State of Innovation

Patents and Innovation Economics

52 Courageous Congressmen Question Constitutionality of America Invents Act

The House Rules Committee has asked for 20 minutes of debate on the Constitutionality of H.R. 1249.  To see the letter click here.

June 8, 2011 - Posted by | Patents

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  1. Personally, I think this is a big waste of time since nothing in the Constitution explicitly requires Congress to “secure” a priority for the first person to conceive and diligently reduce to actual or constructive practice a specific invention.

    This is a policy issue, not a Constitutional issue.

    Do we in America want, as a matter of policy, a run-run-fast-as-you-can to the Paper Pushing Office way of doing things, or do we want a system where inventors stye in the laboratory (or tinkerer’s garage) and keep working on a better way of carrying out the invention (the better mode)?

    In the past, those who understood inventions (e.g. Judge Giles Rich, author of the 1952 Act) decided that finding of and disclosure of “the best mode” was a valuable thing to have.

    Comment by step back | June 9, 2011 | Reply

    • Stepback,

      i disagree. The Constitution clearly requires Congress to secure the rights of inventors, when the Constitution is interpreted in historical context.

      Some people are suggesting that Congress has the power to abolish patents and copyrights in the United States. The argument is that Article 1, Section 8, Clause 8 of the Constitution states “The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries” and whether they exercise this power is optional.

      This interpretation relies on the idea that when Congress is granted a Power it is unlimited. The United States was founded on the idea that Government power is not unlimited like the Devine Right of Kings. The United States was founded on the idea that powers of government are limited and come with duties, while Rights of citizens are unlimited and do not come with duties. I know this will come as a shock to those people raised on the modern liberal interpretation, which wants unlimited powers for government and sees the Bill of Rights as a list of negative rights – see Barack Obama. Congress, under Article 1, Section 8 also has the power to set “an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” This is not optional on the part of Congress, with the power comes the duty to establish these rules.

      The interpretation of the Constitution that suggests Congress has the option to establish systems to protect inventors’ and authors’ rights is totally inconsistent with the history of the Constitution. The purpose of the Constitution was to set out the powers of the federal government. Article 1, Section 8 lists the powers but also the responsibilities of Congress. For instance, even the power to declare war comes with the responsibility to do so when the U.S. is under attack from foreign powers.

      How do we know that Congress has the duty to protect the “Rights” of inventors and authors? Because the Declaration of Independence say so:

      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. — That to secure these rights, Governments are instituted among Men,

      It is well known that the unalienable Rights of the Declaration of Independence are the Natural Rights of Locke – Life, Liberty, and Property. Many people believe that Jefferson changed property to the pursuit of happiness because he was worried it would be interpreted as endorsing slavery. When the Founders used the word “right” they meant natural rights. The purpose of government is to secure these rights. When the Constitution states that inventors and authors have “Rights” in their creations, they mean natural rights and they understood that the purpose of governments was to secure these rights. This means that Congress has a duty to secure the rights of inventors and authors under Article 1, Section 8, Clause 8. If the words patent and copyright are meant as rights in inventions and writing, then it is clear Congress does not have the option of eliminating them. It is also clear that patents and copyrights are not limited by the preamble. Natural rights are not utilitarian, but are endowed on men by their Creator.

      Comment by dbhalling | June 10, 2011 | Reply

  2. Hello again Dale,

    We are in agreement on the end result, namely, that as a matter of public policy, the US Congress should provide strong incentive and protection to inventors so that inventors are encouraged to continue inventing and developing and improving on their inventions as opposed to being discouraged and pushed towards not inventing at all or towards keeping “their” inventions as trade secrets.

    When it comes to your libertarian-based interpretation of the US Constitution however, that is where we respectfully part company. Nothing in Art.1 , sect. 8, cl. 8 says “property” rights. It just says “rights”. Congress could, if it chooses to act in its infinite dumbness rather than wisdom, interpret that word “rights” to mean right of attribution and nothing more. In other words, if you invent something you get an exclusive right of attribution with respect to “your” invention of a thing and other inventors of the same or similar thing get a right of exclusive attribution to “their” respective inventions. But nothing more.

    Or, if Congress elects to become even more Draconian, they could choose to not at all exercise their power under Art.1 , sect. 8, cl. 8. Nothing in the Constitution says that Congress “must” promote the progress of science and the useful arts.

    Let’s hope it never goes that far. But arguing the Constitutionality of HR 1249 seems to me to be a red herring and a waste of time, unless perhaps you want to assert that Congress is blocked from “demoting” the progress of science and the useful art, and even that angle is a dangerous and slippery one to head down.

    Comment by step back | June 12, 2011 | Reply

    • Stepback,

      You are wrong on two counts. First Congress cannot provided rights in an invention to non-inventors. They can only secure the rights of inventors, which make the America Invents Act unconstitutional. Second, the word RIGHT has a very specific meaning in this context. It does not mean right of attribution, this is not Alice in Wonderland – words have meanings and the word RIGHT when used in the Constitution meant natural right. Congress does not have an option to secure a Natural Right that is why the US was founded – to secure these rights.

      Comment by dbhalling | June 12, 2011 | Reply

  3. Dale,

    With due respect to my fellow counselor, you prove with your own argument that words are like noses of wax, amenable to be twisted by him who speaks them.

    You choose to see the words “exclusive rights” in Art.1, sect. 8, cl. 8 as meaning NATURAL rights when in fact the Constitution speaks no such words. You also choose to see Nature as providing territorial rights in land and chattels to certain deserving people (which by the way, in Founding Father times did not include women or people of color). These are all arbitrary choices made by the speaker. There is no factual basis of support for these positions. They are purely ideological.

    I’m not sure what definition you attach to the word “inventor”. However, even under current law, if the very first human being to invent something does not share it but rather keeps it a secret then no one knows he was the truly first to invent. When the second independent inventor comes along and shares it, then that second inventor is first in so far as society can know. That’s simple logic.

    In either case, we share the same ultimate goal of wanting to see strong incentive and protection for those who have the courage to go out on the limb and try to invent. Peace.

    Comment by step back | June 12, 2011 | Reply

    • Setpback,

      My choice is not arbitrary – it is the historical context of the words. Read the Declaration of Independence.

      An inventor is the one who creates an invention, not the first person to file a patent application under any rational definition of invention. Yes, the present law allows one who is not the inventor in the sense of being the first to create to secure title to an invention. But only if the inventor fails to secure their rights and only if the person to file the patent application is a creator. Being the first person to file provides no rights to an invention. The reason our law allows a subsequent creator to obtain a patent is because the inventor in having abandoned the invention has given up any property right claim they had in the invention. The same is true if I discard my car, or other personal property, or the concept of adverse possession – where someone abandons their real property.

      Comment by dbhalling | June 12, 2011 | Reply

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