America’s 250th an Opportunity to Revive the Founders’ IP Vision

As the nation is about to celebrate America’s 250th anniversary, we should recognize and appreciate the U.S. intellectual property framework, particularly patents and copyrights. For it has played crucial roles in our country’s prosperity, economic and national security, and the prolific degree to which creativity and ingenuity here produce the innovative fruits that Americans enjoy every day.

The recent publication of my book To Invent Is Divine: Creativity and Ownership has acutely raised my anticipation of America’s 250th. A section of To Invent Is Divine focuses on the novel provision in our Constitution in which the Founding Fathers provided for exclusive legal rights in one’s IP.

The Historic Innovation that Blessed America

George Mason law professor Adam Mossoff calls Article I, Section 8, Clause 8, the IP clause, “unprecedented. No country’s founding document had [contained an individual property right] before.” The newly formed Constitution treated intellectual property the same as other forms of property, which the Bill of Rights later secured.

Though not a controversial matter, putting IP rights in foundational law was intended as the “same fundamental break from the English patent system as other U.S. political and legal institutions.” Patents and copyrights would no longer rest on cronyism with the sovereign; common folks could now obtain protection of what they made, the originality and ingenuity of the creative works—the merit of a composition or an invention—is what matters. The U.S. government doesn’t grant rights, it merely secures those already held, ascertaining the boundaries of newly created property.

This displaces trade secrecy and low innovation from primacy, with immediate dissemination of learnings, exclusive, enforceable rights throughout the IP term, and the creative work’s eventual entry into the public domain, allowing anyone freely to make and sell copies.

Further, securing inherent property rights in one’s creative and inventive works was intended to incentivize widespread creativity and ownership of new inventions, new discoveries and new knowledge. The First Congress in the Patent Act of 1790 sought to replace the shortages, modest domestic ingenuity and challenges of Revolutionary War times with an explosion of the body of knowledge, individual pursuits applying new knowledge to creating new and useful things, and resulting in rapid growth of America’s industry and economy. This democratized meritocracy’s fruits would include wealth creation and technological advancement beyond anything the world had seen.

The Divine Basis for Human Flourishing

Our Founders were biblically literate and lived in a Christian society. The Bible was prominent in their world. They were well versed in its teachings. They knew Genesis 1:1: “In the beginning, God created the heavens and the earth.” They knew the Ten Commandments include prohibition of stealing. They knew that God made humans as His image bearers. They knew Micah 4:4’s metaphor of the vine and the fig tree, where the owner has the right to the fruits of his labor.

As creatures bearing God’s image, finite humans possess the divine attributes of creativity and ownership. It’s no surprise that, as with the infinite Creator, creativity and ownership go together. In fact, the combination of creativity and ownership are God’s provision for humanity’s flourishing.

Humans, Christian or not, continue the working and keeping of God’s creation that Adam did. We apply our faculties and abilities to bringing order to creation, to discovering its secrets, to solving problems and to improving the human condition.

The Founding generation understood all this. Though finite and fallen, we get to participate in God’s mission of caring for our fellow human beings. Our exercising our creativity and our inherently owning what we invent or create actually results in widespread human flourishing. This is the model the Founders adopted.

Forgetting the Keys to Flourishing

By the end of the 20th century, we began to take for granted the careful balance of creativity and ownership together, in the U.S. IP system, as the key to America’s prosperity—the means by which we surpassed the world in standard of living, per capita income, global innovation leadership and dynamic competition.

Moreover, we’ve allowed what Southern Cal law professor Jonathan Barnett notes in his book The Big Steal are midsupply-stream technology aggregators and implementers to hijack the U.S. policy and litigation agenda. These enemies of IP rights are weakening IP protection and commoditizing cutting-edge technologies’ value. In other words, antipatent players from Silicon Valley and beyond have been steadily dismantling the Founders’ biblical, win-win innovation machine.

For example, U.S. innovators in standards-based fields such as 5G and 6G wireless technologies lead the world in standard-essential patents, licensing and royalties. But opponents aim to tackle these innovation pacesetters. SEP royalty setting is already headed down the commoditization path in the EU and the UK. They’re pursuing a government takeover of market-based negotiations between innovators and implementers. The latter favor U.S. adoption of the government-run model.

Meanwhile, socialists and populists advocate for and ramp up regulatory, tax and other interventions that—in the name of “affordability”—ignore the tremendous public benefits of the creativity-ownership IP model. Among the most egregious ideas is a tax on patents’ value. The wise counsel of leading conservatives is disregarded.

The Bayh-Dole Act of 1980 applies the principles for flourishing by democratizing technology management out of Washington bureaucrats’ hands and providing secure patent rights as the means for deriving practical use of federally funded research discoveries. Before Bayh-Dole, such inventions wasted away on bureaucracies’ shelves by the tens of thousands. But, populist and socialist officials aim to deform the successful 45-year Bayh-Dole framework, pursuing misuse of “march-in,” “affordability” requirements in research funding and IP licensing contracts, and raiding universities' patent royalties.

Today, U.S. biopharmaceutical firms set the innovation pace for the world in drug development, including against diseases that not long ago were a death sentence for patients. This, too, is under threat from the Left and the Right. Price controls like “most favored nation” (importing the most socialist foreign drug price controls), antitrust weaponization and regulatory hurdles at the Food and Drug Administration will slow medical innovation and harm a major economic sector.

The Democrat-only “Inflation Reduction Act” set up price controls and regulatory hurdles, including government’s direct drug price setting authority, that reduce follow-on discoveries and inventions that benefit cancer patients. The IRA discourages biopharma innovation, which causes patients to suffer more and increases long-term health care costs. Studies find that the IRA’s antipatent and price control provisions have already chilled more than 50 follow-on drug research projects and killed 26 prospective cancer drugs from being developed—far more than the one new medicine the Congressional Budget Office underestimated the IRA would kill in 10 years.

A Time for Renewal

The occasion of America’s 250th birthday provides the opportunity to consider our heritage—particularly what the Founders bestowed on posterity through a patent and copyright framework that applies the God-given model of creativity plus ownership producing flourishing, prosperity, and improvement of the human condition.

If we act wisely, as To Invent Is Divine discusses, we’ll embrace our divine image-bearing and restore the creativity-ownership-centered American IP system. The stakes are the difference between surviving and thriving—as individuals, as a nation and as a flourishing people.