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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.