Updated: 15 hours ago

As Election Day nears, highly charged political turmoil swirls. It’s time we focus on what matters most. Elections aren’t personality-based popularity contests. They’re choices between different policy agendas — this year, stark policy differences.

Using property rights as the lens, the differences between candidates for president, Senate and Congress, and state and local office come into stark relief.

For example, Montana Democrat Steve Bullock indicates he’ll back increasing the number of U.S. Supreme Court justices — court packing — now an article of radical leftist faith. The intent is to ensure liberal or worse judicial outcomes, the rule of law be damned. This will threaten Americans’ property rights.

This from a “moderate” who’s already discovered it’s in his interest to go along with whatever Democratic Leader Chuck Schumer demands. The same will happen to Colorado’s John Hickenlooper, South Carolina’s Jaime Harrison and other “moderates.”

Scandalous dealings involving China and his son Hunter with Joe’s knowledge aside, Joe Biden comes across as the more conventional politician seeking the White House. But the high price for peace in his party with the Bernie Sanders-AOC wing amounts, at best, to Neville Chamberlain’s Munich Agreement with Adolph Hitler. Ultimately, the bad guys get their way.

The “Biden-Sanders Unity Task Force Recommendations” leaves little to the imagination of where a Biden administration will go. It doubles down on anti-property rights, Obama-Biden policies — and dramatically extends that regime: forcing the Green Raw Deal and extremely disruptive shifts in energy and other key sectors of our economy, reregulating everything, a “public option” health plan and socialistic government price controls that lead inexorably to government takeover of health care, expanding federal land holdings and closing off public property to practical benefit, going soft on crime and hard against police, raising taxes and imposing new taxes on entrepreneurial individuals and on employers. You can kiss your property rights goodbye.

Now, many people find President Trump’s aggressive, blunt ways off-putting, jarring, offensive. Many regard his manner as not “presidential” or worse. They may judge the book by its cover.

We Southerners are raised to be polite, display good manners, and unfailingly treat others civilly. You’d better say “sir” and “ma’am,” “please” and “thank you,” and if you can’t think of something nice to say, go with “Bless your heart.” We smile and say “hey” to strangers. People lacking such common courtesy are duly shamed. So, let’s just say the past four years, in this respect, have been hard on Southern sensibilities (and apparently too much even on the brusk, course sensibilities of much of the rest of the country).

Getting past the cover into the book’s contents, the Trump administration has improved the livelihoods of American families across the board and sparked the economy in ways not seen in decades. Mr. Trump has cut taxes, boosted family income, relieved the heavy regulatory burden (including creation of a Regulatory Bill of Rights), spurred a pre-pandemic economy that resulted in the best employment (particularly for minorities, women and those who’d given up on the job market) and household earnings growth in half a century, and launched a U.S. industrial revival that has challenged China’s centralized economy and made the U.S.A. energy-independent (Biden will force our oil industry to shut down). America now exports more oil and gas than Saudi Arabia and Russia. Meanwhile, U.S. greenhouse gas emissions have fallen, thanks in part to fracking.

His Patent Office has improved patent reliability and certainty, while his Antitrust Division appropriately reset, viewing the exercise of intellectual property exclusivity as proconsumer and advancing dynamic competition. And Trump policies positioned America to rebound more quickly from the coronavirus shutdown and its damage to our surging economy.

All this adds up to tremendous, positive results based largely on market and property-rights principles. To anyone basing their votes on book covers rather than on book contents, there’s just one thing to say: Bless your heart.

Among its intense assaults on private property rights, the Obama-Biden administration abused regulatory powers to weaken our industrial and innovative base. That regime spent its eight years turning puddles into federal “navigable waters,” exerting regulatory takings against land owners, and depriving citizens and private companies of access to “public” lands. (See a partial litany in this column.)

Another of the Obama-Biden lowlights was a bipartisan transformation of the Patent Office into a tool of the Administrative State. The falsely labeled 2011 “America Invents Act” set up a kangaroo administrative body severely tilted in favor of patent infringers and antipatent parties for wiping out issued patents — that is, for government regulatory takings of private property without any compensation, much less “just compensation.”

The Trump administration (and for two years a Republican Senate and House) has spent four years undoing much of that regulatory red tape, to great, beneficial effect as measured in economic output, jobs (prepandemic particularly) and earnings.

But the PTAB remains a weapon for Google, Apple, Samsung and other weak-patents zealots to cancel others’ intellectual property, while courts have steadily weakened patents.

The cost of battering IP rights, patents in particular, shows up clearly in a recent report on the adverse effect seen in investment. The Alliance for Startups and Inventors for Jobs, or USIJ, sponsored analysis reported in “The Importance of an Effective and Reliable Patent System to Investment in Critical Technologies.”

In short, weakened patents and a weakened patent system have driven venture capital away from patent-intensive sectors and to sectors not reliant on patents.

The USIJ report finds the share of VC funding going to the most patent-intensive businesses fell from 50 percent in 2004 to around 28 percent in 2017. That is, investors pass over computer hardware, semiconductors, medical devices, pharmaceuticals and biotech ventures and put their risk capital in social networking, consumer finance, leisure and similar startups.

“In 2004, patent-intensive industries claimed the majority of venture capital funding, attracting more venture capital than industries that relied less on patents,” USIJ says. “Since then, the sectors experienced a dramatic reversal in fortune, with the nonpatent intensive industries attracting over 70% of venture capital since 2013.”

This should sound alarm bells across the nation.

Why does it matter that venture capitalists now put much less of their money in patent-centric startups and early-stage firms that are developing and commercializing sophisticated patented inventions in sophisticated sectors?

“What venture capitalists invest in matters because it determines the future shape of our economy. Tomorrow’s leading companies, innovative medical treatments, and new products are most likely to arise from companies that start out with venture capital backing. With less investment in patent-intensive industries, society will likely enjoy less of the things those businesses produce: lifesaving and game changing innovations and U.S. technological leadership.”

It all comes back to the necessity of secure private property rights.

USIJ has quantified a serious threat to America’s economic, industrial and quality-of-life future. A mobile app that finds you a B&B or a social-networking or gaming app that wastes your time isn’t going to save a loved one’s life, heal your disease, lead to quantum computing or advanced manufacturing, or deliver good-paying jobs in Middle America created due to these patent-intensive sectors.

This summer, U.S. Attorney General William Barr gave a very direct speech at the Gerald Ford Presidential Museum. Mr. Barr aimed to expose how China is gaining dominance in major sectors of the world economy. But his main audience was American business leaders.

“‘For American companies in the global marketplace, free and fair competition with China has long been a fantasy,” Mr. Barr said. “To tilt the playing field to its advantage, China’s communist government has perfected a wide array of predatory and often unlawful tactics: currency manipulation, tariffs, quotas, state-led strategic investment and acquisitions, theft and forced transfer of intellectual property, state subsidies, dumping, cyberattacks and espionage. About 80% of all federal economic espionage prosecutions have alleged conduct that would benefit the Chinese state, and about 60% of all trade secret theft cases have had a nexus to China.” (emphasis added) As an inventor, I’m not surprised that IP theft is a major part of this.

Mr. Barr warned American businesses to stop giving away America’s ingenuity and technology to China to their own companies’ and our country’s detriment. Every U.S. innovation that China begs, borrows or steals reduces the size of our economic pie and steals the fruits of some inventor’s labor. This happens domestically as our patent system becomes part of the Administrative State.

In an age where the Administrative State has come to dominate the economic lives and fortunes of American citizens, American government operates less like a representative republic and more like a banana republic. I recently discussed this on a webinar with NYU Law Prof. Richard Epstein, NCLA’s Peggy Little and George Mason Law Prof. Adam Mossoff.

“Judges” employed by the patent agency adjudicate administrative matters, having irregular rules, broad discretion and clear conflicts of interest. This favors deep-pocketed corporations and wipes out the IP of independent inventors and entrepreneurs.

Congress grew the Administrative State in the “America Invents Act” in 2011. My invention, a self-sealing water balloon inflation device called Bunch O Balloons, was granted patents. But a large company whose business model is infringing patents flooded the market with knockoffs. I fought it in court, but the infringer challenged the validity of my patents in the newly created Patent Trial & Appeal Board.

I faced the big infringer in both federal court and in PTAB. There was a night-and-day contrast. Federal court operates with clear rules and procedures; PTAB (like other administrative adjudicatory bodies) has great discretion and loosey-goosey rules. Courts model fairness and due process; PTAB models bias and a tilted playing field. In short, courts upheld my patents and held the infringing company accountable; PTAB cancelled my patents and sided with the patent infringer.

This experience hardly differs from that of countless Americans who get hauled before unfair, biased administrative proceedings and find themselves in a Kafkaesque maze that robs them of their livelihoods, their property, their reputation and worse. It’s so bad that government agencies win at least 80% of these actions, and in some agencies it is 100%.

What’s this have to do with China’s systemic stealing of American innovation? The Administrative State, where arbitrary rules, regulations and procedures can cost you everything, robs not only American citizens but shrinks our national competitiveness.

PTAB steals IP from the sources of game-changing inventions, which otherwise check incumbent corporations’ dominance and benefit consumers. Meanwhile, Chinese IP thieves can corner the new markets using the details of inventions described in published U.S. patents, without facing competition from the Administrative State’s victims: American inventors.

If we want to stand against China, then we must stop giving away our innovation. That includes curbing the Administrative State and restoring fairness, due process and the rule of law.

Locke's Notebook

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