Active Promotion of Useful Arts: Considering the Government\u27s Role in Patent Enforcement

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the decision to grant a patent. Some view patent rights as a form of monopoly, termed a “patent monopoly.” Because early Americans had strong anti-monopoly sentiments, their decision to institute a system that would allow for a patent monopoly demonstrates a recognition of the importance of furthering collective knowledge. However, a patent can be essentially worthless if its owner is unable to enforce it. While a patent confers the right to exclude others from making, using, or selling whatever the patent claims, this right has been restated by some to actually be more akin to “a right to try to exclude” others. One reason is that the right to exclude can only be exercised on the condition that the patent owner also has the financial means to exclude. There is no criminal penalty for patent infringement. Instead, patent infringement is strictly a civil matter and patent owners are responsible for the costs associated with enforcement. Thus, if a patent owner is unable to afford the cost of litigation, the right to exclude might as well not exist