Last week, Delaware Senator Chris Coons, the chair of the Senate Subcommittee on Intellectual Property, made an assertion about the nature of patents that is flat out wrong. Senator Coons said:

“OUR FOUNDING FATHERS MADE IT CLEAR THAT INVENTORS SHOULD HAVE EXCLUSIVE RIGHTS TO THEIR INVENTIONS. IN OTHER WORDS, THE CONSTITUTION IN ITS SCRIPT GUARANTEES TO INVENTORS THE ABILITY TO PREVENT OTHERS FROM USING OR SELLING THEIR INVENTIONS WITHOUT THEIR PERMISSION.”

This assertion is directly at odds with what the Constitution explicitly says. The Constitution absolutely does not provide any guarantees to inventors about exclusive use of their inventions. The wording that provides the basis for government-granted patent and copyright monopolies can be found in Article 1, Section 8, where the Constitution lays out the powers of Congress.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; ….

“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;”

The granting of patent and copyright monopolies is a power of Congress, like the power to tax and the power to declare war. Patent and copyright monopolies are not a right granted to individuals, like the right to free speech or the right to practice the religion of one’s choosing.

Rights Versus Policy

This is not just a gotcha where Senator Coons has inaccurately described the wording in the Constitution; the mistake matters hugely for how we think about patents and copyrights. As Senator Coons has described the constitutional wording, Congress is obligated to provide patent and/or copyright monopoles to allow people the opportunity to profit from their inventions.

The actual wording in the Constitution says that Congress has the power to grant these monopolies as a way to promote innovation and creative work. It no more has obligation to grant patent and copyright monopolies than it has an obligation to impose taxes and declare wars. Furthermore, the Constitutional language says nothing about the length or strength of these monopolies. Presumably, Congress would look to structure them in a way that it deems most efficient for the purpose of promoting innovation and creative work.

If we recognize that patents and copyrights are simply one set of policies for promoting innovation and creative work, and not an individual right, then we can ask questions like whether they are the best policy. As I and others have argued, there is good reason to believe they are often not the best policy.

This especially is the case with prescription drugs and medical devices. It also creates the absurd situation where people with serious health conditions may be looking at paying tens or even hundreds of thousands of dollars for drugs that would sell for a few hundred dollars in a free market. And the enormous profits created by patent monopolies gives drug companies a huge incentive to mislead doctors and the public about the safety and effectiveness of their products.

We very much need to have a serious discussion about the relative merits of patent and copyright monopolies as mechanisms for supporting innovation and creative work. (I discuss alternatives in chapter 5 of Rigged. [It’s free.]) Unfortunately, our public debate is so skewed by the people who benefit from these government policies, that Senator Coons’s misrepresentation will likely go unnoted by almost everyone.

Unfortunately, our public debate is so skewed by the people who benefit from these government policies, that Senator Coons’s misrepresentation will likely go unnoted by almost everyone. Needless to say, the Senator is not likely to feel any obligation to correct his mistake.

(Thanks to Jon Schwartz for calling my attention to this.)