copyright question

Dear Doc:

The US Constitution directs, in Article I, Section 8, Clause 8, that Congress set up a patent and copyright system, “To 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.” Congress long ago did that by setting up a copyright office in the Library of Congress, and a Patent Office as an executive agency (now part of the Commerce Department). The Patent Office is thus part of the “Administrative State” and it makes rules that have the effect of law. Lots of folks think that this has gone way too far and that we need to “deconstruct” the administrative state, and not have Congress delegate its authority to executive agencies. What do you think, Doc?


Stephane O’Banone

Dear SO’B:

With only a few minor exceptions, the Supreme Court has, for the past 200 years, allowed Congress to pass broad laws, and to leave the administrative details to federal agencies, provided that the agencies abide by the process that Congress established for making new rules (i.e., they have to be published for comment, and have a basis in the law that provides for them, etc.) Courts have generally imposed limits only when the law passed by Congress is quite vague, and the administrative agencies have tried to fill in the blanks, or when the agencies just don’t adhere to the procedures. In addition, Courts have found that giving some deference to expert agency determinations makes everything run more smoothly and reduces the number of law suits.

Recently, some in powerful quasi-governmental positions have been attacking this setup. They claim that the “administrative state” must be “dismantled” and that Courts should no longer give deference (under the “Chevron rule“) to expert agency findings. Interestingly, this seems to apply only to agencies and rules these folks don’t like (EPA, Education) and not to those that they do like (Defense). We’re not quite sure where they stand on the Patent and Trademark Office right now, but let’s see what might happen if the PTO were “deconstructed”…

First, Congress might have to move the Patent and Trademark Office from the Department of Commerce to the Library of Congress. The Copyright Office has about 400 employees and a budget of $74 million, while the PTO has 13,314 employees and a budget of $3.5 billion. It’s safe to say that this might be a bit hard to bring about, as the budget for all of the Legislative branch of government is a measly $4.4 billion in total.

Second, because Congress only has the power to pass laws and not make administrative rules, other than those which govern the inner workings of each House, and laws must pass both Houses and be signed by the President, the rules and regulations of the Patent and Trademark Office (of which there are thousands of pages) would have to be passed as new laws, subject to hearings, amendments, and all of the workings of Congress.

Finally, the Doc thinks that it’s inevitable that somewhere along this process, some people might just decide that our country would be better off without patents and trademarks altogether. After all, most very large companies hate getting sued by inventors just because they use some inventions without permission or paying royalties. The long-simmering fight to reduce the power of patents in Congress and the Courts might just break out full scale in the process. The Doc is not against some streamlining of the patent system, but gutting it entirely seems a bit out of line with that stuff in the Constitution about exclusive rights, don’tcha think?

Now the Doc does not really think that all of this would really happen, but lately, he’s not placing any bets on what might happen in Washington. (He’s also not buying green bananas any more, if you get my drift…) As Bette Davis might have said, “Fasten your seatbelts, it’s going to be a bumpy administration.”

Do you have a less philosophical, and more immediate question about intellectual property rights and wrongs? Talk to an attorney at LW&H – they can wax poetic about inventions and other abstract things, and they love doing so at great length.

Until next month,

The Doc

— Lawrence A. Husick, Esq.