The statement below is from Professor Adam Mossoff, whose law review articles (here and here) were heavily cited in Justice Gorsuch’s dissent (joined by Chief Justice Roberts) in today’s opinion in Oil States v. Greene’s Energy.
Professor of Law
Antonin Scalia Law School, George Mason University
For the first time, the Supreme Court holds that patents for new inventions are regulatory grants similar to monopoly grants for bridges or toll roads. The decision ignores the Supreme Court’s own substantial case law over the past two centuries that patents are private property rights that secure the fruits of productive labors under the Constitution—like all other property rights in homes, farms, and animals. Instead, the Court rules that the U.S. follows the original practice by English Kings and Queens who bestowed royal privileges on their subjects as “patent” grants, applying to U.S. patent owners the historical dictum that “what the government giveth, the government can taketh away.”
As the dissenting Justices point out, this turns the Constitution and the U.S. patent system on their heads. It perverts the function of the constitutional protections afforded to the property rights of all U.S. citizens, an increasingly commonplace occurrence today under the growing and all-encompassing administrative state. It also undermines the foundation that patents provide to the U.S. innovation economy, as stable and effective property rights are the necessary platform from which inventors, venture capitalists, and companies create the new products and services that have made life a modern miracle.