The Categorical Imperative for Innovation and Patenting

The political theories of John Locke, Jean-Jacques Rousseau, Montesquieu and others greatly influenced our Founders in the creation of our nation, as well as our patent system. In particular, Locke’s political philosophy included the maxim that a person’s property or fruit of their labors should be protected by their government. James Madison, the father of the Constitution, and others inculcated this viewpoint of a patent system into the fabric of our nascent nation. Indeed, the only “Right” mentioned within the text of the Constitution is the right to secure protections under patent and copyright. The other Rights, i.e., Freedom of Religion, Security in One’s Home from Unreasonable Searches and Seizures, etc., are set forth in the attached Bill of Rights.

Despite the clear language of the Constitution, the Federalist Papers and other writings that the Lockean “natural rights” view governs, some academics try to decry this approach, and turn to other philosophies, such as John Stuart Mills’ Utilitarianism, to either bolster or undermine the usefulness of a patent system, usually undermine. Born thirty years after the creation of the United States (and nearly twenty years after the Constitution), Mill wrote extensively on individual liberty, freedom, logic and other issues, and is chiefly known for his principle of utilitarianism, the greatest good for the greatest number. His maxims are many, including “Originality is the one thing that unoriginal minds cannot feel the use of.”

But there was another philosopher, contemporaneous with the Founders, that bears notice, Immanuel Kant, who had a different take on moral and political philosophy, including the Categorical Imperative. Kant spent his life trying to distill the issues of morality into a logical framework. Just as the natural scientists of the Enlightenment were forming logical arguments concerning the physical world, e.g., physics, natural science and other disciplines, Kant tried to do the same with human morality: systematize it.

In his Categorical Imperative, Kant simplifies a moral argument position for an individual by asking a question: if you thought that your position or Statement would be Universal, i.e., applicable to all people, it would have the stance of a Categorical Imperative and thus you must do it. For example, a Statement that I should try to save a person that is drowning can be considered a Categorical Imperative since this would be a betterment of humanity.

However, the proposition or Statement that it should be ok for me to steal another’s car is not a betterment at all. Applying this as a universal law would lead to societal chaos and possible collapse since thievery would reign, and anarchy would result. Since the entire purpose of government is the protection of people (and their possessions), this Statement fails, and you are NOT compelled to act in that manner. This Statement does not rise to the level of a categorical Imperative.

Intellectual property has been attacked of late on various grounds, including being less than property, and thus not entitled to the protections of the Constitution, despite the evidence to the contrary. This attitude is most recently, and most troublingly, exemplified by the U.S. Supreme Court in Oil States, where the Court equated patent rights to taxicab medallion rights. Freeriding is also being touted, subverting copyright law. Information must be free is the mantra.

As we shall see, applying Kantian logic entails first acknowledging some basic principles; that the people have a right to express themselves, that that expression (the fruits of their labor) has value and is theirs (unless consent is given otherwise), and that government is obligated to protect people and their property. Thus, an inventor or creator has a right in their own creation, which cannot be taken from them without their consent.

So, employing this canon, a proposed Categorical Imperative (CI) is the following Statement: creators should be protected against the unlawful taking of their creation by others. Applying this Statement to everyone, i.e., does the Statement hold water if everyone does this, leads to a yes determination. Whether a child, a book or a prototype, creations of all sorts should be protected, and this CI stands. This result also dovetails with the purpose of government: to protect the people and their possessions by providing laws to that effect, whether for the protection of tangible or intangible things.

However, a contrary proposal can be postulated: everyone should be able to use the creations of another without charge. Can this Statement rise to the level of a CI? This proposal, upon analysis would also lead to chaos. Hollywood, for example, unable to protect their films, television shows or any content, would either be out of business or have robust encryption and other trade secret protections, which would seriously undermine content distribution and consumer enjoyment. Likewise, inventors, unable to license or sell their innovations or make any money to cover R&D, would not bother to invent or also resort to strong trade secret. Why even create? This approach thus undermines and greatly hinders the distribution of ideas in a free society, which is contrary to the paradigm of the U.S. patent and copyright systems, which promotes dissemination. By allowing freeriding, innovation and creativity would be thwarted (or at least not encouraged) and trade secret protection would become the mainstay for society with the heightened distrust.

Also, allowing the free taking of ideas, content and valuable data, i.e., the fruits of individual intellectual endeavor, would disrupt capitalism in a radical way. The resulting more secretive approach in support of the above free-riding Statement would be akin to a Communist environment where the State owned everything and the citizen owned nothing, i.e., the people “consented” to this.

It is, accordingly, manifestly clear that no reasonable and supportable Categorical Imperative can be made for the unwarranted theft of property, whether tangible or intangible, apart from legitimate exigencies.

On the positive front, there is a Categorical Imperative that creators should be encouraged to create, which is imminently reasonable and supportable. Likewise, the statement set forth in the Constitution that Congress should pass laws “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” is supportive, as a Categorical Imperative, for the many reasons elucidated two centuries ago by Madison and others, and endorsed by George Washington, Thomas Jefferson, and later by Abraham Lincoln. A Categorical Imperative, universality, however, may be a stretch outside of the United States since other cultures may not treasure the progress of science and the useful arts and freedoms that we Americans do. Nonetheless, it is certainly a supportable proposition in the United States, and even a Categorical Imperative that we must do it!

Turning to issues facing us today, despite the categorical imperative nature of an intellectual property system, some powerful naysayers object to intellectual property per se, but on more fundamental grounds, pecuniary. A large amount of the condemnation of the intellectual property laws over the last decades has been from the big tech companies that would like to use new innovations for their own profit at the expense of the individual inventor. Ignoring the small entrepreneur or inventor is even de rigueur, i.e., most tech companies now have a “sue me” approach to patent infringement, which means openly taking patented technology knowing that a patentee is not likely to have the means to bring a costly litigation. To further undermine small inventors, the big tech companies, at the behest of Congress, instigated onerous administrative proceedings at the Patent Office, where the odds were stacked against patentees, proceedings often called “death squads” due to the very high percentage of patent invalidations.

Indeed, these patent-hostile, monopolistic companies lavishly fund lobbyists to further influence Congress on their behalf to diminish patents, thereby undermining the patent system and the value of patents, and increasing their profit margins with the freeriding. With all of the denunciation of the Chinese for freeloading our IP, we should perhaps look within first to make America great again. To add insult to grave injury these same companies have also supported numerous Supreme Court challenges to further undermine the patent and copyright systems. The recent appointment of Andrei Iancu as the new Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trdemark Office is a harbinger of a possible turning point toward a more positive patent system.

As a result of all of the big tech efforts to destabilize the patent system, the engine of innovation has suffered. To further harm the patent system, the press labels all inventors de facto trolls and thus unworthy. This demonization of inventors by the press has been profound. Gone are the days of an inventor being celebrated for building a better mouse trap or developing a nifty app. Now, even the Wright Brothers and Edison have been brought low, equated to trolls and not respected American innovators.

Immanuel Kant’s dream of systematizing morality is, of course, imprecise, but the meaning is quite clear and analogous to another famous maxim: do unto others as they would do unto you. Kant’s Categorical Imperative and the Bible extort us to be better people and form a better society. If, however, you feel that innovation is trivial and content should be free, then a Categorical Imperative for freeriding may be sane for you, but it fails at the societal level, i.e., universal application would undercut society. It is also wrong to steal. In the balance, society wants new ideas, new stories, new ways of doing things, and newness itself. All of this takes effort and expense, along with ingenuity and creativity, which should be strongly encouraged and not punished.

A Kantian Categorical Imperative to encourage, support and defend the creations protected by intellectual property is manifest. We should not be swayed by the arguments of corporate monoliths desirous of their own wellbeing and not society’s. In connection with his categorical imperative, Kant also believed that we should all “always recognize that human individuals are ends, and do not use them as a means to your end.” In other words, we should value and respect each human being and their contribution to the world. By deliberately or wantonly stealing patented technology from individual inventors, big tech companies treat them as a means to the corporate end, diminishing and dehumanizing the inventor.

Our Founders well knew that human beings create, and that the stuff of that creation has value. The patent and copyright clause, embodied within the Constitution itself, recognizes this need to encourage, facilitate and support the creativity embodied in us all.

 

 

Article also published today on IpWatchdog.com website

Oil States: a Very Slippery Slope

In a narrow but still huge decision today, Oil States Energy Services v. Greene’s Energy Group, the U.S. Supreme Court today relegated patents and challenges to them as more a public, as opposed to a private, right.  Justice Thomas wrote the opinion of the Court that under the “public-rights doctrine” great latitude is accorded  in allowing the adjudication of “public rights” by non-Article III adjudicators, e.g., political appointees.  The Court held that Article III federal judges (life appointment, more independent) are not needed in Inter Partes Review patent challenge proceedings at the USPTO, where a private challenger can seek the invalidation of a patent under the auspices of a USPTO Board, where the “judges” are subject to the Director and other political appointees that “adjudicate” the patent right.  This particular point was made manifest when a former Director allegedly sought to overturn Patent Board decisions not to her liking by appointing more judges to skew the judgment (panel stacking).

Also,  the majority, looking to history, viewed patents, particularly some patent challenges, as not being entitled, under the common law of the 18th century and beyond, to trials  by jury.   Indeed, the Court held that the Patent Clause in the Constitution, at the founding of the patent system, inherently included a contemplation for potential cancellation proceedings.  Even though Justice Gorsuch in his dissent seriously questioned this interpretation, the Court said that the “historical practice” of the courts over the last two centuries does not matter because under the “public-rights doctrine” the USPTO is perfectly ok today.  Thus, with this finding, patentees are also not entitled to jury trials under the Seventh Amendment since there is no private property taking involved.

In the decision, Justice Thomas sought to narrow the conclusion of the Court today to just the constitutionality of these IPR proceedings, and not extend this viewpoint to other contexts of patents, leaving the “private property” notion for some patent rights hanging.  In his dissent, Justice Gorsuch lucidly contested the majority’s viewpoints and the holding, considering it as dispensing “with constitutionally prescribed procedures” for expediency and a “retreat” from constitutional guarantees for citizens.  Indeed, the majority seemed to interpret the jurisprudence and the historical context quite differently than Justice Gorsuch, viewing the case as an administrative correction, as opposed to a patent case.   The injustice of this decision will have enormous ramifications.

However, as a practical matter, the Justices as a whole were perhaps loathe to invalidate IPR and the thousands of Board decisions made so far, and thus instead stretched the Administrative State to now include IPR patent rights, forfeiting the parties’ private patent rights.  As noted in the oral argument, this decision takes patent rights back to the days of supreme rulers, such as Elizabeth I, where the patent “monopoly” is entirely subject to the ruler’s whim, granting and taking, instead of a patent system for creating a protected and secured private property right.  Here, the government giveth and government can taketh away.  Patents are just franchises, like taxi medallions, under the view of the majority.  Our Founders shudder.

With only two Justices viewing patents as private instruments, Gorsuch and Roberts, this does not bode well for the future.  Congress needs to act to fix this.  However, with the insidious influence of the tech lobbyists to squelch private innovation and future technology challenges by any means, it is doubtful that Congress will step up.   Thus, in due course, when the next Court challenge accrues encroaching on patent rights, we will again be faced with a majority of the Justices deeming patents as another administrative right to be curtailed, instead of the special instruments they are for the private citizen to contribute to Society as a whole, as our Founders intended, by getting a short-term incentive to innovate.  Liberal IPR proceedings over the last few years, invalidating many valuable patents, have significantly undermined the importance and value of patents, the consequences for which are being felt by entrepreneurs, inventors and investors for future technologies.  Today’s decision perpetuates this injustice, much to the delight of our world competitors.

With the value of patents being diminished, and today’s decision is a further diminishment, innovation in America is suffering, the next cures for diseases are compromised, the next valuable app is being thwarted, and the American spirit of invention further quelled.  All because a majority of our Justices deem the patent system as something not deserving of constitutional protections, which is in direct conflict with the Court’s own history and jurisprudence.  The only good news of late is the appointment of Andrei Iancu as Director of the USPTO, who is changing the dialogue.  Hopefully, the Justices will consider patentees not as trolls, but as important keystones to our success as a nation.

The Constitutional Foundations of IP – A Natural Rights Perspective

Despite the value of intellectual properties to the United States, there have been numerous efforts of late to curtail those rights, rights which were enacted by our Founders to encourage inventors and creators.  The Constitutionality of some of these rights is now in question, particularly now at the Supreme Court. Randolph May, writer of the recent book “The Constitutional Foundations of Intellectual Property,” will discuss this critical issue from the natural law perspective.  Raymond Van Dyke, IP practitioner and educator, will speak about the importance of IP to society then and now.

This Greater Washington, DC Licensing Executives Society Chapter event is on the evening of July 20, 2017 in Washington, DC.  Here is the event notice: http://www.lesusacanada.org/events/EventDetails.aspx?id=981094&group=160111

With the constitutionality of inter partes proceedings at the Patent Trial and Appeal Board of the USPTO now in question, the issue is quite pertinent, and the consequences quite serious to the patent system.

If in Washington, DC tonight, I hope that you can make it.

Ray, Greater Washington, DC Chapter Chair, LES

(202)378.3903  vandyke@acm.org

 

To Kill a Patent System: What Would Atticus Finch Do?

Last Wednesday I had the privilege to speak about the importance of Intellectual Property in Washington, DC.  As Chair of the Greater Washington, DC Chapter of the Licensing Executives Society, I and a friend, Sanjay Prasad, conducted the Introduction to IP and Licensing Course for LES. Here is the link:  http://www.lesusacanada.org/chapters/usa/washington-dc-chapter/march-11-2015-washington-dc-chapter-ip-licensing-basics

The Course is a good introduction to the mechanics of licensing of IP assets.  Please contact me or LES (www.les,org) to learn more about these programs which explore many more and advanced licensing topics.

That evening, I also spoke, with guest Todd Dickinson, on the ongoing challenges to the U.S. patent system in a talk called “To Kill a Patent System; What Would Atticus Finch Do?.”  Here is the link:  http://www.lesusacanada.org/chapters/usa/washington-dc-chapter/march-11-2015-washington-dc-chapter-meeting

Current bills in the House and Senate aim to impair and perhaps destroy key components of the U.S. patent system – through intended and perhaps unintended consequences.  Even though lobbyists for several tech companies are actively pushing for ways to gut the patent system, hopefully Congress can see beyond the hyperbole.  Under the guise of troll killing, these errant knights may instead kill the lifeblood of the nation.

In short, contact your Congressional representatives and urge them to exercise caution. The current quest or zeal for patent reform should not run amok, as the Fourth Crusade, where Constantinople was shamefully ransacked.  The intended/unintended consequences of many of these new reform measures will undercut our nation.

The ongoing mantra that patents hinder innovation is utter nonsense.  Patents protect innovation, secure funding for fledgling companies, and otherwise promote new ways of life.  By condemning patents as anti-innovation, the big tech companies, through their lobbyists and the press, are themselves trying to hinder innovation by eliminating competition, and maintain their own market share without disruptive upstarts.

LES and many other organizations condemn these actions to cynically malign the patent system for private gain. But we should all lend our voice against this rather malevolent attempt to kill what our Founders gave us.  Patents and copyrights are the only rights set forth in the Constitution.  All other rights are separately attached in a Bill of Rights, such as the right of free speech, etc. Our great nation owes much of that greatness to a robust patent system, where innovation and innovators large and particularly small are protected.  Tilting the system toward large corporations with large war chests undermines the fabric of what the Founders wanted and what our nation needs.  These recent legislative efforts go too far, and our representatives need to know this.

Raymond Van Dyke, IP/patent practitioner and educator

vandyke@acm.org, 202.378.3903

Ray at the White House

Ray was lucky enough to be at the White House during the Holiday Season.  Here are few photos of his visit.

Wishing everyone a Happy Holiday and Joyous New Year filled with innovation and success from everyone here at Van Dyke Law.

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In Front of the Official White House Christmas Tree at the Blue Room entrance.

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Ray with the iconic portrait of JFK.

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The Lincoln Portrait in the State Dining Room is flanked by a Christmas Tree on one side and a nativity scene on the other. Tables are set for refreshments.

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Outside, the White House is directly behind Ray and the Old Executive Office Building is to the right of the photo.