I disagree with Paul Michel and Matthew Dowd, (Wall Street Journal, 1/24/2020, link below), that our patent laws do not give adequate and clear protection to inventions. Conversely, we have become too liberal in both what is allowed to be patented and the length of time that patents are granted.
They urge the reversal by Congress of the Supreme Court of rulings that prohibit the granting of patents for “abstract ideas” and “natural phenomena”. Abstract ideas, like mathematical formulas, computer code, or simple ideas drawn on paper, and natural phenomena, like the discovery of particular DNA or naturally occurring chemical compounds, should not be patentable.
Originally, U.S. patents had a maximum life of 14 years, then 17 years, and then 20 years. Companies that earn billions of dollars in profits every year on their patents are very willing to spend many millions of dollars to lobby congress to extend their monopolies. Who spends money lobbying to reduce the term of patents? Shouldn’t the term of monopoly protection granted depend in part on how much it costs to meet government regulations related to the invention? For example, prescription drugs may deserve a long patent term because of the cost to meet government regulations. But there is no logical reason why all patents should be granted for the same length of time. (Design patents are granted for shorter periods, but why should they be granted at all?)
The concept of “intellectual property” is man-made. Since time immemorial, humans have copied one another. For millennia legally protected private property was limited to physical property which could only be possessed by one person at a time. Ideas can be possessed by many people at the same time without infringing on the physical property of others and without the use of force. Monopolies, including the exclusive use of inventions, were originally granted by Kings to favored subjects through the use of force. Our government protects patents through the use of force. Contrary to the Founder’s intent, some patents appear to slow innovation rather than encourage it. The case can be made that no patents should be granted. In this case, Congress should expand patent protection.
Link to Wall Street Journal opinion: