U.S. Argues Patents are a Public Right in Oil States


In going through the Department of Justice brief in Oil States, you will find no fewer than seven different places where the government makes the argument that patents are a public right, and not private property as they are ordinarily considered. This is interesting because the patent statute itself refers to patents as having all the same attributes of personal property, and at various times the Supreme Court has themselves equated patents to real estate.

Notwithstanding, the Federal Government argues patents are a public right throughout its Oil States brief, as shown from the passages that follow:

DOJ Oil States brief at pg. 13

The justification for patents is not that an inventor has a natural right to preclude others from making or using his invention, but that patent protection will ultimately benefit the public by providing an incentive to innovate. Governmentally-conferred franchises designed to serve such purposes create “public rights,” whose scope and continuing effectiveness may be resolved by non-Article III tribunals.

DOJ Oil States brief at pg. 14

As petitioner emphasizes, questions of patent validity have historically been decided by courts as well. This Court has long recognized, however, that a variety of factual and legal matters are suitable for resolution by either judicial or nonjudicial forums. Such matters are “public rights” for purposes of this Court’s Article III jurisprudence.

DOJ Oil States brief at pg. 17

The public-rights doctrine reflects the principle that, when the very existence of a right “depends upon the will of [C]ongress,” Murray’s Lessee, 59 U.S. (18 How.) at 284, Congress can set conditions on the manner of its adjudication, id. at 283-284; see Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83 (1982) (plurality).

DOJ Oil States brief at pg. 33

In Thomas v. Union Carbide Agricultural Products Co., supra, this Court upheld a mandatory arbitration system under which private parties can be ordered to make payments to other private parties for using information pertaining to pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. The Court explained that “Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, may create a seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.”

DOJ Oil States brief at pg. 37-38

Patents have always been understood as privileges or franchises. Rather than reflecting any perceived “natural right” of inventors to monopolize discoveries, Graham, 383 U.S. at 9, patents were understood as creations of the sovereign that “intrude” on “the natural right of the public to appropriate all new ideas that may be voluntarily disclosed,” 1 William C. Robinson, The Law of Patents for Useful Inventions §§ 25-26 (1890); see American Bell I, 128 U.S. at 370 (patents “take[] from the people this valuable privilege and confer[] it as an exclusive right upon the patentee”); Teva Pharms., 135 S. Ct. at 848 n.2 (Thomas, J., dissenting) (explaining that the Founders saw no “ ‘core’ property right in inventions”).

DOJ Oil States brief at pg. 45

That argument overlooks that public rights are those matters that can “be granted or withdrawn at the sovereign’s discretion.”

DOJ Oil States brief pg. 46

This Court has explained since Murray’s Lessee that matters that can be resolved in both judicial and nonjudicial forums are public rights.

These are just the most direct and obvious arguments supporting the notion that patents are not property at all, but rather just a public right, or a government franchise.


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