Whenever there is “bipartisan” legislation in Congress, hold to your wallets, for they are coming after it.¹ Or, in this case, they are going to make the patent system worse, i.e. “improve” it. Don’t you know, it’s “broken.”

IP law almost never gets better. It always gets worse. The copyright terms keep getting extended—from 14 years extendable once, to life of the author plus fifty years, now life of the author plus seventy years.² There is  constant agitation to make the copyright fair use defense harder to invoke, constant calls to expand copyright to cover links, newspaper story headlines, and so on. Patent law almost never gets better, except as the random happenstance of court interpretations of its nonobjective and vague standards, e.g. in eBay Inc. v. MercExchange, L.L.C., the 2006 case that mercifully made it somewhat more difficult for patentees to get injunctions against their victims. Something patent terrorists continually whine about.³ The only meaningful improvement in the entire history of US patent law—from 1790 to now—that I am aware of was an expansion of prior user rights in Obama’s 2011 America Invents Act.⁴ But this was pretty minor. Okay there was one other minor one too, that I mention below. The other changes were all window dressing, though you would not know it from the caterwauling of patent shills who freak out about every tiny change to avoid real change ever being considered. They want to keep that Overton window small.

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1. See also: “Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” —Ayn Rand, “Francisco’s Money Speech” and: “Is there a need to reform taxes? Most certainly. Always and everywhere. You can always make a strong case against all forms of taxation and all tax codes and all mechanisms by which a privileged elite attempts to extract wealth from the population. And this is always the first step in any tax reform: get the public seething about the tax code, and do it by way of preparation for step two, which is the proposed replacement system. Of course, this is the stage at which you need to hold onto your wallet.” —Lew Rockwell [↩]
2.  As I sarcastically observed here, the rules for determining the term of a copyright are clearly the product of natural law. See KOL012 | “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” Austrian Scholars Conference 2008. [↩]
3. Adam Mossoff & Eric Claeys, “Patent Injunctions, Economics, and Rights“; Christopher B. Seaman, “Permanent Injunctions in Patent Litigation After eBay: An Empirical Study“. These support finite terms for patents, even though the number is totally arbitrary: “the exclusionary rights secured by a patent should account for “how long it would have taken, in the absence of knowledge of the invention, for independent discovery” resulting from the productive labors of others.43 This concern is addressed by duration limits.44″ (P. 7) It’s hard to believe they seriously believe that Congress knows and had determined what the “right patent term should be. 17 years? Why? Why should it be the same for all types of patents? Why shouldn’t the courts or the PTO figure it out? Jesus Christ, how can they bear to repeat such utter nonsense! This was the same stupid shit Neil Schulman proposed, as I noted elsewhere: “which is what J. Neil Schulman proposes in his logorights idea–just have some panel of “experts” use “information theory” to figure out how long each patent should last–1.3 years for this one. 26 years for that one. and so on.” See Optimal Patent and Copyright Term Length. As Schulman writes: “Taking the “lowering entropy” argument too far into the area of physical thermodynamics runs one quickly into problems of both fact and theory; the comparative “entropy levels” of a car, a piece of junk, and a chunk of ore are incalculable. Nevertheless, I believe the “entropic” paradigm of regarding creation as a “calculable increase in improbability” is sound within the context of information theory, where one discusses the “entropy” of a signal; and, in fact, I’m told there are existing formulas, used by the Search for Extra-Terrestrial Intelligence (SETI), to calculate the “improbabilities” of a signal being a “natural” occurrence as opposed to being artificially generated “information.” J. Neil Schulman, Origitent: Why Original Content is Property (Steve Heller Publishing, 2018), p. 40. And now you have these guys buying into this. What’s their authority? Nozick’s dilettantish remarks in his anarchy book; he didn’t know anything about IP law, or even how to justify rights! Oh, and Ayn Rand, who made up some makeweight argument. And of course the Congress and the US Code that “says” what the patent term is. Oh, that’s some proof! See also Yaron Brook on the Appropriate Copyright Term; Hawley Introduces Bill to Reduce the Copyright Term; Reason: Copyright Should Last Half A Century; and see the remarks on copyright term and related matters by Tom Bell and Jerry Brito in Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms. [↩]
4. “Obama’s Patent Reform: Improvement or Continuing Calamity? [↩]