Why Citizens’ Local Patent Office Trumps Federal Preemption

Can Denver citizens legally create a local patent office, independent of the U.S. Patent and Trademark Office? That effort is now under way to counter the lingering impact of the illegal secret USPTO Sensitive Application Warning System (SAWS), used during 1994-2015. The SAWS program delayed some patent applications indefinitely without explanation to patent applicants. Targeted applications included: [Source: USPTO]

• Anti-global Warming devices or any other device operating at the global scale
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• Motor, power plant, or other device which is self-sustaining (perpetual motion) or appears to violate the laws of chemistry or physics
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• Claiming prevention or curing of diseases which were previously considered impossible to prevent or cure

In POWER UP – How to Create a Solution-Based World in 100 Days, I proposed such a local patent office to end the suppression of life-saving technologies. Below are some possible legal arguments against it, followed by my own counter-arguments based only on common sense. I have no academic or professional background in law. However, the patent attorney who exposed the illegal SAWS program in the news media, agreed that a local patent office could be legal.

Legal Arguments

From a government attorney: ”This measure may be preempted by federal law, including provisions of the United States Constitution and federal statutes and case law regarding patents.”  

(See U.S. Const., article I, Para 8; see also 35 U.S.C. para 1 et seq.; 28 U.S.C. para 1138 ["No State court shall have jurisdiction over any claim of relief arising under any Act of Congress relating to patents..."];

The local patent office proposed for Denver is not a case in state court, nor a claim of relief arising under any Act of Congress relating to patents. It is a proposed ordinance seeking enactment by the People in an election vote. It is intended to offer relief for the People from the unconstitutional and illegal acts of the U.S. Patent and Trademark Office, which itself has operated in conflict with the Act of Congress to issue patents. 

Dow Chemical Co. v. Exxon Corp. (1998) 139 F.3d 1470, 1473 ["federal preemption occurs whenever [local laws] provide patent-like protection to subject matters addressed by federal law”]; 

This Denver ordinance, if enacted, would provide “patent-like protection to subject matters” that have unconstitutionally and illegally not been

“addressed by federal law”. So federal preemption would not apply because the Denver patent office would be operating in a different “field” than the U.S. Patent and Trademark Office or federal law and therefore presenting no conflict.

Regents of the University of California v. Caldera Pharmaceuticals, Inc. (2012) 205 Cal.App.4th 338 ["Federal courts have the exclusive jurisdiction to try suits that are based on patents, which themselves are a creature of the federal Constitution."], cert. den., 568 U.S. 1193 (2013).)

The proposed Denver initiative is not a lawsuit and not about patent infringement. It is not challenging patents issued by the USPTO. It is an attempt to offer protection of intellectual property for inventors whose patent applications have been illegally delayed, or in some other way obstructed, by the federal government.

A strong case can be made that Federal preemption of lower courts regarding federally issued patents does not prohibit any U.S. city, county or state from issuing patents, within their jurisdiction, especially for technologies that the USPTO has illegally chosen to obstruct or delay. The USPTO also issues trademarks. However, states can issue trademarks too, that are protected only within the state. Therefore, it is not a big leap for extraordinary technologies to be issued patents that are enforceable only within the state, county or city.

Ultimately, the legality of this proposed Denver ordinance might be determined in court. If so, we should look forward to the USPTO lawyers explaining why they think delaying patents for cancer cures is good for children who are dying of such deadly diseases.

Reality Check

It’s laughable for anyone to suggest that states or municipalities cannot offer patent protection for life-saving technologies. In the eyes of the Federal government, everyone in state, county and municipal governments, school systems, and non-profit organizations throughout the U.S. who are collecting, disbursing or receiving cannabis revenue, are guilty of federal crimes! They are involved in a multi-billion-dollar illegal money-laundering operation for a multi-billion-dollar illegal drug industry. But they are doing it anyway, even though “Marijuana remains illegal under federal law, where it’s still classified as a controlled substance”, as stated on the State of Colorado government website.

By contrast, Denver citizens’ proposed ordinance for an alternative patent office is in line with at least the spirit of the power of Congress, with respect to patents. Whereas the U.S. patent office itself, has been violating the Constitution, the spirit of the Power of Congress, and letter of the law regarding processing patent applications and issuing patents for a wide range of extraordinary technologies.

Given what’s at stake, is a new law really needed to ensure fair protection of extraordinary technologies? The truth is, President Trump could achieve that with the stroke of a pen on an Executive Order, or even a tweet!

Coming soon:

• “How a Trump Tweet Could Upstage Green New Deal”
• “How Al Gore and Democrats Profit from Climate Problems They Caused”
• “Democrats Hijacked ‘Earth Day’ from Conservative Founder”