The United States needs someone in government whose sole job
is to propose policies that advance the freedom to create and innovate,
including freedom from draconian intermediary liability and poor quality
patents.
This need became crystal clear last week, when I went to my third or fourth Obama Administration gathering to celebrate the
importance of strong intellectual property protection to the United States.
About 100 people jammed into the lovely Indian Treaty Room
at the Eisenhower Executive Office Building to hear, among others, Secretary of
Commerce John Bryson, US Patent & Trademark Office Director Dave Kappos,
and Deputy Secretary of Commerce Rebecca Blank tout a new Commerce Department study
designed to show that greater IP rights lead to more jobs and economic growth, and as a result, greater public welfare. In a rare kumbaya moment, the Presidents
of the US Chamber of Commerce and the AFL-CIO joined hands to extol “IP-intensive industries” and denounce rouge websites.
The host of the event was Victoria Espinel, the US
Intellectual Property Coordinator (IPEC), who came up with the idea for the
study. I was struck by how she and her fellow
panelists cloaked their comments in how critical IP protection is for
“innovation” and “entrepreneurs.”
Espinel began her remarks by saying that “[A]merica has
always been a nation of innovators”, specifically naming Google and Amazon, and
that “protecting intellectual property underpinning that innovation is an
economic imperative that this Administration takes very seriously.”
Secretary Bryson called US citizens “start-up people” who
“drive innovation.” And that
innovation, in his opinion, is best preserved by “recommit[ting] ourselves to
strong intellectual property protections.”
I won’t get into the report itself and whether its
methodology is sound. We’ll write about that soon. But all the talk of
innovation, start-ups and entrepreneurship seemed very strange, and almost
contrived, given the vehement opposition to maximalist enforcement
initiatives like SOPA and PIPA from venture capitalists and entrepreneurs,
as well as big companies like Google and Amazon.
Innovators and venture capitalists are also the source of complaints
about the quality of patent applications granted by the PTO. While Director Kappos’ comments focused
almost entirely on how his agency is streamlining the patent process to make it quicker
and easier to get a patent, nary a word was said about how best the PTO can
help solve the escalating patent wars and the flood of business method and
software patents that enable them.
The US government needs an “Office of Innovation,” headed by
an Innovation Coordinator equal in stature to the IPEC. That office would look at the contributions
to the economy of those industries that rely not on maximum IP enforcement, but
on openness, sharing and the balance that the Constitution requires of the
copyright, trademark and patent systems.
I’d venture a guess that a study of those industries would
also find that their contribution to the US economy is similarly enormous.
Congress created the IPEC position in 2008 as part of the
PRO-IP Act, a law that Public Knowledge opposed in part because it took the “IP Czar” position from the Commerce
Department and put it in the White House. We worked with the Bush Justice Department to oppose that bill, because they also felt that IP enforcement shouldn’t be politicized. But we lost that battle, and Espinel has done a fine job (perhaps too
good from our perspective) raising the profile of IP enforcement.
Of course, the office of the IPEC is just one of many in
government dedicated to maximizing IP enforcement. Among
other agencies, the State Department, Department of Justice, US Trade
Representative and Department of Homeland Security all have IP enforcement
offices. How many Offices of Innovation exist in these
agencies? Zero.
It’s time for Congress to create a counterbalance in
government, and a United States Office of Innovation is a good place to start.