There Is a Constitutional Right at Stake in Patent Reform, But It’s Not What You Think

The Constitution did not create a right to a patent. Let’s get that out of the way. The eighth clause of Section 8 of Article I says,

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.

That is, Congress was granted the power to promote progress of “science and useful arts” in a particular way. While Congress has the power to grant patents, it has no obligation to do so, which means that there is no constitutional right to a patent.

Moreover, a patent is not property created by the Constitution, whatever you may have been told. A patent is something that we treat like property because a statute says we do (35 U.S.C. § 261):

Subject to the provisions of this title, patents shall have the attributes of personal property.

So when anti-reformers talk about “inventors’ rights” or something similar, they’re not talking about something that’s grounded in the Constitution. They’re talking about something granted by a statute.

There is, however, a provision of the Constitution that’s at stake in the patent reform debate: the right to due process guaranteed by the Fifth Amendment:

… nor shall any person … be deprived of life, liberty, or property, without due process of law; …

When we go to court, we generally assume that the judge is going to follow the law. A judge is not allowed to decide cases based on whose clothing is his favorite color, for example.

If you’re accused of patent infringement, you have a right to defend yourself against the claim before a court can use the government’s power to force you to pay.

But what good is a right if it’s too expensive to exercise?

Right now, an accused infringer can be effectively denied the ability to defend itself because of the sheer expense. Using various abusive (but legal) tactics, a patent assertion entity can make it so expensive to defend yourself that there’s little choice but to settle.

The point of patent reform is to curtail the use of those abusive tactics and make it more affordable for an accused infringer to pay for its defense. That’s it.

This isn’t some plot to destroy patents or give huge corporations license to “steal” ideas from small inventors. It’s just about making it practical for accused infringers to get the due process they’re entitled to under the Constitution.

Even someone with a winning lottery ticket expects the state to check the numbers. And determining whether a patent is both valid and infringed is enormously more complicated than comparing 6 or 7 numbers.

That’s why a patent owner has no right to be paid by everyone he thinks infringes his patent. After all, what if he’s wrong? What he has is the right to petition the government to adjudicate his claim. If he wins in court, then he has a right to be paid that’s been granted by the court.

A defendant’s constitutional right to due process doesn’t vanish because a patent owner feels wronged. Let’s not toss out the Constitution because some people want the privilege of not having to prove that their patents are actually being infringed.