By Gordon Hull
This sounds like a trick question, but it’s not. It’s also currently before the Supreme Court, about which more in a moment. First, however, let me summarize the case for why IP isn’t really “property” in the ordinary sense, even if we use the word. In a paper from a little more than ten years ago, Michael Carrier proposed that although we claim that IP is a “property,” and treat IP as property in some respects, we do not actually treat it as we do other forms of property. In the first step, we have come to treat IP as property “not only in the essentially unlimited scope and duration of its initial rights but also in the ubiquitous assertions that IP is absolute property” (12). This is evident, Carrier suggests, in a number of ways. In copyright, for example, term length, scope, and subject matter are all increasing. In patents, enforcement is increasing (especially with the creation of the Federal Circuit, which stopped a lot of forum shopping, although the Eastern District of Texas until very recently functioned as a favored forum of so-called “patent trolls”), and patent rights are more and more viewed not just as innovations, but as investments. The result should be familiar to anyone familiar with discussions of neoliberal financialization:
“The increase in the importance of non-patent-based incentives for innovation has ensured that, in most industries—with the exception of a few, such as pharmaceuticals—patents are less crucial for innovation than they historically have been. Many firms today obtain patents to have leverage in negotiations with competitors, to prevent infringement lawsuits, or for use as a “signaling device” to consumers, competitors, or investors. Such uses increase the dangers inherent in the expanding scope and effective duration of patents” (19).
Even trademark “rights have expanded through dilution, trade dress, and other developments to the point that trademark rights are beginning to resemble a type of ‘property right in gross’” (20).
Why should we be disturbed by this development? For one thing, IP does not seem to straightforwardly lead to innovation in the manner that its advocates suggest: “although the answer is complex, the connection between IP protection and innovation has never before been as attenuated as it is today. The ever-expanding scope and duration of IP, coming amidst an increase in the magnitude of non-IP incentives, bears continually less justification” (34). Empirical work by scholars such as Jessica Silbey seems to bear this out. Work on highly innovative economic sectors that do not depend on IP does as well. So does the work of theorists like Yochai Benkler, who develops a theoretically robust account of how open-source or commons-oriented production functions economically. But even without that, a moment’s reflection also helps: it is hard to say how the extension of the copyright term by twenty years – to 70 (instead of 50) years after the author has died – provides a meaningful, additional incentive to creation. This is not to say that IP does not and cannot serve to promote innovation – but it is to say that the connection between IP and innovation is not obviously linear, and that (accordingly) the question of whether increased IP rights encourage innovation is both empirical and open in many areas. So IP as property may not increase innovation. But as Carrier notes, it does come with significant downsides: deadweight loss, the risk of innovation bottlenecks (or “anticommons”), and damage to democracy, speech and the public domain.
Most of these arguments are well-established at this point, and have been the subject of considerable debate. What is most innovative in this context about Carrier’s paper, however, is that he also points out that in our eagerness to proprietize IP, we’ve actually stopped treating it as property, because property rights allow for any number of limitations on policy and other grounds. For example, the right to exclude others can be limited by the need to allow access: if my going through my property is the only way to access a public beach, there’s a good chance that I will have to allow people to trespass on my property to get to that beach (a similar theory is what Eileen Kane and Dan Burk argue the SCOTUS should have done in the Myriad case).
Applying this sort of thinking to intellectual property results in weakening IP protections for the same sorts of policy reasons. For example, Carrier proposes a “necessary” fair use defense as follows:
“Because of the importance of a diverse array of viewpoints and because media consolidation and the expansion of copyright have reduced the number of alternative perspectives, activity that promises to counteract this trend should be privileged. In particular, activity that relies on copyrighted expression to criticize the prevailing wisdom, comment upon current events, parody popular works of culture, or develop ideas should be entitled to the defense of necessary fair use. To avoid concerns of viewpoint-based discrimination under the First Amendment, I would privilege not just critical viewpoints, but all viewpoints. In other words, any use that references copyrighted work in expressing a statement would be entitled to the defense” (100-101).
The analogy to allowing access to a public beach through one’s property should be clear enough, although arguably the preemption concern is even greater in copyright; as Rebecca Tushnet argues, sometimes literal copying is the only way to express something. And, as Carrier notes, one immediate effect of this defense is that it would resolve the strange parody problem, according to which it is ok to use a copyrighted figure (say, Mickey Mouse) to make fun of the work in which it appears, but not ok to use that figure to parody the cultural moment of which it may very well be the most iconic representative. Others of Carrier’s proposed limits to IP are familiar – for example, he advocates allowing for experimental exceptions to patent rules, especially for experimentation (121), an existing exemption that the CAFC essentially de facto eliminated by deciding that university research was commercial in nature.
Carrier’s treatment of real property as a Hohfeldian bundle of rights, with different limitations and exclusions that have accreted through common law, judicial intervention and other factors is in no way unusual. What it does here is underscore the difference between property understood juridicially and the current understanding of intellectual property. More specifically, the standard presentation of intellectual property is as an apparatus of neoliberal biopower. I say biopower because the goal – innovation – is an inherently biopolitical one, insofar as its purpose is to foster the health or overall well-being of the population. This is written into the Constitutional provision granting IP (Art. I, Sec. 8) which frames the problem as one of promoting the useful arts. I say neoliberal because the developments in IP that Carrier cites, like trademark dilution the expanding enforcement of copyright against individuals, serve substantially to enforce a vision of human beings as homo economicus, motivated almost entirely as economic agents for economic reasons, as continual participants in a culture which has been completely subsumed into markets.
The tension between these two views of IP is also before the Supreme Court, which is about to decide a case that poses very starkly the difference between a biopolitical version of property and a juridical one. Per the recently passed America Invents Act, patents can be challenged through a process of inter partes review (IPR, in a different sense). This is essentially an adversarial administrative procedure through which the USPTO assesses the validity of challenged patents. As Gene Quinn at IPWatchdog notes, in June, SCOTUS granted cert in a case to determine “whether inter partes review – an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents – violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.” The review process is a classic administrative procedure: it clearly serves efficiency goals, but it also does not adhere to usual juridical rules, even though the outcome can be the revocation of a patent. Again Quinn:
“Patents rights are currently [] extinguished by an Article I tribunal that fundamentally refuses to provide even a modicum of due process. The PTAB refuses to consider evidence timely submitted, they refuse to allow amendments despite the statute saying there is a right to amend, they refuse to issue final decisions on all the claims challenged, they make up their own standards rather than follow statutory tests, there are no judicial rules of ethical conduct for PTAB judges, PTAB judges decide issues where there are serious conflicts of interest, and much more.”
I don’t know enough about the process to know how legitimate these complaints are – but they are hallmark complaints that one might register against an administrative procedure that affects what one views as a juridical property right.
The amicus brief submitted by the Cato Institute, which I will cite as exemplary, makes precisely the juridical claim one would expect it to (for other briefs on the same side, see here). After asserting the principle that “amici believe that private property, in all its forms, is the bedrock for human flourishing” (1), the brief takes the position that “litigants should be able to vindicate their federal property rights in properly constituted federal courts” (1). The brief then argues that:
“From the early days of the Republic there has been an unbroken line of cases reaffirming, time and again, that patents for inventions are private property and stand on the same constitutional footing as land. This principle has been reaffirmed just three terms ago in Horne v. U. S. Dep’t of Agriculture, 133 S. Ct. 2053 (2015). This basic proposition also finds unequivocal support in the Patent Act. See 35 U.S.C. § 261. The debasement of patent rights inherent in the system that forces patentees to continuously defend their private property in front of government bureaucrats finds support neither in historical understanding of patent rights nor the precedents of this Court” (3).
The brief thus adduces a line of cases going back to the 1800s supporting the thesis that “this Court was adamant that a patent, once granted, was a property right like any other, and not subject to summary cancellation proceedings” (7). As might be expected in an argument about property rights, many of the cited examples are from property in land. Thus, in support of the argument that Congress can grant private property rights by statute, the brief notes that “the land patents received under the Homestead Act, are nearly a mirror image of patents received under the Patent Act” (13). Thus:
“While the Homestead Act was in effect, settlers found empty lots of land, worked the land for five years, and then filed an application for a patent from the federal government. In other words, settlers found land that wasn’t known to others before, made it into a new and useful farmland, and upon disclosure of their efforts received, pursuant to a statute, a document that allowed them to exclude all others from the land which the settlers made theirs. The process for obtaining a patent for invention is strikingly similar. An inventor discovers an idea not previously known to others, develops that idea into a new and useful invention, and upon the disclosure of that invention, receives pursuant to a statute, a document that allows him to exclude others from working his invention” (13).
Thus, per an 1876 Court case, “A patent for an invention is as much property as a patent for land” (qt. 13, citing Consol. Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1876)). The recitation of a story about land improvement sounds quintessentially Lockean; not surprisingly, a brief reference to Locke follows (p. 16).
I am not going to take a position here on which side is "correct," but if we take a step back, the Supreme Court has been trying to reel in patent rights for a while, most recently, this summer (recall here). As I noted, it often does so with assertions of juridical principle or right. Something like that seems entirely possible, even likely, in the case of inter partes administrative review.
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