Potential Appointment of Rep. Darrell Issa to IP Subcommittee Leadership Raises Concern
Generally speaking and on a wide array of pressing issues, Congressman Darrell Issa (R – California) has proven a reliable leader who maintains solid support among conservatives and libertarians.
The prospect of Rep. Issa leading the House Judiciary Committee’s Courts, Intellectual Property, and the Internet Subcommittee, however, has sparked significant opposition and pushback from intellectual property (IP) proponents. And for sound reasons.
For example, in urging new House Judiciary Committee Chairman Jim Jordan (R – Ohio) not to select Rep. Issa for the role, IPWatchdog’s Paul Morinville lists a litany of concerns based upon Issa’s record:
Issa is the wrong person for the job and has demonstrated that since he joined Congress. He has sponsored and cosponsored numerous bills that harm small entities for the benefit of Big Tech and Chinese Communist Party (CCP)-controlled multinational corporations. He was one of the key drivers of the passage of the America Invents Act (AIA), which created the Patent Trial and Appeal Board (PTAB), the entity that now invalidates 84% of the patents it fully adjudicates. He has ignored other problems like eBay v. MercExchange, which highly restricted injunctive relief, and Alice V. CLS Bank, which unleashed a demon into the patent system called the ‘abstract idea.’ This trifecta of damage has radically reduced the funding of startups by devaluing the only asset capable of attracting investment: patents.
More broadly and equally troublingly, Rep. Issa conceptualizes IP and Congress’s role in protecting it in an agnostic and passive way, as reconfirmed recently by spokesman Jonathan Wilcox:
As long as there have been patents, there have been disputes about how to regulate them. Congressman Issa believes from decades of experience the system has too many loopholes that allow litigation and lawsuit abuse to stifle innovation. Every IP reform he has achieved is to make the system more fair to everyone.
The fact that Rep. Issa views his potential chairmanship as an opportunity to increase government regulation illustrates precisely why the prospect of him leading this important subcommittee has generated such considerable and unified pushback from the IP community. Patents are a constitutional and natural right, not a platform for increasing government control.
Moreover, centuries of American experience and success tell a different story than he suggests.
Throughout our history, America’s system of strong IP protections has made us the most innovative, prosperous nation in human history, without any close competitor. From Alexander Graham Bell to Thomas Edison to the Wright brothers, from the film industry to the music industry, from lifesaving pharmaceuticals to software, from the telephone to the television, no society parallels our astonishing record of innovation, influence and prosperity.
That occurred by design, not coincidence.
Namely, our Founding Fathers considered IP a natural right and specifically drafted the Constitution to protect IP in a robust manner. Even before they drafted and ratified the Bill of Rights, they specifically included IP protection in the text of the Constitution. Article I, Section 8 provides that, “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 obviously creates an active, affirmative Congressional duty, not some sort of passive or optional authority as suggested by advocates of weaker IP laws.
The Founders recognized that, as with every other type of property, protection of IP recognized individuals’ inherent right to the fruits of their own labor while also incentivizing productive activity. As James Madison, the Father of the Constitution, emphasized, “The public good fully coincides in both cases with the claims of individuals.”
Similarly, former patent attorney Abraham Lincoln observed that, “The patent system added the fuel of interest to the fire of genius in the discovery and production of new and useful things.”
And as the Supreme Court confirmed a century after that, “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors,” while “sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.”
Accordingly, America’s strong historical protection of IP rights reflects both the importance of economic incentives – the utilitarian angle – as well as the recognition that free people possess a natural right to the fruits of their labor and investment.
Today, the total estimated value of American IP measures approximately $6.6 trillion, which standing alone exceeds the economies of every other nation in the world. Our IP industries also account for 52% of all U.S. exports, and employ nearly 50 million workers whose average annual earnings exceed non-IP workers’ wages by nearly 30%.
Both at home and abroad, however, our unparalleled system of strong IP rights remains under deliberate assault.
Overseas, nations with weaker IP laws seek to pressure the U.S. to surrender IP protections, such as with our world-leading Covid vaccines and treatments.
And here in the U.S., skeptics and special interests who seek to weaken IP rights claim that the Constitution’s IP protections are utilitarian in nature, as opposed to natural rights.
The obvious flaw in that claim is that utilitarianism obtained more widespread popular currency decades after the Founding Fathers drafted the Declaration of Independence and Constitution. They were steeped not in cold utilitarianism, but rather the natural rights theories of John Locke, who observed that, “a person rightly claims ownership in her works to the extent that her labor resulted in their existence.”
Even accepting for the sake of argument, however, that America’s IP protections arose from solely utilitarian rather than natural rights ideals among the Founders, the simple fact is that one cannot identify an alternative IP system in the world today, or throughout human history, that has resulted in greater utility than our own.
That’s why IP matters, and why we must maintain and strengthen America’s system of IP protection, not undermine it.
It’s therefore important that new House Judiciary Committee Chairman Jim Jordan take this to heart in determining who will lead the critical House subcommittee on Courts, Intellectual Property, and the Internet.
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