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There’s Already a Process for Bad Patents, So Let’s Not Destroy All Patents

The opinions expressed by columnists are their own and do not necessarily represent the views of

There are some people who simply, bizarrely, do not like intellectual property.

Some are full-blown Leftists who do not like private property at all. (But don’t you dare try to take from the Collective the smart phone on which they’re Tweeting their disdain for private property.)

Others are to varying degrees small “L” libertarians who somehow bizarrely delineate between physical property (which they’ll protect) and intellectual property (which they won’t). In other words, they would have arrested a thief leaving Tower Records with an armful of CDs, but are, even as I type, downloading-without-paying that exact same music.

We are in the 21st century surrounded by and immersed in the wonderments of a (less-and-less) free market economy - largely made possible by the protection of intellectual property. Without it we would be literally nowhere.

Were Steve Jobs unable to legally safeguard his magic iPhone, not only would there not currently be Iteration 6S - there would never have been an Iteration 1. Because Jobs wasn’t an idiot.

Jobs would not have wasted his time and tens of millions of dollars creating the iPhone if someone could immediately thereafter steal it. Were Jobs a baker, he would never have baked cakes if people could just walk into his kitchen and take them the moment he’d finished frosting.

This isn’t some metaphysical economic concept - this is common sense.

You know who else liked intellectual property? The Founding Fathers. They liked it so much they ensconced its protection in the Constitution:

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.

So if you want to treat intellectual property as less than - you’d better gear up to amend our founding document.

You know who else liked intellectual property? Abraham Lincoln:

Lincoln called the introduction of patent laws one of the three most important developments “in the world's history,” along with the discovery of America and the perfection of printing.

I’m very comfortable siding with Abe and the Founders (prospective band name) - rather than the intellectually-addled urchins of Occupy Wall Street.

We actually have had in recent years a government-caused patent problem. (The original sin is nigh always governments.) The United States Patent and Trademark Office (USPTO) went through a several-years phase of over-approving patents.

So Congress created a patent-review process that undoes patents that the government never should have issued, which the Supreme Court just unanimously upheld:

The justices were unanimous in backing the legal standard used to cancel patents by a new appeals board at the U.S. Patent and Trademark Office.

Congress created the board in 2011 over concerns federal officials were issuing too many patents and fueling the rise of patent trolls….

Ah yes - the much bemoaned “patent troll,” which the anti-property people bizarrely, incorrectly define as anyone with a patent who isn’t actively manufacturing the thing patented. In actuality, a “patent troll” is anyone who owns a patent - which someone else is using without remuneration. Which is by any reasonable definition - stealing.

If someone is suing on a patent that the government never should have issued - which “fueled the rise of patent trolls” - there’s already in place a Supreme Court-unanimously-backed way to deal with it.

Doing anything broader threatens the entire patent system, which is miserably bad. Congress’ Innovation Act (House) and PATENT Act (Senate) are just this miserably bad. And worse.

The way anyone with a patent that is being stolen addresses the thief is by filing a lawsuit. The Innovation and PATENT Acts make doing this exponentially more difficult.

Government isn’t a precision instrument. It doesn’t wield scalpels - it slams with hammers.

These bills do not carefully delineate between “trolls” and legitimate people with legitimate patents filing legitimate lawsuits. They slam the entire system - with a whole array of new barriers to patent protection, which is miserably bad.

If someone is suing based on a patent that shouldn’t exist - there’s already in place a way to address that. That leaves the legitimate patents, which must be protected. The government must absolutely not do anything to lessen these protections.

The Innovation and PATENT Acts dramatically lessen these protections.

So they should never, ever become law.

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