Cruel of Law

An important feature of the rule of law is the economic support imparted by its predictability, a growth-supporting quality enabling the economically necessary use of contracts, deeds, debt, trusts, currency and licensing. Without it, long range planning and investment are impossible, variously timed delivery differences would cancel trades, and mutually beneficial transactions would necessarily be crammed into the immediate present. The absence of a predictable rule of law thus severely hamstrings economic progress. Patent law depends heavily on its special rule of law. It is expressly created in our Constitution to authorize Congress to provide future investment reliability for a “limited times.” What does limited mean? It doesn’t say how much time but it certainly means some. But if AIA’s IPR can nullify a patent throughout its term all the way to expiry, metaphysically there is no “limited” time. If laws and court decisions continue to nullify effective patents retroactively, the express constitutional provision for prospectively “limited times” is distorted. If patent rights are property rights instead of public privileges, Article I agency-appointed PTAB tribunals cannot be constitutionally enabled to cancel them without reference to the protections in Article III and the Bill of Rights.

A wise man once warned me that standing by themselves, arrogance or ignorance was to be pitied, not condemned but combined in positions of power, they are extremely dangerous. So it is with patents. Our nation’s patent system finds itself caught between apathetic ignorance and under-informed assertiveness. On the one hand, there is the proud apathy of congressional ignorance that resulted in AIA’s PTAB. On the other, there is the under-informed assertiveness of SCOTUS that still uses the term “patent monopoly” in Impression Products v. Lexmark while erasing decades of established patent law by retroactively altering the impact of conditional sales that conformed to existing law when made. Such retroactive conduct scorns patents’ special “limited time” rule of law, by enacting retroactive nullifications unforeseeable during past compliance by legal practitioners as well as practitioners of grant patents. Retroactive patent nullification decisions have become commonplace in the courts and Congress. From AIA’s IPR to Lexmark’s recent nullifications of then complying conditional sales, such conduct not only cancels past established economic process, but it also deters future investment of innovative time and developmental financial support in our nation’s innovation ecosystem. It harms our economic future. The on-going self-inflicted collapse of the patents’ rule of law has become a counter-productive “cruel of law.” Worse, stopping this relentless DC march to economic madness may itself be madness. Can we halt them?

A cash-laden cabal of digital platforms which once happened to be in the right place at the right time has established “might makes right” as its governing rule of law by assuming control over the constitutional guardians of SCOTUS and Congress. SCOTUS reference to patent’s “monopoly” reveals its under-educated understanding of the subject matter. Congress’ enactment of PTAB’s distance from due process demonstrates its lack of understanding. The infringer lobby’s masking of efficient infringement with a patent troll narrative flaunts it. China’s new emphasis on patent system reliability shows that even in a country where the rule of law may be illusory, patent predictability makes economic common sense. And now we hear that digital oligopoly’s lackeys are lining-up on Capital Hill, amassing once again at the borders of economic common sense to begin their next all-out offensive. Whatever now is left of patent enforceability (except for them) will be erased if they prevail.

The House begins its march next Wednesday. The Nadler subcommittee has likely already made up its collective mind. We had work to do. Have we done our work? Does our congressional delegation understand why greater patent and the investment certainty is required convert R&D expenditures into public benefit.? Do they know how Bayh-Dole’s private sector partnerships transform basic science into local economic development? If we have done our work, research university commercialization is already wounded but is at least alive. We must move now. Only home-state universities have the political power to connect effectively. If not US commercialization dies and China will prevail.

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