The constitutional key to the Golden Age in America

OPINION:

At his inauguration, President Trump declared that the “Golden Age of America begins right now,” marking the beginning of an era in American innovation that demands we once again protect the intellectual property rights of American innovators as a matter of course. Strict enforcement of those rights has been critical to making America great for more than two centuries, and it is critical to making America great again.

While the administration seeks to level the playing field to rebuild American manufacturing and bring back good-paying jobs to American workers, it must protect innovators and their advances in science and engineering for the Golden Age to last. The future of American prosperity depends on the strength of innovative ideas and the ability of innovators to protect them.

Our founders enshrined strict enforcement of intellectual property rights into the Constitution “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Innovators are given the right to exclude, or enjoin, others from trespassing on their property to incentivize them to invent the future. This constitutional right, which is upheld in our U.S. patent laws by Congress, serves as the legal foundation for the American dream.

In recent years, our legal system has become far too slow in protecting this constitutional right for innovators — justice delayed is justice denied — and far too forgiving in the face of continued infringement. Injunctions are now the exception, not the rule, without which the exclusive right is meaningless.

America must keep its promise of exclusive rights to those who sow the seeds of our future. A nation that forgets to honor its innovators forgets how it became great.

Over the past two decades, Big Tech has done a masterful job of lobbying our government to weaken the exclusive rights of innovators. Although there are many examples, two are hard to believe. In 2006, in eBay v. MercExchange, the Supreme Court removed the presumption of an injunction for Little Tech to stop continued infringement of its exclusive right. In 2011, Big Tech lobbied Congress to pass the America Invents Act, a misleading title, to put into place a new bureaucracy at the Patent Office to review the validity of any patent alleged to be infringed before allowing an infringement lawsuit to proceed, a process that can take years.

Big Tech leverages these changes to exploit innovators using a playbook known as efficient or predatory infringement. They create products that include the patented innovations of Little Tech competitors, knowing that few can afford a court battle that can last years and cost millions of dollars. Google’s former CEO, Eric Schmidt, shamelessly admitted this playbook last year.

Congress must defend Little Tech against those who hold the reins of power. Restoring balance to the American innovation ecosystem is a national imperative. Passing the bipartisan RESTORE Patent Rights Act is a critical first step. This legislation would “restore the presumption that courts will issue an injunction to stop patent infringers, strengthening protections for U.S. inventors, entrepreneurs, universities, and startups.” Restoring this constitutional right promised to American innovators is not about left or right. It’s about whether America leads the world or gets left behind.

Injunctive relief is the only proven tool with the force to stop Big Tech from engaging in predatory infringement. Without the credible threat of an injunction, Big Tech will infringe first and litigate later, weaponizing an army of lawyers to turn justice into a war of attrition for innovators.

Xockets, a startup that invented technology that enables the artificial intelligence revolution, has seen firsthand how Big Tech infringes and then turns its delay tactics into a game of “catch me if you can.” In Xockets’ ongoing patent infringement and antitrust lawsuit against Nvidia and Microsoft, these modern-day “Goliaths” have more than 30 lawyers on the docket papering up the file and slowing down the court.

As a Xockets board member, I’m on the front lines of this fight to preserve competition and protect innovation, a guardian of creation who can no longer remain silent. I am witnessing up close the consequence of Big Tech’s decades-long push for federal and judicial reform, which irreparably harms innovators.

Many other experts also are speaking up. Daron Acemoglu, a professor at the Massachusetts Institute of Technology and a Nobel Prize recipient in economics, recently authored a piece in the Financial Times demonstrating how exploitative and efficient infringement can be for innovators.

Adam Mossoff, a visiting fellow at The Heritage Foundation, demonstrates in another piece how the RESTORE Patent Rights Act would end predatory infringement and restore balance to our intellectual property circle of life, ensuring Big Tech once again engages in good-faith negotiations to pay a fair market price.

Restoring injunctions is not a luxury. It is the legacy and the constitutional key to America’s Golden Age. This era will not be built by monopolies but by innovators, dreamers and those who dare to build the future.

We must level the playing field and restore their power to protect what they bring into the world. Only then will Mr. Trump’s vision for America endure and echo into eternity.

• Robert Cote started Cote Capital, an intellectual property investment firm, after a long career practicing intellectual property law. He is the lead investor and director of Xockets, a startup that invented the advanced data processing unit, a foundational technology of the artificial intelligence revolution.