Power To, and In, the Patent Owner - Fordham Intellectual Property, Media & Entertainment Law Journal
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Power To, and In, the Patent Owner

Power To, and In, the Patent Owner

A patent’s purpose is to promote technological innovation and progress in the useful arts and sciences. A patent owner is allotted a private right in the form of a monopoly on that innovative article for a limited period of time. However, recent arguments suggest that patents are not a private right, but rather a public right. The line dividing public and private rights continues to erode because of the comfort and dependency we have on technology. Does the government’s same dependency on technological innovation allow the claim of a patent ‘public right’ to stretch to the government without reason?

The weakening of patent rights began during the Obama administration, with a little help from Google. Specifically, former Google executives held positions in the Obama administration’s executive branch. Aside from Google’s antitrust investigation in 2015, company executives visited the White House once a week on average.1 In all likelihood, Google’s presence in the White House factored into Google lobbying to weaken patent rights.

Interestingly, the Trump administration is acting similarly, despite Trump’s campaign to essentially reverse the accomplishments and goals of the Obama administration. This included their steadfast efforts to keep patents a private right – or so we thought. During his campaign, then-candidate Trump stated that making patents anything less than a private right would go against public policy and Congressional authority.2 His arguments hinged on the public’s need for progress through the privatization of innovations, and the similarity patents share with private, physical property.3 Anything less would go against the Constitution.4 Now, the Justice Department is taking a stance contradictory to Trump’s campaign proposals, and taking a different stance in their brief to the Supreme Court in Oil States Energy Services v. Greene’s Energy Group, LLC.5

In Oil States, the plaintiff alleged Greene’s Energy infringed on a patent for pumping fluids into oil wells, a process that uses high pressure pumps and occurs without contact to wellhead pieces.6 At issue is whether a process of review – known as inter partes review – initiated by the United States Patent and Trademark Office is constitutional. Reviewing the constitutionality of inter partes review is a first for the Supreme Court.7 They must decide if it is unconstitutional to have the same agency take away the private property right, which the agency initially gave, without a jury proceeding. In this case, the government thinks so.

The government argues that a patent’s purpose is solely an initiative for innovation. An inventor’s monopoly over their invention does not supersede the importance of innovation. Thus, the ‘public right’ is in the form of a ‘government-conferred franchise.’ As a government-conferred franchise, the government would not be required to compensate patent owners when taking away their ownership in that patent for public use.8 Anything less conflicts with the Fifth Amendment, which states that if private property is taken by the government for public use, the owner of that private property must be compensated.9

The Supreme Court determined the government’s level of involvement in real property transactions in Moore v. Robbins.10 The Court stated that the government’s involvement in a transaction of real property ceases to exist once the transaction is complete.11 If the government confers real property to a person, it means that what is given may be taken away. The safety and security attached to private ownership would be fractured by a person’s need to obtain governmental approval.12

Our daily lives function through the use of technology. We would not be able to effectively use this technology without the security of the patents that protect it. The Department of Justice’s attempt at altering two hundred years of patent law for this case is detrimental to future innovations. For the time being, to progress while using a patent you must pay.


  1. See Brody Mullins, Google Makes Most of Close Ties to White House, The Wall Street Journal (Mar. 24, 2015), https://www.wsj.com/articles/google-makes-most-of-close-ties-to-white-house-1427242076 [https://perma.cc/ACC8-YT9V].

  2. Gene Quinn, Why is the Trump DOJ Arguing Patents Are a Public Right?, IP Watchdog (Feb. 21, 2018), http://www.ipwatchdog.com/2018/02/21/trump-doj-arguing-patents-public-right/id=94025/  [https://perma.cc/R8YH-FWYN].

  3. See id.

  4. Id.

  5. See Brief for the Federal Respondent, Oil States Energy Services v. Greene’s Energy Group, LLC, No. 16-712, http://www.scotusblog.com/wp-content/uploads/2017/10/16-712-bs-federal-respondent.pdf [https://perma.cc/NX3D-C8GR].

  6. Oil States Energy Services v. Greene’s Energy Group, LLC: What You Should Know, Haug Partners (Aug. 17, 2017),  http://www.haugpartners.com/article/ipr_constitutionality/ [https://perma.cc/2UY3-5X3J].

  7. Id.

  8. Id.

  9. U.S. Const. Amend. V.

  10. 85 U.S. 588 (1873).

  11. See Quinn, supra note 2.

  12. Id.

Nicole Rallis

Nicole Rallis is a second year law student at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. Nicole has a B.M. in Music Business from New York University.