The cliffhanger from last time was about the difference in worldview between the specialist courts/judges who hear only patent cases and the generalist courts/judges. We can trace the root of the conflict back to the Constitution, which allows for patents in a manner different from other governmental powers.
The Constitution grants Congress the power “To promote the Progress of Science and useful Arts”.
There are a number of ways in which it may use this power. One, for example, would be the establishment of a federal university, which was seriously discussed by the founders of the United States, but which, as you can tell by its nonexistence, was eventually dropped.
It may also “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”. This is the clause in the Constitution that allows for the establishment of the USPTO and the Library of Congress’s copyright office.
To make it obnoxiously clear: the US Constitution requires that three of the four types of intellectual property law currently in US law (copyright, patent, DMCA) must promote the Progress of Science and useful Arts. If these laws don’t do that, then they are unconstitutional, period. Alina Ng has a book going into great detail about this point and its natural implications (here’s my review).
[Trademarks, the fourth type, are about preventing confusion in the marketplace and are thus really a segment of commercial law. Trademark suits largely have nothing to do with the three other types of intellectual property and I think if this clause weren’t in the Constitution, current trademark law wouldn’t be all that different.]
Now all we have to do is work out whether something promotes progress or not. Intellectual property law is thus a unique power granted to Congress where the constitutionality of a law depends on a judgment call.
There have been two approaches toward confronting the judgment call: try to work something out, or ignore it entirely. This is just a blog post, so I’ll give you some examples of the two different approaches, which brings us back to the rift between the generalist and specialist courts.
Rulings by the generalist courts—the Supreme Court, and some district courts—typically include discussions regarding the promotion of progress on a regular basis. If I told you every Supreme Court ruling at some point reprints Article I, §8 (“promote the progress” above) and makes at least some effort to address the balance between helping today’s inventors and not fettering tomorrow’s inventors, you wouldn’t be surprised. Sometimes, the Court winds up deciding that progress is best promoted by not granting an applicant a patent, and leaving the concept or design in the public domain.
Meanwhile, the rhetoric from the Court of Appeals for the Federal Circuit (the CAFC, a specialist court) and the patent office is either entirely a recitation of procedural details, or presumes that patents always promote progress.
When the head of the USPTO talks about the purpose of the Patent Office, he bypasses any analysis of whether patents promote innovation. He takes that as given, and cuts straight to the goal of empowering people to obtain patents:
The USPTO’s mission is empowering U.S. innovators to protect great ideas with patents and trademarks.
Our job at USPTO is to help steward innovation so that it can reach the marketplace as effectively as possible. We do this by protecting intellectual property and by encouraging the smart folks who create it.
BTW, empowering patent applicants to protect their IP is not the actual stated mission of the USPTO, which is to “foster innovation and competitiveness by providing high quality and timely examination of patent and trademark applications”.
Back to the courts, I wanted to check a few random examples of CAFC rulings, and the first on hand was the ruling from last time where Judge Prout so forcefully dissented (I picture her after a long car chase, when she has finally cornered the majority. She levels her 9mm and says through gritted teeth, “I respectfully dissent.”). Indeed, the phrase “promote the Progress” does appear a few times in the majority ruling, but sometimes in seemingly perverse ways. For example, I had a lot of trouble parsing this sentence:
In practice, these three exceptions [to patentability established by the Supreme Court, “laws of nature, physical phenomena, and abstract ideas”] should arise infrequently and should not be understood to subvert the patent’s constitutional mandate “[t]o promote the Progress of Science and useful Arts.”
The active subject of this sentence is really the patent (which is here personified) as it strives to achieve its constitutional mandate. Then a set of exceptions come along, and they fortunately do not subvert the patent as it continues on its path. Again, this is an impressive difference in worldview: the Supremes set these exceptions to patentability with the clear and direct intent of promoting progress; the CAFC’s majority write that it is patents that promote progress, and the exceptions at best do not impede them.
[Another digression: the thing about “should arise infrequently” is also weird to me. Kappos picked up on this phrase and turned it into instructions to examiners, implying that if an examiner is rejecting a lot of applications on subject-matter grounds then he or she should maybe re-evaluate how he or she is examining patents. But if it becomes trendy to try to patent laws of nature and mathematical formulæ—and is has—then examiners should be striking down such patents with great frequency.]
Patent lawyers are not bound by and do not care about the constitutional mandate of promoting progress. The rhetoric of the patent lawyers that I’ve read tends toward a physical property metaphor: the first to invent something should have ownership of the idea, in as close an analogy as possible to ownership of a physical object. This is often described as the “natural law” approach, but that’s already PR, because it implies that the ownership of ideas is as natural a concept as physical ownership, even though the first law of physical property is as old as law itself, while the first copyright law was passed only 302 years ago. I’ll discuss the physical property metaphor a little more next time, as it’s a bit of a digression from the central question of how the USPTO and the courts deal with their constitutional mandate to promote the Progress.
There has never been a credible study that demonstrates that software patents promote innovation, and that should be no surprise to you. How would you run such a study? Have a control country where software is patentable, a case country where it isn’t, and then replicate the Internet revolution in both? How would you measure innovation, being that measuring it by patent counts is hardly reasonable for the problem at hand, and self-report figures, including R & D budget lines, are often distorted by social, political, and tax considerations. Even finding credible and well-done studies demonstrating that general patents promote innovation are hard to come by.
I don’t want to get into the weeds of which authors wrote good papers and which wrote opinion pieces dressed in data, but then neither do the USPTO or the courts. Despite the clear mandate in the Constitution, we don’t expect the USPTO to cite a study every time it proposes a rule change, and we don’t expect them to micro-analyze each patent for whether it will promote or block progress. However, some common sense, and an acknowledgement that promoting progress is everybody’s responsibility (not just the Supreme Court’s) would be a real step forward.
Next time, I’ll have a proposal that will never be adopted, but which I hope will help to clarify some points.