While many rights in the Constitution are defined vaguely, the Founders laid out one right explicitly in that important document: the right to a patent. They saw the limitless opportunities of the Industrial Revolution and wanted to protect the inventors who would drive it.
To borrow a phrase from one remarkable inventor, “It’s worked out pretty well so far.”
The Founders could have included rights for anything, but they found the right to own your ideas (for a limited time) instead of the King deciding who owned an idea to be important enough to codify it in the Constitution.
This simple policy has been, and still is, the driving force behind the U.S. economy and U.S. innovation. Unfortunately, some people don’t respect that right and complain when the government does its job by enforcing intellectual property, like when the International Trade Commission stops goods coming into the country built on —stolen—patented technology.
The point of a patent is to provide the incentive to invest in an idea, but additionally patents also level the field between large corporations and the garage inventor. With patent protection, the Constitution gives an individual the ability to stand up to a large corporation and win.
However, big businesses don’t like being told “no.” Big businesses don’t like losing. They have attempted to water down patent protections to make it cheaper to buy the rights of patents owners or easier to steal—and let's be clear that patent infringement is theft. And, for the last few decades they have unleashed an army of cronies on Capitol Hill to make their case.
Unfortunately, these anti-innovation companies sometimes win. Their most effective tactic has been to label anyone who defends their patent a “Patent Troll.” Their litigation and lobbying efforts have made it harder to defend patents.
However, in order to turn our economy around for the long-run that needs to change. One of the issues is there are no patent police. If you steal an idea, the cops aren’t going to show up at your door and escort you out in handcuffs. Instead, inventors must lawyer up, open their wallets, and hope that the court system agrees with them. That means that even before the crony interventions patents were both hard and expensive to defend. Today they are almost impossible.
But “almost” impossible to defend still isn’t good enough for these big companies.
Over time, the ever-evolving global marketplace spawned new problems for innovators, including foreign companies (some backed by their home countries) violating intellectual property rights. So, now innovators can approach the International Trade Commission, to help them put a stop to this infringement too.
Of course, stolen property is cheap so big companies throw a temper tantrum when the ITC does its job and stops infringing products from entering the U.S. Unsurprisingly, these companies have activated their army on Capitol Hill to whine about having to pay for IP use and sent out their messengers to attack those who would defend property rights.
As a result, we've seen anti-innovator legislation written to solve the “problem” and op-eds abound with statements like, “The ITC takes far too seriously its mission to protect IP rights….” In other words, the ITC is doing its job, but big business would like them to take a coffee break and let some of these stolen products into the country.
Fortunately, the ITC hasn’t listened to the whining and has held up under that pressure.
The issue isn’t really about a few products here and there that are infringing. The more fundamental issue is whether or not IP is protected by the federal government. Intellectual property creates the incentive needed for inventors to invest time and money into an unproven idea. IP provides investors the incentive to risk, and it is what keeps large corporations innovating instead of merely stealing idea from smaller competitors.
IP is what keeps our economy competitive and improved the quality of life everywhere. Again, it’s worked out pretty well so far.
Big business is never going to like paying small inventors for their ideas, but that doesn’t mean that Congress should bow to their pressure. If they do, they might see short-run gains, but in the long-run they will have stifled U.S. innovation, killing the economy of the future, and doing so by ignoring the only explicit right in the Constitution.
