Is the Constitution the Roadblock to Meaningful Patent Reform?

By Anthony S. Volpe
Special to the Legal

The issue of patent reform and the enforcement of the rights afforded by patents has been making headlines. The make-up of the forces lining up on opposite sides of the issue are not predictable. But, predictably, each side is attacking the other for its self-serving view of how the reform should proceed. With this fight in mind, is it possible that the Constitution has built into its genius the very root of the problem?

The Constitution is clear: Congress has the power under Article 1, Section 8  “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.” Since there is no further definition of how this is to be achieved, it is left to the legislative process to provide the statutory framework to accomplish this mandate.

If it stopped at that point, getting the statutory framework in place may not be a problem. However, there is the not-so-small matter of the first 10 amendments to the Constitution, commonly known as the "Bill of Rights," which was required to gain passage of the document. The First Amendment is a prohibition against government power that states, "Congress shall make no law … abridging the freedom of speech or the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So, as the nation goes forth, the people get to weigh in on how the Congress should do its job.

As expected, individuals, companies, PACs, lobbyists, trade organizations and the like have chosen sides and there is a virtual First Amendment war of words over the alleged reforms. Each side is sure the other side's view will spell the end of American innovation. Each plainly ignores the fact that more U.S. patents now issue to foreign inventors than U.S. inventors, and many patents with U.S. corporate inventors are assigned to foreign parent companies. 

Many will point to the fact that the U.S. Patent and Trademark Office recently issued Patent Number 8,000,000 as proof that the current system is working. While the system is working in the sense that the PTO is doing its job, that is only one element of the whole patent system. The validity and enforceability of the patent is as critical as the issuance. In the present environment, there is huge uncertainty over issues as basic as what is patentable and how patents will be construed in the courts. The need for certainty in the patent world is critical. Everyone is reluctant to invest in innovation when the rewards are uncertain and the rules shift with the political winds.

Since the recent debt ceiling debate confirmed that the members of Congress will line upon the side of the First Amendment money that funds their campaigns, I predict that we will not get patent reform in a reasoned fashion. Instead, we will get the usual First Amendment blend of compromises that does little to add to the needed certainty.

Anthony S. Volpe is a founding partner of Volpe & Koenig. He can be reached at [email protected].

Comments

[Tony Volpe]

I think you make a distinction without difference. If you cannot define a strategy for protecting the innovation, there is a reluctance to invest in innovation.

[Klaus Brondum]

"Everyone is reluctant to invest in innovation when the rewards are uncertain and the rules shift with the political winds."

I don't thinks so - innovation is a given. What is uncertain is the innovation protection strategy to pursue to protect your investment in innovation.