Posted on 06/05/2013 9:19:55 AM PDT by indthkr
Another give-away to big businesses at best.
At worst we may see patents denied or delayed based on political views and donations.
Obama moved us to be like the rest of the world with first-to-file which gives more leverage to big corporations over individuals and small businesses which formerly competed on a more level playing field.
And I respectfully disagree with your viewpoint. I've got two upcoming cases of individual inventors against corporate giants with 100% proof that the corporate giants stole my clients' intellectual property. Undoubtedly one will be named a patent troll, but only because the corporate giant put my client out of business.
Otherwise, patents are property, and property should be transferrable to the person who is willing to pay most for it given the seller is willing.
Again, you describe the current state of the law: patents are treated as (and called) property, but they are a funny sort of “property”. Property doesn’t cease to exist after a fixed term, while patents (and copyrights) do.
If the law treats patents (while they exist) as property, that entail the right to sell them under terms agreeable to the current holder. The point of my post was political — about what the state of the law should be — not legal — about what the state of the law is.
You say you are representing two inventors. Under the usual usage of the phrase, “patent troll” refers only to entities who have no intention of using the patent directly or indirectly to actually produce (or implement) the invention, and simply seek to profit form the holding of the patent by suing those who do. I seriously doubt your clients are patent trolls — I’ve never heard of an inventor who doesn’t want his or her invention to be produced (or implemented in the case of business-plan or method patents) — though I suppose there are strange people in the world (’Heh! heh! I’ve patented this great invention, I’m never going to build it, nor sell the rights to anyone who will, but now when anyone makes one I can sue them!!!’ Defending the interests of such strange inventors might manage to be constitutional under a strict construction, but certainly does not serve the Founders’ intent of promoting progress in science and the useful arts, and is very questionable policy.).
And this is clearly not a workable solution to the problem, as there are plenty of baseless patent cases being filed by patent trolls.
In my view, a simple solution is to align patent law with trademark law to require an owner to "use it or lose it." If an inventor doesn't use the invention, he loses patent protection. That way, an inventor could still sell a patent to those that wanted to use it in production, but it would prevent people from acquiring patents for no other purpose than to sue supposed "infringers."
Lying awaking in bed last night, I realized the strongest argument for patents not being property in any moral sense, however courts and statutes may treat them — independent discovery — and at the same time why I have an almost visceral objection to the reification of copyright and patent as “property”.
Consider the following circumstance: X makes a discovery and on the basis of it patents a device (or algorithm or business method). Y, knowing nothing of X’s invention, perhaps even simultaneously, makes the same discovery, and proceeds to start producing said device (or writes a program implementing the algorithm or applies the business method in his business). According to your metaphor, Y has “stolen X’s intellectual property”.
You see the limit of the metaphor: Y never interacted with X, or with X’s knowledge, and has deprived X of nothing except the enjoyment of a government granted monopoly. A thief stealing actual property must interact with his victim to the extent of laying hands on the victim’s property, even if the victim is absent when this is done. Unless you are claiming that X’s patent registry has created real property in the realm of the Platonic forms, and that Y happening on the same ideal form and using it somehow carried off the Platonic form of the invention that X now owns, the notion that an independent discovery constitutes “theft” is absurd. (And quite frankly, I regard the notion of patent registry making Platonic forms into property absurd.)
Perhaps the reason this circumstance seems compelling to me is that I was party to one of the most noted instances of simultaneous discovery in the the recent history of mathematics: the HOMFLY or HOMFLY-PT polynomial (I’m the Y in the acronym for the discovers’ names, representing four independent discoveries in the West in the original, shorter acronym, and with the late-realized
independent discovery by two Poles honored in the appended PT in the now most-popular name). We didn’t even squabble over priority, just agreed to write a six-author research announcement, a circumstance so strange to many peoples’ minds (contrast with the behavior of geneticists in instances of independent discovery), that I and the others a reporter could reach by phone were interviewed about it for the NYTimes’ Science Times.
Mathematical theorems and proofs, except those instantiated as algorithms, are blessedly not subject to patents — and yes, algorithms are theorems with proofs, that’s the upshot of, the Curry-Howard isomorphism, a theorem in the corner of mathematics called theoretical computer science. If they were, all progress in mathematics would grind to a halt. The sense that all intellectual activity (science and the useful arts included) flourishes in the way mathematics does, on free exchange of ideas, naturally inclines me to a miminimalist position on the ideal scope of copyrights and patents.
The same sense extends to copyright: if “rightholders” in Australia use the precedent established by the flute riff in Men at Work’s “Down Under” being held to be copyright infringement because it quoted the melody of the still-under-copyright “Kookaburra Sits on the Old Gum Tree”, they could shut down all of Australian mathematics. Mathematicians would need to pay royalties to scientific publishers for quoting theorems in papers the publisher “owns”, and otherwise would be “stealing the publisher’s intellectual property”. Yes, currently quoting a theorem is fair use, but the whole notion of fair use is absolutely necessary to the American constitutional purpose of copyrights and patents, and presents another problem with reifying them as “property”. I suppose an easement might be an analogue for ordinary property — it’s yours, except the public can use the sidewalk on it — but actual property functions perfectly well for its purpose in the absence of easements, while copyright won’t promote progress in science and the useful arts without a fairly robust notion of fair use.
I wish you all the best in your work defending the monopoly rights of actual inventors, but do not think there is any argument you can make which will convince me that treating copyrights and patents as property does not fail all four of the criteria I set forth in my original post to you.
No, it is the same as a person taking possession of a piece of property that a second person found later. It is a form of trespass. Regardless, patents are a foundation of wealth creation in the modern world.
Again, a bad analogy: in the case of actual property, the person finding an object and retaining it deprives its previous (and rightful, if prior possession can be established, rather than merely claimed) owner of the object, all that an independent discovery deprives a prior patent holder of is enjoyment of monopoly rights.
The deeper flaw in considering patents and copyrights to be property (again, remember, I not denying that the legal status quo treats them as such, but arguing that the legal status quo treating them as such fails my four critiques), particularly with the notion of “theft of intellectual property” is that even copying, much less independent creation, does not deprive the inventor of the idea (or the author of his words, or the musician of his melodies and harmonies,...), but at most of (sometimes merely putative) monopoly rents deriving from the use of the idea (words, melody,...), while theft deprives the owner of his property. This is why patent trolling (in the narrow definition) is most obnoxious: it is litigation on basis only of putative monopoly rents, not an actual deprivation of revenue. (Again, your inventor clients who have been put out of business by large corporations violating their monopoly, have a claim they are being deprived of actual revenue, in a way that a patent holding company does not.)
Indeed patents *are* a foundation of wealth creation in the modern world, but I would argue that the superstructure of patent law that treats patents as property, is actually an impediment to wealth creation and merely serves the interests of incumbents in the market (who invariably like to have state-granted monopolies).
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