Court Monitor

Update in War on Patents

Our patent system has given America the greatest prosperity in the history of the world, fostering "Yankee ingenuity" and rewarding it handsomely. An inventor obtains exclusive rights over his patented invention for 20 years, thanks to the United States Constitution.

Article I, Section 8, clause 8 of the Constitution states that "The Congress shall have Power . . . 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." In those days "useful Arts" meant inventions, to be protected by patent laws.

One of the first substantial laws passed by Congress under the new Constitution was the Patent Act of 1790. Three years later, young American Eli Whitney invented the cotton gin, which provided a mechanical way to separate cotton from its seeds and made cotton America’s biggest export. Whitney obtained a patent for his marvelous invention to protect his rights against widespread theft of his work. He observed that without good patent protection, "a valuable invention can can be worthless to the inventor."

But there has long been hostility to patents, often from the left side of the political spectrum. The first libertarians, the 17th-century "Levellers," were opposed to patents, and many libertarians ever since have wanted to abolish the patent system. Even some Supreme Court Justices, most notably Hugo Black, have been hostile to giving inventions the protections they deserve. The left side of the Supreme Court today tends to be anti-patent, while conservatives typically support patents along with other forms of private property.

Patents for software programs are the latest flashpoint in the war on patents. A unanimous Supreme Court decision against a software patent in Alice v. CLS Bank (June 19, 2014) established that the use of a computer to implement an old idea does not make it patentable.

Until recently, it was relatively rare for a court to invalidate a patent on "subject matter" grounds by holding that the invention is not patentable. Previously there was a strong presumption that if a patent is granted by the Patent and Trademark Office, then it was valid and should be upheld in court.

But no more. In 2013 alone, 14 court decisions invalidated patents based on their subject matter, and this trend has continued into this year. When a court invalidates a patent, tens or even hundreds of thousands of dollars are lost by an inventor who put his faith in the Patent and Trademark Office.

Big corporations, who oppose allowing the "little guy" to obtain patent rights to inventions that big corporations want, lobbied for the America Invents Act (AIA) to deprive rights of original inventors if a corporation files first for a patent on it. This law replaced the "first to invent" rule with a "first to file" rule, which benefits big corporations that file quickly for patents. Legal challenges to that anti-inventor change remain viable after the Federal Circuit declined to address it in MadStad Engineering Inc. v. USPTO (Fed. Cir., July 1, 2014).