As an American, it should come as no surprise that several rights, both unalienable and those guaranteed in our U.S Constitution, have been taken away (stolen), or there have been major attempts, throughout several decades, to rid us of certain rights.
There are too many to list.
However, the one being looked at today has a far-reaching effect on every American and their ability to attain the American Dream – the right of an inventor to his, her or their creation.
Our Founders, particularly George Washington and James Madison, were strong proponents of patent rights, but not in the way it had been practiced for centuries by England and other countries. In almost all other countries, and especially Great Britain, it was set up to allow only the richest to file for patents due to the cost of fees. Our Founders alleviated that problem by making it so virtually anyone, from any walk of life, could file for a patent.
Thus, when Madison drafted the Constitution, responsibility for providing such protection was entrusted to Congress. He and Washington wrote the following words together to achieve their purpose, “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The Patent Act of 1790 (1 Stat. 109) was enacted on April 10, 1790, and granted the applicant (“he, she, or they”) “the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery.”
Note that both our U.S. Constitution and the Patent Act of 1790 state, precisely and unequivocally, that the discovery of an inventor is an exclusive Right.
Fast-forward over two centuries to a time when lobbyists can and do convince our U.S. Congress to enact legislation that is overly beneficial to their interests. Since 2008, there has been more than three billion dollars spent, each year, on lobbying efforts.
On the surface, there is nothing inherently right or wrong with lobbying. The very term itself goes back to the days when people waited in lobbies to speak with legislators heading to a vote. This would, more than likely, be covered under our First Amendment, the right to petition our government for grievances.
However, the problem has become when lobbyists use their money to buy influence with our government, especially when what they want is not in the best interest of American Citizens. Because they’ve become dependent on money from lobbyists to fund their political careers, members of Congress end up passing laws to keep the lobbyists and their clients happy (and money flowing to continue their never-ending campaigning), instead of laws that benefit We the People.
Case in point: the America Invents Act of 2011 (AIA)
This piece of legislation was backed by Big Tech and multi-national conglomerates, including those controlled by the Chinese Communist Party (CCP). Their lobbyists poured hundreds of millions of dollars into Capitol Hill, through political contributions, and created and funded a PR campaign aimed at a particular villain they blew up out of proportion and significance, the “patent troll.”
What they were really after, which is proven by results, were the patented works created by independent inventors and innovative small businesses and startups, like they used to be. They wanted the patents. They did not want to have to pay a licensing fee for an invention they could not develop themselves.
The AIA created the Patent Trial and Appeal Board (PTAB), an administrative tribunal that earned the nickname “the patent death squad,” a term coined by former Federal Circuit Chief Judge Randall Rader, less than two years after the AIA was signed into law. As of June 24, 2021, the PTAB had invalidated 84% of the 3,105 challenged patents that have been reviewed and issued a Final Written Decision.
The tribunal revoking patents consists of a panel of Administrative Patent Judges (APJs) who are not real judges. They are, primarily, attorneys whose main experience is in law rather than in the technologies or specifics of the patents they are “judging.” In fact, an astounding 60% of APJs have ZERO tech experience (2019). Yet, these judges regularly overturn the work of the highly experienced USPTO Patent Examiner(s), regardless of how long a patent has been in effect, nor how original and unique it was when it was first discovered.
The PTAB opened the door for this particular bombshell to be dropped by our USDOJ: Patents Are Not Rights – They Are Privileges Or Franchises.
In 2018, there was a major U.S. Supreme Court (SCOTUS) case, Oil States Energy Services, LLC v. Greene’s Energy Group (Oil States). The PTAB took away patents from Oil States that had been in force for over a decade. Oil States took it to court and ended in front of the SCOTUS.
During this trial, both our U.S. Department of Justice and, following their lead, the SCOTUS absolutely shredded the exclusive Rights of inventors in favor of Big Tech and billion/trillion dollar companies.
On pages 37-78 of the brief filed by our USDOJ, it states, “Patents have always been understood as privileges or franchises.”
Let’s review the wording of our U.S. Constitution and even the very first patent act. They both state, quite clearly, the exclusive Right.
They do NOT state that an invention (or Patent) is a privilege.
They do NOT state that an invention (or Patent) is a franchise.
And, a USPTO educational video, An Introduction to Patent Protection, even states “…the U.S. patent right is a private right.”
Thus, the USDOJ and SCOTUS are using Word Games, ploys that have become incredibly popular, including such things as re-defining words, to arrive at a decision that is, quite frankly, unconstitutional.
Only one Supreme Court Justice got it right.
Justice Neil Gorsuch wrote, “For most of the Nation’s history, an issued patent was considered a vested property right that could be taken from an individual only through a lawful process before a court,” i.e., not through an administrative tribunal with very limited Due Process, no jury, no real judge.
Adding to that extreme injustice, just this summer in United States vs Arthrex (June 2021), SCOTUS ruled that PTAB judges were “unconstitutionally appointed.” Then to ensure every independent inventor and every small business and startup that had been destroyed by the PATB – which numbers in the thousands – could not obtain a reversal of their patent invalidation by the unconstitutional PTAB APJs, SCOTUS (our judicial body) played like they were legislators, and changed the law to be more in line constitutionally (which is still up for debate, especially making the change 10 years after the fact).
Renowned National Security Specialist Dr. Rob Spalding, Brig Gen, USAF (Ret), made two very short, powerful comments that really resonated at the Decade of Stolen Dreams rally, held at the USPTO main office in Alexandria, VA. “The way the Chinese influence our policy process is through our corporations.” He also provided examples of lobbying and passing legislation. Then while speaking about China’s rising worldwide power and influence, he said, “The America Invents Act is a great way for the Chinese Communist Party to get technology without having to pay for it.”
Madison warned us; “Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations.”
And, Alexander Hamilton said, “A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government.”
It certainly appears fewer and fewer of those “serving” We the People in Washington D.C. possess that sacred respect.
For the sake of our country, join inventors and their supporters nationwide to re-establish what our Founders knew would be the economic lifeblood of America and the building block of the American Dream: “…securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
If you have not, please sign the Inventor Rights Resolution. We can then keep you updated on any forthcoming patent-detrimental actions or legislation on the horizon.
Then, contact your Congressional Rep and tell them to vote NO on the Restoring the America Invents Act, a piece of legislation which will pretty much seal the doom for inventors and innovation in America, along with the American Dream.