Our Founders knew that inventors would be key to economic and sustainable growth and success in America. So much so, that what is sometimes referred to as the ‘Intellectual Properties Clause’ is the only place in our U.S. Constitution where the word Right appears.
They, of course, knew about the system in Great Britain. However, the way it was set up over there allowed only the richest to file for patents due to the cost of patent fees. Our Founders would alleviate that problem by making it so virtually anyone could file for a patent.
And, when James Madison, the “Father of our Constitution,” drafted what would be our Supreme Law of the Land, responsibility for providing protection was entrusted to Congress.
As well, he and George Washington, our first president and a staunch supporter of patent rights, crafted the following words together to achieve their purpose, “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Article I Section 8 Powers of Congress, Clause 8, states, in full: “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.”
The Patent Act of 1790 was enacted on April 10, 1790, granting “he, she, or they,” the applicant, “the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery.”
Having this particular Right in our Constitution proper did exactly what Washington, Madison and other Founders had hoped and, later, what President Abraham Lincoln described, when he said, “The Patent System added the fuel of interest to the fire of genius.”
With the addition of the Bill of Rights, ratified on December 15, 1791, our Founders spelled out numerous other rights for Citizens of the United States.
Among those other rights, our Fifth Amendment states: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” This covers Due Process as well as what is referred to as the “Takings Clause.”
And, our Seventh Amendment states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”
To give an idea of how important Intellectual Property (IP) was to our young nation, consider that the first board members, aka the “Commissioners for the Promotion of Useful Arts,” included three of President Washington’s cabinet; Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph.
Madison, wrote, “A Government is instituted to protect property of every sort…This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
That IP Clause is a significant and powerful part of the American Dream, allowing people from all walks of life who have a bright and useful idea to capitalize on their innovations and creations.
There are those who will tell you that one of the primary reasons for the America Invents Act of 2011 (AIA) was to put an end to frivolous lawsuits by patent trolls, non-producing entities (NPEs) and to protect small entities from abusive patent litigation.
Those same people who disseminate that falsehood will cite a couple of great examples to “prove” that their words are true. Yes, admittedly, those types of frivolous lawsuits do exist. Unfortunately, frivolous lawsuits abound everywhere within our society.
However, if the purpose of the AIA was designed to stop NPEs from ripping companies off, why is it then, as of January 29, 2021, of all the petitions that have been filed with the Patent Trial and Appeal Board (PTAB), approximately 41% comprise large, medium and small size entities filing claims against NPEs, while over 40% are filed by large operating companies (multibillion or trillion dollar operations) against other, much smaller OPERATING companies (NOT NPEs), such as independent inventors and innovative startups and small businesses, while another 11% are made by small and medium size entities against other operating companies.
Thus, while 40% of the challenges are against NPEs, the majority, over 51%, are not, but are, instead, targeted at the independent inventor and small business and startup innovators.