April 2011

By Marla Grossman, a partner at American Continental Group.

The Obama Administration’s emphasis on stimulating the U.S. economy and creating U.S. jobs, as well as the increasing recognition from Congress that a strong patent system is critical to an innovation-friendly government, has made it more important than ever for Congress to pass a permanent legislative solution to the damaging practice of taxing innovation by diverting user fees away from the U.S. Patent and Trademark Office (USPTO). Such a solution is part of the patent reform bill recently passed in the Senate, S.23, and is also part of the patent reform bill introduced by the House last week, H.R. 1249.

The USPTO is the federal agency that processes patent and trademark applications, disseminates patent and trademark information, and administers the laws relating to patents and trademarks.

Since 1990, the USPTO has been entirely funded through the payment of patent and trademark application and user fees; before 1990, taxpayers supported the operations of the USPTO. However, with the passage of the Omnibus Reconciliation Act of 1990 (OBRA), taxpayer support was eliminated. OBRA imposed a significant fee increase on America’s inventors in order to replace the taxpayer support the USPTO was, until that point, receiving. The fees paid by users of the patent and trademark systems are referred to as “USPTO user fees.” The revenues generated by this fee are collected by the USPTO and then transferred into a general Treasury account. The USPTO is required to request that the Congressional Appropriations Committees allow the agency to use the revenues in the account.

By Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University, and the author of Madison’s Nightmare: How Executive Power Threatens American Democracy. This post is a response to yesterday’s BookTalk post by Professors Eric Posner and Adrian Vermeule, and a critique of their new book.

I disagree so deeply and at so many points with The Executive Unbound: After the Madisonian Republic, the new book by Eric Posner and Adrien Vermeule, that I feel compelled to begin on a positive note. Theirs is a challenging, provocative work.  Regular engagement with interlocutors as thoughtful and well-read as these two authors would deepen anyone’s thinking. To those who remain normatively committed to a robust rule-of-law vision of presidential authority, they pose a more interesting challenge than do putative constitutional originalists who find the founding generation oddly sanguine (and modern) in their thinking about executive power. 

In addition, two implications emerge from The Executive Unbound that I wholeheartedly support. One is a recognition of the challenge (the authors would say “impossibility,” which I do not endorse) of reshaping the political landscape in a way that would make the revitalization of legal checks and balances a realistic program. This is really the point of their blog post. The second is the importance of strengthening the institutions that check the President politically, not just legally. I agree enthusiastically.

For Professors Posner and Vermeule, professorial contestation about Framer intent is quaintly beside the point. As they describe it, the Madisonian vision of checks and balances simply fails as a description of how the administrative state works. And, because, as they depict that vision, it actually cannot be implemented, it ought not to be our normative framework either. Instead, we should recognize that, under current institutional arrangements, we have an executive branch that can pretty much do as it pleases within constraints that are significant, but almost always more political than legal. Our normative ideal should be the strengthening of these extralegal institutional constraints to try to ensure that what the executive branch winds up doing with its inevitable discretion is at least consistent with public opinion. 

So here are my four essential points of disagreement.