Reblogged:The Latest Setback for Property Rights

[Gus Van Horn blog]

In a 7-2 ruling, the U.S. Supreme Court upheld an Obama-era change to the way patents are challenged:

Justice Clarence Thomas wrote the court's majority opinion, rejecting contentions that issued patents are the type of rights that must be adjudicated only in the federal courts."

The decision to grant a patent is a matter involving public rights -- specifically, the grant of a public franchise," Thomas wrote. The review system "is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO's authority to conduct that reconsideration."

In a statement at the web site of the Center for the Protection of Intellectual Property, Professor Adam Mossoff issued a statement on the ruling that reads, in part:

Image via Wikipedia.

For the first time, the Supreme Court holds that patents for new inventions are regulatory grants similar to monopoly grants for bridges or toll roads. The decision ignores the Supreme Court's own substantial case law over the past two centuries that patents are private property rights that secure the fruits of productive labors under the Constitution -- like all other property rights in homes, farms, and animals. Instead, the Court rules that the U.S. follows the original practice by English Kings and Queens who bestowed royal privileges on their subjects as "patent" grants, applying to U.S. patent owners the historical dictum that "what the government giveth, the government can taketh away."

In a prefatory note, the CPIP links to a couple of scholarly articles by Mossoff that were "heavily cited" in the dissenting opinion written by Neil Gorsuch. I can only add that laymen might also find helpful Mossoff's Townhall op-ed, "Patents Are Property Rights, Not A 'Bizarre Regulatory Lobby'."

-- CAV

Link to Original