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What is a Patent?
The patent system is bursting at the seams. In many areas, if not in all, the patent system no longer accomplishes what it is designed to do, mainly, to to promote the "Progress of Science and useful Arts" For evidence of this fact, look no further than the crumbling music industry or the broken pharmaceutical system. Given that the system is breaking down, other than dismantling it in its entirety, is there a way to fix it? This is the question I'd like to explore.1 | |
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< | The current system gives patent holders many of the same rights a real property owner would have. Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.
The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if it wants to. So, patents are optional.
Agreed, and, having read the position in your paper I wholeheartedly agree. Nevertheless, the concept of intellectual property rights may not be encoded in the Constitution because they pre-existed the Constitution . Such rights did not come, generally, from the common law but from statute ("creatures of statute" as it was said). In English history, copyright law goes back to the early 18th century (Statute of Anne). In American history, before the Constitution passed (after the Revolution), some "states" created patent systems of their own. One of the first pieces of major legislation Congress passed (1790) was the Patent Act. All of this goes to show two things. First, patents/intellectual property may have some historical cultural grounding with people and human nature to have enterprise in their work. Personally, I don't reject this view today (clearly)--but I think that the system persists in its current form to maintain power structures and in some cases to actively inhibit human happiness (expounded upon later). Second, and more important, I think your position misinterprets what the Constitutional provision is in effect. Technically, your comment is spot on. However, in view of historical circumstances, the provision is clearly an allocation of a power (patent making) that was presumed to have existed and would subsequently result in the creation of patents.
Second, if patents are personal property, rather than real property, extending real property doctrines to them seems risky, formally (real or personal, pick) and logically. Real property is tangible, while patents have no physical existence. When trespassers occupy real property, the land’s utility to the owner decreases. No reduction in the utility of a patented innovation results from the infringer’s use of it. The knowledge contained in a patent cannot be exhausted, and is therefore a public good. The “taking” of a patent is, then, the making of a public good out of that which already was a public good. This illogicality is latent in the statutory scheme of § 1498, and I’m not sure why we would want to extend it further, by exercising the statutory taking power widely, without a strong need to do so. Also, for a taking, compensation must be paid, which might be very costly depending on the pricing scheme chosen.
Not entirely sure what you are getting at here but a couple comments. First, Kelo is in regards to real property, however, it by no means extends or limits my argument. The power to repossess the patent is statutory and needs no Constitutional justification. However, I mention it only to point out what a "public good" may be. Also, there is a legitimate counter argument that there is a reduction in the utility when infringers use patents, a so-called field reduction. When an infringer uses one patent, it reduces the value of existing and future patents (perhaps, this is the classic argument). I feel this is too big of an elephant to ignore. Of course, I think the better question to ask is whether the costs (to society, to enforce) here exceed the benefits (innovation, research). | >
> | The current system gives patent holders many of the same rights a real property owner would have. Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government can use a patent as long as it pays just compensation. Kelo ruled that a government takings of private land for economic development constitutes "public use"; the same might be said of patents. Patents can and should be rescinded whenever the patent clearly and unambiguously stands in the way of economic progress or social well-being. | | | Why do we have Patents? | |
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< | The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. A huge number of great inventions have sprung from the zeal of inventors committed to science or the sheer enjoyment of tinkering in a lab or shop. Similarly, most drug discoveries occur not in pursuit of compensation from pharmaceutical companies, but from competition for NIH and NSA grants to university research labs. Most inventors never realize much profit from their inventions, but invent compulsively anyways, due to curiosity and the chance of being someone who matters. I do recognize, however, that some inventions occur in a corporate context where patents allow higher profits. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being by incentivizing authors to invest time and money in their enterprise | >
> | Patents give their owners rights to future profits. In doing so, patents create incentives to research, to develop, to invent, to produce, to expend resources in order to bring the patented item into being. Patents may also encourage disclosure. But our patent system, indeed the concept of a patent, may be a relic of the past. Patents originated in a different time when inventions consisted of tangible goods: think telephone or light bulb. Now, a substantial portion of patented inventions consist of the intangible: think genes and software. This author finds it unlikely that such intangible things were originally intended to fall under patent protection. So it goes.
| | | There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most contemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become excessive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive. | | |
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> | | | | (1) On the general validity of things like software patents, I wholly agree with Eben. I think that it is patently absurd that one may patent a software program which ultimately consists of a string of numbers. Moreover, his formalist legal analysis that "the appropriate invocation of the principal of novelty and non-obviousness to software results in zero software patents" must be correct. Frankly, if one can patent these sorts of numbers, why can I not patent pi? Of course I can't, because, if I could I would own just about everything.
But, this is not the focus of this paper. In fact, I'd suggest that the solution I am arguing for is opposite of Eben's goals and many of my own personal views on the issue. Mainly, I am trying to come up with a way to preserve the patent system and try to increase well being within current legal structures. | |
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> | One last comment: I don't think the total abolition of the patent system, at this point in time, is a political feasible reality. After doing more reading, I don't support the ideas put forth here for a few different reasons. I still think this is an interesting thought though.
| | | -- MatthewZorn - 20 April 2010
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