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Packed House for Mossoff Briefing on Patent Reform

The largest audience ever for an Ayn Rand Institute congressional staff briefing gathered yesterday on Capitol Hill to hear Adam Mossoff, professor of law at George Mason University, discuss “The Failure of Patent Reform: Lessons for Next Year.”

Addressing a standing-room crowd of eighty people, Mossoff began by observing that many people were surprised that Congress will not enact “patent reform” legislation this year, as the push for legislation came to an end in the Senate last month. Although some commentators have blamed lobbying by trial lawyers for this failure, he explained that it was more fundamental than this — the proposed legislative bills were fundamentally flawed in substance.

Before discussing the specifics of the legislative issues, Mossoff explained the nature of patents and how and why a patent is a property right, not an entitlement or gift bestowed by the government. He provided a brief history, showing that the protection of property rights in technological innovation was part of the distinctive revolution in politics and law wrought by the Founders in breaking with Britain (based on his published articles, such as this one).

He then explained how recent initiatives to “reform” the patent system failed to recognize this fact, and instead were improperly characterized as tort reform. As he explained by reference to some of the specifics in the legislative proposals, the proposed revisions to the patent system weakened the property rights properly secured in new inventions. He explained how ensuring proper protection of property rights in the courts — patent owners sue infringers of their property rights in court — is not the same thing as limiting the ability of plaintiffs to sue property owners for negligence (a tort).

Mossoff also discussed how the “patent reform” debates were undermined by improper rhetoric, such as the widely used epithet “patent troll.” This term has been applied to universities, to inventors who license their inventions, to startup companies, and even to companies that license their patented innovation as their business model, such as IBM. He also identified how the “patent troll” epithet would apply to famous American innovators, such as Thomas Edison and Charles Goodyear, as Mossoff has recently explained in Slate. When the primary arguments supporting “reform” of the patent system also would require us to condemn great American innovators, Mossoff observed, it reveals how the push for legislative revisions to the patent system were fundamentally flawed and doomed to fail.

In response to questions from the congressional staff during the Q&A, Mossoff distinguished between a property right in an invention and a commercial monopoly, discussed the legitimacy of software patents, and discussed the misuse of statistics and data in the patent policy debates.

Mossoff will be speaking at the Objectivist Summer Conference (OCON) (Las Vegas, June 27 – July 4) on “The Smartphone Wars and ‘Patent Trolls’— What They Mean to You,” and on “Term Limits for Patents and Copyrights: An Explanation and Justification.”

ARI holds regular educational briefings for congressional staffers on the philosophic issues at stake in current policy issues. Past topics have included antitrust law, the entitlement state, and the moral principles that should guide U.S. foreign policy.