by Dennis Crouch
I am enjoying Professor Osei-Tutu’s (FIU) new article on intellectual property as a human right. Corporate ‘Human Rights’ to Intellectual Property Protection, ___ Santa Clara L. Rev. ___ (2015) (forthcoming).
The background of the article stems from movements in both Europe and the developing world to define aspects of intellectual property as a fundamental human right. In one recent case, for instance, the European Court of Human Rights looked to balance the human right to freedom of expression against the human right of intellectual property ownership. See Kolmisoppi v. Sweden (40397/12), [2013] E.C.H.R.
Osei-Tutu sees a real problem with identifying IP as a human right – especially in the U.S. context where non-human actors (e.g., corporations) are increasingly able to claim fundamental rights. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (concluding that a “prohibition on independent corporate expenditure is a ban on speech”) and Burwell et. al v. Hobby Lobby Inc. et. al, 573 U.S.__ (2014) (protecting corporate persons’ free exercise of religion). For the author, this corporate co-opting would largely eliminate the distributive justice that has been a major purpose of the human right schema. Osei-Tutu is writing to an international audience where human rights have become a major part of the international legal framework, but the framing of this debate will also impact the US. In the U.S., although we do not identify human rights, we do recognize fundamental rights to corporate property ownership. Thus, for the U.S., the boat may have already sailed on this idea.
Proposition: the power of Congress to grant patents not invented in the United States flows only from the treaty power. If this is the case, could it be that a particular treaty relating to the protection of intellectual property, or its implementation, may be unconstitutional under Article I, § 8, if it the demonstrably reduces the progress of the useful arts in United States such as by retarding domestic R&D?
Ned,
An interesting thought, but two items speak against the direction that you are wanting to go:
1) Golan v Holder. I remain truly amazed at how little this case has been analyzed (especially seeing as it is the exact same Constituional phrase in play for that case in the copyright context and for the notion of taking something back OUT of the public domain as might be applied in a patent context.
For a quick recap, see en.wikipedia.org/wiki/Golan_v._Holder
2) reciprocity – especially the Supreme Court’s hands off “it’s up to Congress.” As with copyrights, other countries have a mirror image reciprocity arrangement for sovereign protection according each respective sovereigns’ systems.
anon, Golan only dealt with “limited times.” The issue here is difference, progress of the useful arts in the US.
Giving preference to patents on foreign R&D to me would clearly be unconstitutional. But in a priority contest between a domestic invention and a foreign invention, should we not give preference to the US invention because the constitution is higher than an treaty, which is the same as law.
We can come back to Golan in a little bit, but first you have some serious explaining to do as to how “giving preference to patents on foreign R&D would be clearly unconstitutional”
Let’s start with figuring out what you mean by “giving preference.” Since we have a first inventor to file system now (and prior to that a priority determining system), are you trying to discuss cases that would have the exact same time of filing?
Then we could discuss your xenophobia. Since the patent right is a personal property right, will you also extend this “no foreigner can own” philosophy to all personal property?
We don’t even have to get to your conflation of statutory law with Constituional law just yet. When we do we will focus on the fact that ALL patent law is sovereign-based, and we can look at what the Coury has said (in a certain case) about reciprocity.
anon, just for example, we could give preference to foreign patent rights if we allowed their inventors to swear behind or to prove priority based on prior invention but denied the same right to US inventors.
However, I don’t see how granting patents on foreign originated inventions advances the useful arts in the United States except that such might be necessary in order that US inventors obtain patents in foreign jurisdictions due to reciprocity.
Recall that the patent act of 1793 expressly limited US patents the US inventors. See e.g., Curtis, at page 623. link to archive.org
Ned,
I aware of that status in the history of patent law, thanks.
However that status may have been, such does not provide answers to the questions I have put to you or explain how you arrive at your zenophobic (and nonsustainable) view on Constituional law.
I await an actual set of answers.
anon, I don’t know what you are talking about.
But the 1793 Act does confirm Congress’ initial view that granting patents for non US inventions does nothing at all to advance the progress of the useful arts in the US.
Ned,
You stated a claim as to constitutional law and I challenged that claim.
Can you give actual support for your reading of the constitution to support your xenophobic view?
Yes, the 1793 Act for one.
However, I don’t think the issue has ever been litigated because Congress has believed that granting foreign inventors US patents on balance is necessary to provide incentive for US R&D by allowing US inventors to patent abroad.
However, if on balance the rights of foreign inventors operated to retard US R&D, I would think that Congress may have gone too far.
Ned,
You are riding the merry go round of avoidance.
What you think and feel is well understood.
Providing legal support for the xenophobic view is what I am after.
Still.
You miscite the 1793 Act.
Just because a law under the constitution would apply a protectionist stance does not mean that the Constitution demands a protectionist viewpoint.
That is the attempt of your logic here. That logic is rejected.
What seems be going on in Europe is that there are no legal rights – everything is equitable such that a court may balance interests. As explained in the article, if intellectual property is viewed only as statutory rights, they have less weight in determining the balance against basic human rights. Thus in defense of a claim of copyright infringement, a defendant claimed the human right of free speech which must be given preeminence over the statutory right of intellectual property. What the infringed parties are trying to do is elevate IP to an equal status as the freedom of expression to counter the assertion of freedom of expression.
But all this flows from a system in which there are no legal rights, just equitable. In the United States, the courts would laugh at a defense that one had a constitutional right of free speech to infringe somebody else’s copyrights. It is amazing that the Europeans seem to take this argument seriously.
Such drivel. The game is already lost. We capitulate to the European system of franchising. Europe always wanted to distribute inventions throughout the world without necessarily compensating the inventor.
The right of a corporation to file patent applications in its own name in European countries superseded the American dictate that inventors were first individuals. As the ironic world turns.
“In the U.S., although we do not identify human rights, we do recognize fundamental rights to corporate property ownership. Thus, for the U.S., the boat may have already sailed on this idea.”
the caveat being that the CAFC has already held that patent validity is a “public right” and thus susceptible to Art. I determination.
How is “validity” a public right when Congress has explicity made the patent to be a personal property right?
ultimately, what congress intended is irrelevant where separation of powers is concerned. whether a patent (for land or intellectual property) is a public right is controlled by a different mode of analysis.
the current CAFC rule of law on this subject is indefensible. nonetheless, it remains law (and the cornerstone of a landscape-shifting statute).
Your turn of phrase “where separation of powers is concerned” is decidedly off.
Which statute is the landscape-shifting one?
perhaps we are talking about different things, but congressional intent only matters – where separation of powers is concerned – where the admin agency is created for the sole purpose of acting as an adjunct to the article iii court. beyond that, and simplifying the issue, it is the nature of the underlying right that controls (irrespective of whether currently existing as federal statute or not). O’Connor’s Schor’s decision endeavored to consider subjective factors such as, e.g,, the congressional intent underlying the enactment of a statute, but these elements did not survive later rounds of public rights analysis.
the law is the AIA, and the PTAB is predicated about the CAFC’s pub rights classification. if that classification changes, the PTAB, as currently configured, falls. Same story for reexamination. all extremely inconvenient, but so is the burden of having a system based on separation of powers.
Perhaps we are talking about different things anony, as you appear to assume that a patent is a public right (without properly establishing that assumption) while I am directing you to the direct words of Congress that tell you that a patent is a personal property right.
That is precisely the nature of the right that controls, no matter what secondary ‘mode of analysis’ you may want to apply, those secondary modes cannot trump the primary word of law. Attempting to do so reveals yet another instance of the wrong branch of the government attempting to write law in a first instance as opposed to interpreting an already written statutory law.
I agree completely, but the assumption is predicated upon the rule of law established by the CAFC. it is this rule (paltex, joy) that\ serves as the tenuous foundation for both reexam and PTAB IPR. if you haven’t already, I recommend looking into the briefs submitted by both parties in the current eCharge v. USPTO dispute. eCharge makes arguments highly similar to your own, and the USPTO, of course, rebuts – looking to ensure the constitutionality of its newly enacted admin scheme.
oddly, this dispute has not received coverage here. however, it has been covered extensively by other outlets, including Law 360. the uspto is asking the E.D. Va. to punt the case to the CAFC en banc.
Anyone care to differentiate between a right, a right of a human, and a human right?
In contrast to basic human rights like freedom of speech, the Constitution does not present IP as something Congress MUST provide for and protect, but as something that it MAY provide for – but even then, only to the extent that it “promote the Progress of Science and useful Arts.”
Also, Corporations are not people. They are a legal construct invented by people To Serve Man.
Yes, “corporate people” is an oxymoron. Perhaps corporations can get married and have children? 😉
Well, they might be able to adopt…
Corporations are just folk like me and you, yet we treat them like second class citizens. We expect them to fund our political campaigns, but can they vote? No! Is this any way to treat the job creators? Time to give corporations the vote. Then let them marry.
I like the woman who said, “I’ll believe corporations are people when Texas executes one of them.”
Corporate executions happen all the time…
“to define aspects of intellectual property as a fundamental human right.”
Hilarious.
What self-respecting person talks about “human” rights for anything other than a human? What drivel.
If IP ownership is a “human right”, I guess we can put New Zealand at the top of the list of recent egregious violators of “human rights”.
When do we send in the troops to rescue those poor Kiwis? Oh, the humanity.
lulz
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