magna Carta of 1215. Chief among these were property rights. The Fifth Amendment powerfully guarantees the right to property ownership, commanding that, “nor [shall a person] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
As a result, the sanctity of the patent is detailed in great specificity in the U.S. Constitution. In Article 1, Section 8, the founders wrote that the U.S. Congress maintained the authority 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.”
Today, lawmakers face real political pressure from major corporations to eliminate the property rights of others for their own financial benefit. Quite frankly, many lawmakers have been fooled into going along with it. Under the banner of legal reform and modernizing our patent system, House Republicans in the last Congress passed the Innovation Act, a total restructuring of the way our patent system works. Rep. Bob Goodlatte, Virginia Republican and chairman of the House Judiciary Committee, proposed this measure again during the 114th Congress, and it is expected that the Republican majority in the U.S. Senate will take it up as well.
While well-intentioned, their efforts would make it more difficult for inventors, researchers, universities and job-creating companies to take legal action against those who steal their ideas by violating their patents.
The proponents — principally giant technology companies — argue that their version of patent reform is a significant step toward tort reform, which ultimately would put an end to lawsuit abuse and open markets to greater innovation. What they really want is to devalue patents by making them harder to defend so they can use them at artificially discounted prices. This approach would support their innovations in the short run. Over time, however, the patents they rely on would dwindle from a river to a small stream.
Conservatives agree that unnecessary litigation, like excessive regulation and a punitive tax code, makes it difficult for companies and our economy at large to grow. In reality, this legislation would totally thwart legitimate legal action these patent holders are entitled to pursue.
When a woman returns to her car to find it missing, she notifies the cops. When intellectual property is stolen, the patent holder must turn to the courts. There are no police for patents. The Innovation Act would establish unreasonable standards for patent holders to meet in order to shield themselves and their work from theft. By restricting access to the justice system, which this sweeping overhaul would regrettably but undeniably do, Congress would be in direct contradiction to the very mandate laid out for them in the Constitution.
As a practical matter, the Innovation Act is just bad policy. This legislation would transform our intellectual property rights more into those like China’s than those we value in the U.S.
The Innovation Act is also a solution in search of a problem. From September 2013 to September 2014, there was a 40 percent reduction in patent-related lawsuits. At a time when patent litigation is down, why would Congress pass a giant bill that would make intellectual property protection more complicated, and therefore, more expensive?
Americans also have experienced the consequences of comprehensive legislation that takes a bulldozer to entire industries, most recently with the total Democratic takeovers of Obamacare and Dodd-Frank. It appears that this time it’s Republicans who would be responsible for destructive one-size-fits-all legislation that causes more problems than it solves.
That’s not to say that meaningful, targeted reforms aren’t necessary and can’t be accomplished. Lawmakers should thoughtfully examine how we can ease the regulatory burden that affects businesses both large and small. This would certainly include improving the patenting process.
But any legislation that would restructure our patent system must consider the constitutionally guaranteed property rights of patent holders who lawfully obtain them to protect their ideas and their work. The bill in its current form fails to do that.
• C. Boyden Gray was White House counsel for President George H.W. Bush. He also has served as U.S. ambassador to the European Union.
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