The International IP Commercialization Council (IIPCC) held an event entitled Promoting Innovation, Investment and Job Growth by Fixing America’s Patent System. The event, held in the basement of the U.S. Capitol, featured many speakers and panelists who discussed various issues with the current state of the U.S. patent system and how those issues were reducing the nation’s overall investment into research & development (R&D) and overall innovation. Much of this has to do with the “patent troll” narrative that has been forwarded by the efficient infringement lobby. As Sen. Dick Durbin (D-IL) pointed out at a recent Senate judiciary hearing on intellectual property as a driver of innovation, “whoever came up with that phrase
[patent troll] should get a special bonus” because it has created a massive mischaracterization of patent owners asserting their rights.
Why patents considered property?
The U.S. Supreme Court has for over 100 years recognized patents property rights as having an equivalency with real estate property rights. On at least several occasions during the nineteenth century the Supreme Court unambiguously said that a patent for either invention or land, once issued, is private property. Indeed, the right to private property is something explicitly enshrined by the U.S. Constitution, a document not particularly known for its length or specificity. So why patents aren’t considered property by critics of the patent system? Why are those who are seeking to exercise what are supposed to be property rights that are statutorily presumed valid considered villains instead of those who are trampling on those property rights? The first panel of the day during the IIPCC event included Bob Pavey, partner emeritus at Morgenthaler Ventures and former chairman of the National Venture Capital Association (NVCA). In his opening remarks, Pavey offered an analogy for the current state of IP rights, which should register with any American who owns real estate or is contemplating the purchase of a home in the years to come.
Seconded viewpoint
Other panel members seconded this viewpoint. Marshall Phelps, former VP of IP for Microsoft and IBM and current vice chairman of the Center for IP Understanding (CIPU), noted that “when faced with that question, if you own a house, can anyone walk into that house? That’s another form of property right.” Laurie Self, VP and counsel for governmental affairs at Qualcomm, added that intellectual property was “intended by our founders to be treated in parity with real property.” She added that the idea that intellectual property was much different than other property rights is a foreign concept which has been injected into the current debate. “That’s not at all what was intended,” Self said.
Whealan’s viewpoint
John Whealan, former deputy general counsel for IP law and USPTO solicitor and currently the associate dean for IP law at George Washington University, echoed this sentiment on the parallels between real estate property rights and intellectual property rights. Whealan noted that home ownership required title searches to prove that the property could be legally sold, somewhat similar to how patent applications require a prosecution period with an office examiner to make sure that the claims are patentable in the face of prior art. “What if I show up to your home and tell you, ‘I don’t think that you own this house’? If you pay the administrative costs but two-thirds of those titles are invalid, you won’t buy the house, you’ll rent,” Whealan said. Those hypothetical two-thirds of titles which are invalid references the two-thirds of challenged patents found to be invalid.
Concluded
If there are any trolls in the U.S. patent system, the IIPCC event made it clear that the true trolls are the giants taking concerted actions to weaken the U.S. patent system to the detriment of small inventors. If the American economy is to return to the innovation economy ,which has made this country great, control of the patent system needs to be wrested from the tech oligarchy and balance must be restored so that individual innovators and startups have a much greater chance to survive. Without the proper balance, American innovation will no longer come from a robust collection of property owners but, rather, a small group of sovereign tech monarchs who rule over serfdom of companies who practice technology, but only with the express consent of the kings.
