United States Intellectual Property Organization?: Curing a Fractured Administrative Structure

By Dennis Crouch

Most operating businesses that rely on intellectual property (IP) rights do not focus on a single form of rights but instead take a layered approach that includes patent law along with trademark, copyright, contractual limitations, and design rights, for instance. Each form of IP has weak points and overlapping coverage provides a greater level of certainty that any underlying market value can be protected.  Of course, overlapping rights create difficulties for users that rely upon the public domain and fair use. The bulk of governmental money spent on administering intellectual property rights goes through the US Patent & Trademark Office (PTO) — an executive agency housed within the Department of Commerce.  Although the PTO only administrates patent and trademark issues, the Director of the USPTO also serves as the Undersecretary of Commerce in charge of Intellectual Property and has the role of advising the President and other federal agencies on all aspects of intellectual property – including copyright law.  Of late, this role is shared somewhat with the White House Office of the U.S. Intellectual Property Enforcement Coordinator.

Whither the Copyright Office: There is a clear structural reason why the President and executive agencies cannot rely on the US Copyright Office for advice about copyright law.  The Copyright Office is housed within the Library of Congress, which itself is managed by Congress rather than the President.  Thus the US Copyright Office does not officially represent the Administration or shape Administration policy.  This is an odd setup — especially with the rising and overlapping market role for intellectual property rights.  From a theoretical standpoint, it is unclear whether the fractured administrative structure leads to rights that are either too strong or too weak.  What we can tell is that the structure leads to a lack of coordination in administration of the various IP systems within the US.

In his 1995 Congressional testimony on the topic, Bill Patry identified the fractured structure as "an historical anomaly."

It is not the result of a judgment that the legislative branch is where the Copyright Office belongs. It occurred solely because there was a very clever, ambitious Librarian of Congress who figured out that rather than relying upon appropriated funds, which is not a great way for agencies to fund themselves, he would get free books. He got free books by convincing Congress to require publishers and authors to give the Library free books. That is how the Copyright Office got into the Library of Congress.

The answer: In 1995, the Senate proposed a solution – a United States Intellectual Property Organization (USIPO). (S. 1961).  Although the Bill did not emerge from committee at the time, the newly proposed organization would fall in line with many of our trading partners, including the UK IPO, the Canadian IPO, and the World Intellectual Property Organization (WIPO).

Back in 1995, then Register of Copyrights Marybeth Peters commented that such a move may unduly politicize the Copyright Office. Peters was also concerned that the historic and humanist value of the copyright registry would be soiled if joined with the commerce-focused patent and trademark administrators.

Bill Patry testified before the Senate in support of the concept of the USIPO and argued that the Copyright Office functions are executive not legislative:

Well, the Office doesn't perform any legislative functions. Why should it remain in the legislative branch? The answer that you are given is essentially that is the way it has always been and we like it that way. But if you have go the two other forms of intellectual property … why should the third one be over here and on the other side of the Potomac? It is really a quaint sort of nostalgia for the past. It is an obstacle for the future.

Members of Congress also expressed reticence about giving up direct control of the office. At the time, the Intellectual Property Owners Association and AIPLA suggested "further study."

In the years since 1995, we have seen a great convergence in the marketplace role of the various intellectual property schemes. It seems to me that the time is ripe to consider the issue once again.

68 thoughts on “United States Intellectual Property Organization?: Curing a Fractured Administrative Structure

  1. “…we have seen a great convergence in the marketplace role of the various intellectual property schemes…”

    Seriously?

  2. ” It was the second petition that failed. ”

    Well, “failed” is a bit of a strong term since nobody was hardly promoting it. It did “expire” though.

    “why the lack? ”

    We need congress on this, as techdirt noted, and as I noted before them and specifically told them, not the pres. The pres answer is a nice puff piece on this sort of thing, but congress is the one that controls. Be clear, from what I can tell Mike is extending his tentacles even now unto the congressmans and to the silicon valley that he can get to join on with him. In case you didn’t notice he had to take time out of his day to become a recognized leader of internetmans and kill on SOPA. Watch for more upcoming I’m sure.

    “What a bunch of spineless sissies. One petition not answered to your liking and you all walk away?”

    Going to talk to the real people in power is not exactly “walking away”. And neither is taking a xmas vaca. But you have a respite.

    Note however that the white house did eventually start taking the petitions a bit more seriously. Indeed, check out their E-PARASITE/SOPA/ACTA one here:

    link to wwws.whitehouse.gov

    They’re even inviting the petitioners to conference in with Victoria. Who is kind of a hottie iirc. IMO get dem digits.

    “Why do you think I would ask for an update on something that has already been responded to? By answering to a question I did not ask you only caused confusion.”

    I did not know how informed you were.

    To be clear, I would have preferred to have had the pres be “obligated” to respond to another petition this time urging him to press for the elimination of software patents, but I have seen it as a mere diversion, congress is where the action is as you well know. I imagine that soon we’ll start to see a “petition the congress” site like the one for the pres if there already isn’t one.

    Also, they should lower the sigs back down to around like 10k or 15k imo and that should eventually get down to like 1k or less, it should not take tens of thousands of people on an issue to simply petition a member of the executive to say something that will likely be b s anyway. 25k should get obamas personal response not his advisor’s. He already responds to small groups of a hundred people in town halls. They were just concerned back in Nov. that they’d be overwhelmed because a lot of the petitions were getting all the sigs. Still, they do answer some petitions even before they get all their sigs.

  3. Clearly I am talking about the second petition.

    The first petition did reach the appropriate level, and was commented upon. It was the second petition that failed. The second petition was after the October 3 date. The whole point of the 3:41 PM post was that “Which expired due in large part to hardly anyone, on techdirt or otherwise pursuing it whole heartedly,” so I am asking why the lack?

    What a bunch of spineless sissies. One petition not answered to your liking and you all walk away?

    My bad on the making things up charge – I thought you were referring solely to the second petition (the one that I was asking about, the one that needed a Status Update).

    Why do you think I would ask for an update on something that has already been responded to? By answering to a question I did not ask you only caused confusion.

  4. What are you talking about? Someone created:

    link to wwws.whitehouse.gov

    in sept (before your “as of OCT 3″). And at that time, right around sept/oct. transition, that one was gathering sigs. The “second” threshold was met very quickly on that one as the “second” threshold at that time was like 5k or 15k. And the WH responded as you can see in that link. It was total political B S.

    After seeing the political B S start a spe win’ they created a new petition:

    link to wwws.whitehouse.gov

    Which expired due in large part to hardly anyone, on techdirt or otherwise pursuing it whole heartedly. We need to convince congress not the pres.

    What precisely do you think I’m making up? I’m telling you the simple history as it happened and as your link that you provided even backs up.

    “The anti-software petition, at its posted time, always required the 25K signature level for a response.”

    No, it was made in Sept, before your “oct 3″ date. And it did get a response. It is in the link above. It is total political b s.

  5. your credibility suffers

    Aren’t you assuming that 6 had some credibility to begin with for that credibility to suffer?

  6. 6,

    You are more than just a bit off:

    From link to wwws.whitehouse.gov

    The White House reserves the right to change the time limits and signature thresholds and apply them to petitions created after the change has been published to this “Current thresholds” section:

    [this much is true, HOWEVER…]

    AS OF OCTOBER 3, 2011:

    To cross the first threshold and be searchable within WhiteHouse.gov, a petition must reach 150 signatures within 30 days.

    To cross the second threshold and require a response, a petition must reach 25,000 signatures within 30 days.

    The anti-software petition, at its posted time, always required the 25K signature level for a response.

    Your suggestion that the government did change the level after the reponse level was met is false.

    See also: link to patentlyo.com

    When you blatently make things up, your credibility suffers.

  7. “What’s up with the techdirt crowd? Why were there not enough petitions to force a response to end software patents (14,862)?”

    There was, the cap used to be 5k or 15k or something sigs to get a response. They got their 5k or whatever and he responded with political bs via his science advisor or some such and then the number of sigs stops being counted. Then shortly thereafter they raised the cap to 25k sigs.

  8. Define “American manufactured.”

    Would you include Honda? Toyota? BMW? What about the “American” transnationals who have exported scores of jobs?

  9. Another idea that even would make Newt proud is this: Why don’t we forbid suits against American manufacturers unless the patent owner also manufactures in the US.

  10. Not really, I just think using the term “IP” designates you as a toolbag. There’s patent law, copyright law, trademark law etc. Lumping them all up together does nobody any favors, and calling them “intellectual” does everyone even less of a favor and makes them all lolable.

  11. pro-patent, pro-copyright, anti ‘IP’

    It’s opposite day for what stands in for legal reasoning in the land of 6.

  12. Oh thank God.

    I thought everyone else understood here, and it was just me who wasn’t getting it.

    LOL.

  13. What’s up with the techdirt crowd? Why were there not enough petitions to force a response to end software patents (14,862)? That’s just about the same percentage to the minimum threshold as the vocal minority on this blog.

  14. Indeed! Fortunately for Ned, Sarah probably doesn’t know how to find his full name and address. That said, Gene probably didn’t even know that he was sued and won his case.

  15. Allowing to sue upon publication…

    Not sure how much (or probably to the point, how little) this would affect things, given as it is that the “lawsuit bogeyman” is really just a 2% (at most) lint ball under the patents-in-force bed.

  16. You need a PACER account to access it. It’s in the Western District of Tennessee – search Sarah McPherson. It’s not any more coherent than what has been posted here, however.

    I now see why Sarah has been upset lately. She filed suit against Gene Quinn in December. The judge dismissed it last week, because she has not paid the $500 sanction levied against her in an earlier suit.

  17. Of course she’s a real person. You should go read the complaint she filed in Federal District Court (Tennessee, I think) a couple of years ago. That will give you a little context for her posts. She clearly has some days that are better than others. Today is apparently not one of those.

  18. WAKE UP – your desire to destroy IP rights is based in the fallacy of Communism or its watered down sister Socialism, which are bound to fail because you ignore the reality of humanity.

    Man, this blog has the dxmbest trolls.

  19. So then making copyright not absurd is socialism now? I think you need to go take some classes in Reality 101 brosensky.

    Blow that sht up and start from scratch.

  20. >An economics professor at a local college …

    This parable is also told to great effect in Atlas Shrugged, though in that tome it is the tale of The Twentieth Century Motor Company of Starnesville, Wisconsin.

  21. Did you know that I was forced to sign a RR card with my name on both sides for money that I won, And I was also forced to send in many pieces of my Personal Info so my son could control my Life, when clearly it was the RING/CULT that stole my Property? Did you also know what that Crime is called? Did you also know that Robin and or Kenny Fox has spread it around town? And I am a Cyclops! Everyone knows that my son is my Trustee… BUT NO ONE KNOWS WHY YET… BUT THEY WILL! I DEMAND MY RIGHT TO A TRIAL! I promise you, you will Pay for what you have done to me. I have been going around with a big letter on my forehead. And I tell the world. After all I have the Patent Grant for 5,560,312 that clearly was marked as published when it was referred to. And that’s a fact!

  22. Let’s give patents the same term as copyrights (life +) and let’s also give derivative control to patents.

    That’ll fix ya.

  23. RE: patent shills and people that beleive in the fallacy of IP “rights”

    WAKE UP – your desire to destroy IP rights is based in the fallacy of Communism or its watered down sister Socialism, which are bound to fail because you ignore the reality of humanity.

    An economics professor at a local college made a statement that he had never failed a single student before, but had recently failed an entire class.

    That class had insisted that Obama’s socialism worked and that no one would be poor and no one would be rich, a great equalizer.

    The professor then said, “OK, we will have an experiment in this class on Obama’s plan”. All grades will be averaged and everyone will receive the same grade so no one will fail and no one will receive an A…. (substituting grades for dollars – something closer to home and more readily understood by all).

    After the first test, the grades were averaged and everyone got a B. The students who studied hard were upset and the students who studied little were happy. As the second test rolled around, the students who studied little had studied even less and the ones who studied hard decided they wanted a free ride too so they studied little.

    The second test average was a D! No one was happy.

    When the 3rd test rolled around, the average was an F. As the tests proceeded, the scores never increased as bickering, blame and name-calling all resulted in hard feelings and no one would study for the benefit of anyone else. To their great surprise, ALL FAILED and the professor told them that socialism would also ultimately fail because when the reward is great, the effort to succeed is great, but when government takes all the reward away, no one will try or want to succeed. It could not be any simpler than that.

    These are possibly the 5 best sentences you’ll ever read and all applicable to this experiment:

    1. You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity.

    2. What one person receives without working for, another person must work for without receiving.

    3. The government cannot give to anybody anything that the government does not first take from somebody else.

    4. You cannot multiply wealth by dividing it!

    5. When half of the people get the idea that they do not have to work because the other half is going to take care of them, and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for, that is the beginning of the end of any nation.

  24. The USPTO and the Copyright Office should be together, but it should be run the same way the Copyright Office is run (and by the Copyright people, not the USPTO people).

    Then, Patents should be registered, like copyrights.

    Also, the whole thing can be privatized. If Google ran it they would dump the USPTO’s execrable software (PAIR, EFS, the format they use to store images, etc.) and make some software that works.

  25. Sound gangster?

    Nah, sound pimp.

    Which I am. Or at least that’s what people tell me IRL.

    I’m not really trying at all.

  26. Yeah some of them got responses. Mostly political BS responses of 0 substance before they started submitting petitions for him to take the petitions seriously and then he put out a strong statement against SOPA/PIPA and lost all his hollywood connections but temporarily delayed all out war with the internets. Then of course he let his justice dept run wild and the internets declared a small war to get us started.

    You can see the responses if you follow the link I posted and then click “responses”.

  27. Sarah did attempt to troll Gene’s site. His quality control mechanisms put a stop to that right quick.

    Fascinating.

  28. You sound like wanna-be friend-of-the-techdirt-folk trying-too-hard-to-sound-gangster 6.

  29. Sarah did attempt to troll Gene’s site.

    His quality control mechanisms put a stop to that right quick.

    And yet, those most vocal against Gene still badmouth him – rather telling.

    6 is right – her posts are very easy to ignore and it let’s her let off steam.

    Evil In House Counsel is wrong – MM’s discussion are almost never on the actual topic at hand. They are even worse than Sarah’s as Sarah does not pretend she knows anything about patent law while MM pretends to know everything about everything.

  30. Get back to techdirt. Lolz.

    And while you are at it . . .

    Get a haircut, and get a real job
    Get a haircut, and get a real job
    Get it together like you big brother, Bob
    Get a haircut, and get a real job

  31. The intellectual property system just needs to be abolished. Just imagine the explosive growth in innovation that would occur. It would be amazing. But since we have so many patent shills and people that believe in the fallacy of IP “rights”, rational thinking would not prevail.

  32. You guys do know that Sarah can just make a new account or use a new IP right?

    Of course. But that takes some of Sarah’s precious time and eventually Sarah will get the hint.

    Who knows what might happen if she were banned? Maybe she shows up outside D’s classroom with a shotgun.

    Or maybe she starts trolling IP Watchdog instead. LOL. As if that would ever happen.

  33. You guys do know that Sarah can just make a new account or use a new IP right?

    Furthermore, you don’t mess with crazy people that aren’t currently hurting anyone. Who knows what might happen if she were banned? Maybe she shows up outside D’s classroom with a shotgun. You don’t need that kind of sht.

  34. I have no idea why Sarah hasn’t been thrown off. At least MM discusses the topic at hand. Sarah posts are literally gibberish.

  35. Also

    “My grandfather called this “fixing what’s not broken.””

    And I call it that too.

    Or “fiddling with deck chairs just prior to impact”.

    Take your pick.

  36. I tell you what Richard Stroud if you don’t 123 back to me you had better give your soul to GOD! Because I don’t care who you are! This is my property. And this is how it’s going to be. I will SUE YOU AND THEM! And then I will SELL it. And that will be the end of it! So you had better get this straight buddy!

  37. The Library of Congress has as its primary mission to serve Congress by researching inquiries made by members of Congress. Although they have lots of books, it is not a public library in that only high-ranking government officials may check out books.

  38. Yes, careful Malcolm. If a vote was called right now, and either you or Sarah was thrown off the islandm who do you think the readership would “vote off?” I know the answer without a doubt . . .

  39. Dennis, maybe time to delete this particular account? MM does not add anything of subtance, and we have all our paper tables fully colored with crayon stick figures.

    Just a thought.

  40. The purpose of requiring registration before one can sue is to force registrants to give free copies of books to the Library. Building the Library is what is important to the Library of Congress.

    Moving the registration process under the Executive Branch would, on its face, not seem all that big an issue. But Congress is worried, obviously, that the essential purpose of registration my be abandon by harmonization types who view registration as an obsolete obstacle.

    I don’t know what Mary Beth Peters was talking about when she compared the humanism of her office to Commerce. Perhaps someone here can enlighten us. But I suggest that what she was talking about was the goal of the Office to build the greatest library on the planet. (Then, along comes Google with a better idea, and lo and behold, the Registrar gets to comment on the settlement agreement. Is the goal to build the greatest library ever, or that the greatest library ever be controlled by the government?)

  41. Dennis, maybe time to delete this particular account? We had some welcome relief from this looser for a few weeks but the last week or so it’s been on a tear.

    Just a thought.

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