Late this June, Congressman Thomas Massie (R-KY) introduced the Restoring America’s Leadership in Innovation Act of 2018. The bill, though unlikely to pass, would significantly strengthen patent protections, moving U.S. intellectual property (IP) policy in the wrong direction.
The bill’s provisions include switching the U.S. back to a first-to-invent rather than the current first-to-file system, eliminating the Patent Trial and Appeal Board (PTAB) in favor of the old Board of Patent Appeals and Inferences, and preventing the publication of patent applications until after issuance and creating a presumption of validity for a challenged patent.
Further, section 9 of the legislation clarifies patents rights as private property, giving them greater latitude to be transferred through licensing, overturning the 2017 Impression Products decision. We’ve discussed previously how the philosophical case for treating intellectual property like physical property is weak at best, but this legislation doubles down on that view.
Of primary importance here is the proposed elimination of PTAB, a review board created by the 2012 America Invents Act. The PTAB has made it somewhat easier to invalidate low-quality patents that were improperly granted–a much needed change given the explosive growth of low-quality patents in recent years. This legislation would undo this modest reform and open the floodgates for even more low-quality patents.
Massie’s bill may not be going anywhere, but it’s a useful illustration of the harmful confusion that follows from conflating patents and copyrights–i.e., intellectual “property”–with conventional property in physical goods. Massie, given his strong libertarian leanings, is attracted to positions that uphold strong private property rights. Since strong property rights generally are a good thing, it must follow then strengthening the rights of “intellectual property” holders is also a good thing.
But in fact Massie’s bill would push IP policy in highly anti-libertarian direction, expanding government power and restricting individuals’ economic freedom. Specifically, patents (1) restrict the free exchange of ideas, goods, and services between others by (2) denying them access to use their own mind in applying old ideas in new or useful ways because someone else received (3) a government-granted monopoly that wouldn’t have existed without state intervention. Accordingly, libertarians and others concerned with expanding economic freedom with respect to technological innovation should be pushing for dialing back patent protections, not ramping them up further.