Why Isn’t Patent Law as Straightforward as Real Estate Law?: Maybe it Is

by Dennis Crouch

Professor Adam Mossoff recently posted a draft of his essay Trespass Fallacy in Patent Law. The essay is quite short (17 pages) and accessible. Mossoff is able to encapsulate his basic idea in one paragraph. He writes:

One common refrain [from patent critics] is that patents fail as property rights because patent infringement doctrine is not as clear, determinate and efficient as trespass doctrine is for real estate. This essay explains that this is a fallacious argument, suffering both logical and empirical failings. Logically, the comparison of patent boundaries to trespass commits what philosophers would call a category mistake. It conflates the boundaries of an entire legal right (a patent), not with the boundaries of its conceptual counterpart (real estate), but rather with a single doctrine (trespass) that secures real estate only in a single dimension (geographic boundaries). Estate boundaries are defined along the dimensions of time, use and space, as reflected in numerous legal doctrines that secure estates, such as adverse possession, easements, nuisance, restrictive covenants, and future interests, among others. The proper conceptual analog for patent boundaries is estate boundaries, not fences. Empirically, there are no formal studies of how trespass or even estate boundaries function in litigation; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function; it’s the nirvana fallacy. Furthermore, anecdotal evidence and related studies suggest that estate boundaries are neither as clear nor as determinate as patent scholars assume it to be. In short, the trespass fallacy is driving an indeterminacy critique in patent law that is both empirically unverified and conceptually misleading. 

In this essay, Mossoff makes an important contribution to the rhetoric of patent policy.  The most convincing element of his argument is that the trespass metaphor fails. In my view, his broader real estate metaphor also fails because it also does not fit well with the U.S. patent system except in its level of complication and dispute potential.  The reality is that all metaphors fail to fully mirror their subject — by definition a metaphor is something different from its subject.  With that in mind, I see the essay as raising a cautionary flag against over-reliance rather than a complete indictment.  

My more important critique of Mossoff's argument is derived from his suggestion that we hold-off improving the patent system until we know which metaphor is best and whether issued patents are more indeterminate than real estate deeds.  Mossoff writes: 

Until firm factual grounding for this normative critique is first established, commentators, legislators and courts might want to pause before continuing to make fundamental structural changes to the American patent system.

Even if Mossoff's base critiques of the trespass metaphor are all correct, we still know that the U.S. patent system has room for improvement.  The fact that the real estate market is in shambles should not serve as a justification for officials (or comentators) to fail in their duty to make our system the best that it can possibly be. 

 

119 thoughts on “Why Isn’t Patent Law as Straightforward as Real Estate Law?: Maybe it Is

  1. He wasn’t there in the room. Documents are signed and not dated? I wouldn’t sign a Document and not date it if there was a line, and neither would my husband. These have to be forgeries. I also never received any communication on what we could or could not do while in …. because we never discussed nor did we ever receive copies! and he would never ever speak with me.
    So apparently no date and they have to be a forgery… we are in FLUX! We were in FLUX!

  2. That you have no answer to my question how, in the absence of a patent system, we would ever have any new pharmaceuticals: now for me that IS an argument in favour of having a patent system.

  3. And your response at 2:21 PM is neither an answer nor an argument – it’s a dodge pure and simple.

    Try again.

  4. This is not an argument for the patent system–that Stephan Kinsella has not “revealed to MaxDrei” how the pharmaceutical industry would work in the absence of state regulations. It is fine to have questions. But questions are not arguments.

  5. Thanks for taking the time to reply, and reveal to me your anarchic prescriptions. If “State” means Rule by Putin or Rule by Party, then I can see why you’re against it. We just disagree on whether that sort of state would be better or worse than complete anarchy.

    But my experience in England is that it doesn’t have to be one or the other. I imagine a State with a legislature, a judicature and an executive branch. I would take all the good bits of the Constitution of the USA but tweak it just enough to prevent politicians being bought by interest groups. For me that’s a much better way than anarchy, to raise an individual’s quality of life.

    And you still haven’t told me how without a patent system your anarchy would deliver the new life-saving drugs that we will need to survive on planet Earth.

  6. anon, I probably am more of the Ayn Rand variety than of the anarchist variety. We need government to establish and protect rights in property. However, the government needs to stay out of people’s private lives. Unless one actually hits the other man’s nose, our freedom to swing our fists should not be impaired. If you want to drink yourself into oblivion, or use other means, that is your right in my view.

    I’m not so sure libertarianism extends to the non protection of property. That is communism.

  7. “Stephan, you write “…the mammoth state you need to impose patent law, also imposes crushing taxes and FDA and other regulations on pharmaceutical companies….” Emotive words like “mammoth” and “crushing” do nothing to get me on board. Quite the opposite.”

    Your loss. The state is mammoth and engages in huge distortions and puts impediments in the place of companies prospering and innovating. If your goal is to improve innovation and prosperity, get the state out of the way, don’t ask for it to do more!

    “I said “new” drug, and you answer with century old staple industrial product aspirin. That’s no answer.”

    Aspirin, Tylenol, were new at one poitn. The point is they are still being sold at a premium. why is this? Because of reputation. Many people pay 50-100% more for the name-brand drug when the generic is sitting next to it. THe point is there is a way to recoup costs and make ap rofit by selling something even in the face of competition.

    “You invite me to read Boldrin & Levine. Of course, you have done that already. If, having done that, you still can’t answer my question well you know what, I’m not going to bother with B&L.”

    The answer is simple: engage in R&D, make the product, sell it for a profit. The only reason you would not accept this is be/c you have accepted false claims and have a utilitarian concept of law. I do not. I have a principled, propertarian view. THe utilitarian, empirical case is strictly illustrative or lagniappe for me. It is secondary. BUt you seem to care about it. So do B&L. They give exhaustive detail about the numbers–they show clearly that people like you are resting your conclusions on simply false assumptions.

    “Where does this idea come from, that Big Corp are angels and Big State the opposite?”

    I do not think they are. My argument does not rest on this idea. Just b/c Big Corps are not angels does not mean patent law is justified. Further, one reason there are Big Corps is the state props them up with various policies such as patnet law, which helps create oligopolies, and other policies like minimum wage and other regulations, which larger corporations can afford more readily than smaller ones (e.g. Walmart pays workers above minimum wage already, so of course it lobbies for a higher minimum wage; raising it will not affect Walmart, but it will hurt some of their smaller competitors). The state and big business are in bed together.

    “For me, The State is there to protect its citizens and to promote the general welfare,”

    The State’s nature is that of a territorial monopolist of the services of law and justice, with it being the sole decider even in cases between its subjects and itself; leading to predictable results.

    ” while Big Corp is there to feed on them. Perhaps the FDA is “mammoth” but even so, I personally would rather live in a world with an FDA than one without one.”

    What you would “rather” does not justify the state’s forceful imposition of these laws on innocent companies and individuals–thousands of people suffer and die every year because the FDA denies them access to treatments.

  8. Stephan, you write “…the mammoth state you need to impose patent law, also imposes crushing taxes and FDA and other regulations on pharmaceutical companies….” Emotive words like “mammoth” and “crushing” do nothing to get me on board. Quite the opposite.

    I said “new” drug, and you answer with century old staple industrial product aspirin. That’s no answer.

    You invite me to read Boldrin & Levine. Of course, you have done that already. If, having done that, you still can’t answer my question well you know what, I’m not going to bother with B&L.

    Where does this idea come from, that Big Corp are angels and Big State the opposite? For me, The State is there to protect its citizens and to promote the general welfare, while Big Corp is there to feed on them. Perhaps the FDA is “mammoth” but even so, I personally would rather live in a world with an FDA than one without one. Little me, even with the help of my big insurance company, is no match for innovative pharma (even if I were still alive to go after them).

  9. [cont]

    The short answer is: people would make drugs in the absence of patents, to sell products to people. Just like any other company goes into business to make hamburgers. A burger join knows it will face competition from others but goes into business anyway. Same with name-brand drugs like Bayer Aspirin or Tylenol. In fact, the mammoth state you need to impose patent law, also imposes crushing taxes and FDA and other regulations on pharmaceutical companies; if you really want to promote innovation, lower taxes and regulations and get rid of the FDA; don’t ask the state that is HARMING business to add yet another state regulation to slightly make up for the harm it’s doing already; stop doing the harm!

  10. [cont]

    Moroever there is NO evidence that the patent system DOES enable such things as you want. Further, there is no empirical evidence that without the patent system there would not be innovation. To the contrary: if you will just see ch. 9 of Boldrin & Levine’s Against Intellectual Monopoly, available free online against monopoly, they explain how the patent system is emprically not necessary for pharmaceutical development and how nations in the past like Italy have gone without patent protection for drugs for decades and been at the top of innovation in this area.

  11. [cont]

    “I’m now wondering what are the “factors” (as you call them) that go into the making of a new drug molecule, and how useful to me is the drug that I have made out of those “factors”. Unless I am dying of the disease in question, no use at all. But I still don’t see how, absent a system of patents, there are ever going to be any drugs created, to save any lives at all. I asked that before, and got no answer. Can you answer now?”

    Well, I am reluctant to answer such questions because they are worded as if it’s obvious that unless I can show you how, we have to have a patent system. That is, you are smuggling in a utilitarian/consequentialist mentality, which I believe is not so obvious. In fact that is now how we decide what laws are just: we don’t just sit around thinking of end goals we think “should be met” In society (like: there ought to be ‘enough drugs’ created) and then just rubber stamp any artificial legal scheme dictated by a bunch of politiicans that they claim might help you achieve this predetermined “goal.” The only goal of the law is: justice; which means: giving someone his due; whihc means: protecting his property rights from invasion by others. That is the sole goal of law.

    [cont]

  12. [cont]

    “Nice to read though that creation and production increase wealth. We would want to encourage creation and production then, I suppose. What can we do to encourage creation? Anybody got any ideas?”

    Yes, it’s called “private property rights.” You are free to transform objects into a more valuable configuration,a nd your incentive is: that if your property rights are secure you get to use it, or sell it for a higher price to a customer. This is even though others might see what you are doing, notice that it is popular, that you are making a profit, and start to emulate you and compete with you. Imagine you are the first guy who thinks of building a log cabin, instead of living in caves? What is your “incentive”? Why, to improve your situation. Or to get a reputation as the “First and best” log cabin builder so others will hire you. Who konws? The fact that as soon as you build the log cabin, others will realize this is possible and get the idea and start building their own cabins, does not mean you are unable to do it.

    [cont]

  13. “When the State has not set up any system of IPR, there is no “property” in a creation.”

    Depends on what you mean by “creation.” If I own some marble and carve a statue into it, the statue is my “creation” and I own it b/c it is physical object the material of which I was already the owner. So I do own my creation. If I make a million ipads, I “create” them and own them. That’s why I can sell them.

    [cont]

  14. That helps. Thanks. When the State has not set up any system of IPR, there is no “property” in a creation. Nice to read though that creation and production increase wealth. We would want to encourage creation and production then, I suppose. What can we do to encourage creation? Anybody got any ideas?

    I’m now wondering what are the “factors” (as you call them) that go into the making of a new drug molecule, and how useful to me is the drug that I have made out of those “factors”. Unless I am dying of the disease in question, no use at all. But I still don’t see how, absent a system of patents, there are ever going to be any drugs created, to save any lives at all. I asked that before, and got no answer. Can you answer now?

  15. Do you really think that the insult was masquerading as an argument?

    And you think MaxDrei talks like a total amateur?

  16. “You know, you lose me when you assert that a new and inventive blockbuster drug is no creation but just the same property as the carbon raw material in its molecule, and that the supercomputer is no further creation than the silicon raw material in its chips. Then you point out that IPR can exist only within a State and, as States are illegitimate, so is IPR.”

    I never said that a new drug is not a creation. I have explained, however, that creation is not a source of property rights. There are only two sources of property rights: original appropriation (that is, homesteading a previously unowned scarce resource), or contract–that is, acquiring an owned thing from a previous owner contractually. “Creation” is not a source of property rights, nor is “production”. Creation or production are means of increasing wealth, bu not property. Production presupposes you already own the raw materials that you rearrange into a more valuable configuration–so when you use your intellect to re-shape existing, already-owned materials, into a more valuable configuration, then you increase wealth or value. But you own the resulting product because you already owned the factors of which it is composed. If you had not already owned them you would not have been entitled to transform them. If I shape metal into a sword, I own the sword not because I produced it, but because I already owned the metal. By shaping it into a sword I have increased my wealth, because the sword is presumably more useful and valuable to me than raw iron ore.

  17. I had not realised your theory was quite so fatuous

    The tinfoil hat should have been your first clue.

  18. Stephan, thanks for the Link to your Concise Guide above. It explains a lot. I commend it to other readers.

    You know, you lose me when you assert that a new and inventive blockbuster drug is no creation but just the same property as the carbon raw material in its molecule, and that the supercomputer is no further creation than the silicon raw material in its chips. Then you point out that IPR can exist only within a State and, as States are illegitimate, so is IPR.

    I had not realised your theory was quite so fatuous. I’m very disappointed in you Stephan.

  19. My point has been made clearly and explicitly over and over: patent and copyright are unjust invasions of property rights and should be abolished. As for the “separation from reality” remark–this is lazy insult masquerading as argument. You have no argument for IP. There is no argument for IP. I have never heard a good argument for IP. The best one is: “I want Mickey Mouse’s copyright extended so I can make a few more billion bucks.” Yeah. Good argument.

  20. So here we have a nym ( Kinsella Tinfoil Hats For Sale) whose argument seems to be that … my anti-IP views are not popular. Yes. I am aware that most people believe in IP. Most people also believe in taxes and the drug war. And at one time chattel slavery was popular enough to exist, and the abolitionists then were mocked and ignored, but finally won. Will the IP and drug war and tax abolitionists ever win? Time will tell. But copyright is already being largely neutered thanks to the Internet, digital information, encryption, torrents, etc. This is a good thing. One would hope that legal reality would eventually be forced to comport with human reality (as one law professor recently suggested — link to surprisinglyfree.com), but unfortunately this is not what has happened in the case of the horrific drug war.

    I have a cogent set of arguments against IP (see , The Case Against IP: A Concise Guide and link to c4sif.org). I’ve practiced patent law 20 years, and have looked into this issue in depth. My approach is rooted in respect for individual rights, property rights, and the free market. Once you understand the origin, nature, and purpose of patent and copyright, and the purpose and role of property rights in social life and in the market, you cannot help but come to realize that patent and copyright are completely unjustified derogations from the free market–incursions into it, distortions of it, by a meddlesome, destructive state. IP rights harm human lives, impose literally hundreds of billions of dollars of net cost on the economy every year, and reduce overall innovation and creation in addition to heavily distorting the market, research, and culture.

    None of your rambling potshots addresses this. Your argument amounts to: most people don’t agree with you, an argumenten ad populum. The fact is that neither you nor anyone else is able to justify patent and copyright; like all socialistic measures, like all crime against property, they might be committed but they cannot be justified. You may be able to get away with foisting these schemes on society, but that does not make it right.

  21. Well, there always will be cases where both sides think they ought to win, so I agree it is pure fantasy to suppose that there will ever be a time when the courts are not needed.

    But take the EPO’s Annual Update to its Caselaw Digest (on validity of course, not infringement). More than a thousand new Decisions each year to digest. The most recent issue has 146 pages of interesting new caselaw. But there are only 8 pages on novelty, only 11 on obviousness and only two on enablement. The mine on those topics is more or less worked out.

  22. I’m for legal certainty so high that parties in dispute know at the outset whether the asserted claim is good or bad

    [More Eyeroll]

    Talk about fantasy land. If that were actually the case, the courts would not be needed.

  23. You know, like patent litigation works in England.

    Because English patents are the envy of the world…

    [eyeroll]

  24. You know, like patent litigation works in England.

    LOLZ.

    Here, wear my glasses, they work for me…

  25. Cas, it’s really quite simple actually. Much simpler than you make out.

    I’m for swift (within months, not years) injunctive relief from infringement of claims that are finally determined to be not invalid. I’m for a “Polluter Pays” rule, that operates to lay proportionate cost on parties that persist in asserting bad claims, or persist in their defiance of good claims. I’m for legal certainty so high that parties in dispute know at the outset whether the asserted claim is good or bad, thereby obviating any need to trouble the court, much less the Court of Appeal.

    You know, like patent litigation works in England.

  26. Your argument is not going to convince Kinsella

    Do you think the post of KTHFS is meant to convince Kinsella, or more to spotlight the separation of Kinsella from reality?

  27. does not mean that Kinsella doesn’t have a point.

    What is Kinsella’s point?

    (this is a really simple question, as Kinsella has already stated his point in response to posts including 6′s and Ned’s)

  28. It seems that we agree that the requirements of obtaining patent rights (the height of the hurdle) is adequate, but that it is in the execution of examining applications to achieve those rights that falls short. Is that a correct statement of the genesis of the problem (regardless of that problem’s scale)?

    It seems we also agree that the objective facts indicate that the minor (based on enviable percentages) problem is a major concern of your feelings, and that the combination of that minor objective-fact-based problem with the conjecture and unprovable level of assertions of dubious rights outside of the court system (the same court system whose records are used to arrive at the far less than 2% objective number) makes you feel that the scope of the problem is not overblown. It seems that you want to arrive at your reasoning through an over-dependence on the conjecture and unprovable state, while I ground my view in the objective and reasoned state. C’est la vie.

    As I have observed your writings, you are of the camp that it is OK to kill the patient (the strength of patents) in order to fight the patient’s illness (the fact-based minor problem of assertion of bad patents). If you want to play doctor to your perceptions of the objectively known and the subjectively unknowable problem, you might want to understand why doctors take the Hippocratic Oath (just as you might want to stay away from unfounded assertions and understand the background of someone {Kinsella} who has made themselves to be a public figure before stating that a certain fact pattern encourages anyone to listen to that person’s rhetoric).

  29. Tin, just because no country has abolished IPR does not mean that Kinsella doesn’t have a point. What if he were asserting instead that our spinal column is not perfect for two-legged gait. What if you were challenging him to name a two-legged animal that has done away with its imperfect spinal column. Just because there is no such animal does not prove that the spinal column is perfect for an optimal 2-legged life.

    Your argument is not going to convince Kinsella, because he is not living in the real world of politics and “the art of the possible”.

  30. So long as countries have IP, I cannot argue that they should not?… you can never change the law, ever!

    That’s some fiction Stephan. The problem is that I never indicated that you did not have a right to say anything, or that you cannot say anything. Additionally, your taint of “ultimate conservative” when you have no clue as to my political beliefs belies your playing of an emotion-laden card instead of using reason. Your “they are the gestapo” mantra wears a little thin.

    If I strip away the non sequiturs, if I strip away the strawmen, and if I strip away the emotion-laden but otherwise naked philosophical polemics, the answer to my question of “why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property? is

    None.

    Not a single solitary modern advanced society in the entire world values YOUR ideological framework enough to pursue what (to you so clearly) is “right and just”? How can the world be so blind?

    And the shocking perpetrators (conspirators who have been successful throughout modern history of usurping control from EVERY government to prevent the “just” annihilation of all state-sponsored intellectual property protection) is a cabal of vested (special) interest groups h3ll-bent on preventing competition (completely ignoring the fact that patents provide the power of competition to the little guy to compete with the established big guy and render moot non-innovative, anti-competitive factors of established power and size).

    Focus and focus clearly on the information that my question and your answers provides.

    How are the shiny hat sales going Stephan?

    Further, since you insist on creating strawmen and making deductions from arguments not even put on the table, it is evident that you want to argue both sides here. You do this because you want to control what conclusions are reached. But you cannot even argue your own side effectively, much less both sides. You remind me of the pro-pedophile groups who have their own “studies” of how beneficial under-age relations are and demand studies to show the dangers of their belief system, while ignoring the reality of the world around them that do not accept those beliefs. It is not a matter of my saying that you can “never change the law,” it is a matter that no one cares to change the law based on your belief system.

  31. No I was not aware that Kinsella is a patent attorney. Thanks for that.

    But maybe he doesn’t practise?

  32. It seems we agree that there is a problem and that you don’t know the scale of it. Nevertheless, you are sure that “the problem is being overblown”. I’m not.

  33. Oh, and I forgot. Not only are we looking for technical disclosures about things that are not easily reverse engineered, we are also looking for straight up technical information. Patents give them incentive to put pen to paper and write theys sht down and share it with others. The fact that our current system discourages people reading patents (treble damages) is regretable and r tarded, but I cannot change it.

  34. ” I oppose the patent system on principled grounds.”

    I know you do bro. I don’t.

    “The system should be reformed. But not abolished!”

    Tell you what bro, if you come up with a better way to drag technical secrits which are not easily, or not at all, reverse engineerable, out of the technical people that would like to keep it a secrit then I will support ya.

    “Look, even if you require reduction to practice, that solves NOTHING”

    Well, it solves something, just not everything.

    “would do nothing whatsoever to solve the A-B problem I explained above. ”

    I agree, but the compulsory licensing enabled by Ebay should take care of pretty much all cases where they can’t license.

    “A invents it and reduces it to practice FIRST”

    One does wonder why A didn’t stroll down to his patent office or to his interwebs and publish.

    “If A had only reduced it to practice but was not making it yet, then he can be enjoined by B.”

    Perhaps he will put a little bounce in his step to the patent office next time eh?

    “This is blatantly and obviously unjust.”

    I agree, but it is the gun we hold to inventor’s heads to disclose fast.

    “”Oh, I’m not in favor of THAT”

    No, I am in favor of THAT. At least in so far as we have the current system in place. If we want to start from scratch then perhaps we change the lawl somewhat.

    Look brother, I am fully aware of how bad the patent system is. But we have nothing better to drag technical goodies out of techies. The fact that our country is enamored with allowing the system to be abused more than is necessary is unfortunate :(

  35. How could any patent attorney have any other opinion than that?

    MaxDrei, are you aware that Stephan Kinsilla IS a patent attorney?

    If I were a client of his, I would have to ask him how my applications were being zealously pursued given that Stephan firmly believes that all patents are evil.

  36. No need to be sorry, and no need to be skeptical.

    What I wrote is objectively true. The rate of active patents in court is far below 2%. That is not a debatable point.

    You may feel that even at those low percentages, the problem is serious, and your feelings would be perfectly valid. You may also feel that “95%” of assertions settle before trial (which has a two-fold issue: the numbers in court and pre-settlement are captured in the far less than 2% and the numbers that settle before any court action are unknowable).

    Bottom line is that there will always be patent assertion and there always will be patents granted that should not have been granted. But the objective numbers and levels of this is at a low rate (other areas of law would love to have this low rate), and that the problem is being overblown.

  37. Stephen, I may have misunderstood your position.

    I still think the problem is over claiming, and allowing patents on trivial and obvious advances.

    But I would hope that you would support the concept that theivery is not fair competition.  If one steals an invention from another and then uses it to compete, I would hope that you would support some form of protection for the originator.

     

  38. I’m sceptical of what you write. Sorry.

    My experience at the EPO is that there are hundreds of interfering patent applications per year. So when you tell me there are only tiny numbers of declared interferences that don’t impress me much. I’m also not much impressed by a low ratio of patents to trial relative to patents issued. In England 95% of asserted patents setle before they get to trial.

    How good a search would have been needed, to found the proper objection to the Magsil claim? The Magsil claim isn’t the only mischief that the USPTO has issued. The flow has been ridiculous. And all presumed valid. And all good blackmailing intimidatory material. The idea that a jury is fit to judge what evidence of obviousness in an esoteric technical field reaches the level of “clear and convincing” is absurd. I gather that litigators try out their obviousness theories on their own young children, as stand-ins for the members of the jury. When is a jury ever “clear” on technology which cannot possibly understand?

  39. That’s it. How could any patent attorney have any other opinion than that? But that’s the easy bit. The hard bit (as with any grand scheme) is the implementation.

  40. I would further observe that the fact that the Patent Office issues bad patents that are corrected in a court system should not encourage people to listen to Mr. Kinsella.

    People should understand the more reasonable idea that the patent office does not (and cannot) perform exhaustive or perfecct searches and that there will always be patents overturned in court.

    One needs to recognize as well that the number of patents in courts is miniscule. At far under 2% of active patents (and far under 1% total overturned through the courts), reasonable people should recognize when a problem is being overblown.

  41. Thanks Max,

    So to paraphrase, you are against “excessive” patenting when the patents are granted that do not actually meet the law and earn their Quid Pro Quo, and you are not against patents (however numerous) that are rightfully earned and granted according to law.

  42. Excessive patenting is issuing claims like in Magsil, that go beyond the contribution to the art. Take ubiquitous performance measure X. Every customer asks what value of X your product offers. Every year, manufacturers get a little better. Last year it was 10% and this year it is up to 11%. You invent a way to get to 12.1% X. You claim “Every value >12%” and the USPTO issues your claim. That’s not just excessive. That’s ridiculous, hinders progress in that field, brings the patent system into disrepute, and encourages people to listen to Mr Kinsella.

  43. Mr. Heller, you say you share my concerns. But then you just point to “abuses” of the system. My concerns have almost nothing to do with “abuses.” My concern is that patent law is inherently anti-competitive and violates property rights. This has nothing to do with corrupt patent attorneys or incompetent PTO examiners or patent trolls. Even with perfectly valid patents used by practicting entites, just as the patent law intends, this is bad. It lets company A use the force of law to prevent B from competing with him. this is anti-property, anti-market. The patent system is a relic of mercantilism and protectionism. It ought to be completely abolished. We would all be richer, freer, and have more innovation if this were to happen. The patent system is completely evil.

  44. Max,

    I do not think KTHFS credits Stephan with a “world view.” Instead, he states that Stephan has a view that is not aligned with the real world. There is a huge difference. I agree with KTHFS.

    I like your allusion to not being paid to post, but that is an illusion to being a shill (TSSC has posted that money is not the only driver for shilling).

    I am curious though, what do you mean by “excessive patenting” (below)? Do you mean instead unearned patents, or not properly granted patents? Or do you mean that the patent requirements are not strict enough? Or so you really mean that some people who have properly and justly earned patent rights nevertheless should not have those rights? I have a hard time accepting the notion that someone who has passed the requirements for a patent is less deserving of the rights earned just because the level of activity in that particular art field may be high. Especially for US law, which provides a positive right with an open invitation language (35 USC 101: Whoever invents or discovers any new and useful… or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title).

    Lastly, I do not think that holding a proper view of patenting encumbers either a Ms Rand or Tea Party view of the subject. Do think so improperly validates the charge leveled by the fringe element.

    Clearly, Mr. Kinsella is on the fringe of patent philosophy, if not beyond. I don’t begrudge him speaking his views, but they are eccentric and out of place with how society views intellectual property.

  45. This right, if it exists

    Are you talking about the inchoate right that patent law turns into a full legal right?

  46. Kinsella:
    “Patents don’t give anything to the public, except perhaps an invention disclosure that the inventor is forced to make public in exchange for receiving the monopoly grant from the state. IF you mean the invention: well that is what the inventor does, but not the patent. But patents prohibit competitors from using similar inventions that they independently come up with. And they also prevent people from competing with the patentee, by emulating what they are doing. “

    Mr. Kinsala, let me say that I share your concerns. The Supreme Court has long tried to confine the scope of protection of inventions to what is disclosed and equivalents, which they do not believe extend to the independent inventions of others. However the patent bar as long tried to claim inventions not so much in terms of the particulars of an embodiment, but in terms of abstractness such that the principle of the invention is claimed without regard to the particular embodiments. Such claiming was condemned by the Supreme Court in O’Reily v. Morse, where the Supreme Court emphasized that the patent should extend only to what is disclosed and equivalents. They should not extend to the independent inventions of others.

    Even this year we had a Federal Circuit case that had debated whether the doctrine of equivalents could extend to an independent invention of another. The alleged infringement was patented by third-party in the particular case, meaning that it had the presumption that the patented variation was nonobvious. I believe the Federal Circuit held that the nonobvious status of the alleged infringement should be ignored in determining equivalents.

    But the problem with the patent system are patent attorneys and courts who aid and abet indefinite functional claiming and thereby allow claims to literally cover the independent inventions of others. Patent attorneys do not confine themselves with claiming particular features of the disclosed embodiments. They functionally claim abstract results, just as in O’Reilly v. Morse. When we allow claims like this to be routinely issued, and and when they are not routinely struck down by courts on well understood principles such as indefiniteness, then the patent system becomes, as you say, what you say this. It is an abomination, and I will agree with you that it is broken and needs to be fixed.

    This is not to say that the patent system is not working in some areas, for example chemicals, pharmaceuticals, or the like where ancient rules require particular claiming. But outside of these particular areas, the patent bar and the Federal Circuit have run amok and have virtually destroyed any credibility the patent system may have had in the public eye.

  47. Mr Kinsella, I see you are hanging on in there, and I sympathise to the extent that excessive patenting hinders rather then promotes the progress of useful arts.

    But now let’s take what for me is the best argument in favour of a patent system, the blockbuster drug that took 13 years and a half a billion dollars to bring to market, that would never have got there without a patent to protect it.

    The enabling disclosure issues 18 months after conception of the drug, so all of India has more than 10 years to gear up its copying industry. Only thing is, without the patent system there would have been no conception, no publication and no treatment for the disease that, absent the drug, is going to wipe everybody out.

    Mr Kinsella, I like the thought of life-saving drugs. Where are we all seeing it wrong?

  48. Kinsella Tinfoil Hats For Sale:
    “You do realize that correlation is not causation, right? ”

    ‘You do realize that that pet phrase is a non-sequitur, right? I did not say anything about cause or correlation.”

    Ah, I thought you were making (by implication) the tired old argument that we know the patent system “works” since the prosperous west has had these systems in place from the get-go. I’m glad you now implicitly reject this argument.

    ” Please put your cop-out parroted answer away. I asked you a direct and easy question. Here, let me repeat it for you:

    why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?”

    For the same reason that they impose tariffs on trade, impose minimum wage and pro-union legislation, provide corporate subsidies to agriculture, and so on–a combination of corruption, economic illiteracy, and special interest group lobbying.

    “If these studies of yours are so good, the ones that show “or eliminated,” then why are they unilatererally ignored?”

    Same reason Mickey Mouse keeps getting a lifeline–copyright terms extended by disney lobbying even though no one in their right mind can say that the copyrgiht term needed to be extended from life + 50 to life + 70, etc. The movie and music industry, pharmaceutical, etc., obviously all have a vested interest in maintaining the IP systems that protect them from competition. That is why they lobby the US gov’t to bully other countries into adopting US-style IP laws too.

    See, e..g.: China and Intellectual Property, Intellectual Property Imperialism, Free-trade pacts export U.S. copyright controls, Wikileaks cables reveal that the US wrote Spain’s proposed copyright laws. As for Disney-MickeyMouse-copyright lobbying: Copyright Length And The Life Of Mickey Mouse link to techdirt.com

    “Let’s see you answer the question; give me ONE advanced modern day country that has eliminated intellectual property rights. Just ONE.” None have, obviously. I am arguing that they should.

    “Until you can do that, all you are doing is attempting (and failing) to demagogue.”

    So long as countries have IP, I cannot argue that they should not? Wow, that’s the ultimate conservative position: you can never change the law, ever!

  49. 6: “Which is why I would also require reduction to actual practice.”

    This is so frustrating. I oppose the patent system on principled grounds. Someone replies with a list of ad hoc pragmatic or utilitarian concerns, and I explain why even these are wrong, using examples. I give examples of how the IP system results in outrageous, obvious wrongs. My interlocutur then backs down, “Oh, I’m not in favor of THAT. The system should be reformed. But not abolished!” AAAuughgh.

    Look, even if you require reduction to practice, that solves NOTHING. It would not even solve the troll problem–unless you also add a “working” requirement. And even if you have the reduction to practice requirement, it would do nothing whatsoever to solve the A-B problem I explained above. A and B aer both working on an invention; A invents it and reduces it to practice FIRST; then a month later B does this also, independently. B then files a patent. He is first to the PTO. He gets a patent and now can STOP A from making and selling his own products–unless A was already in production and thus grandfathered in under the prior use right exception. If A had only reduced it to practice but was not making it yet, then he can be enjoined by B.

    This is blatantly and obviously unjust.

    I know, I know, you will now say “Oh, I’m not in favor of THAT. We need to modify the law to stop that….”

    Basically, any obvious abuse I can point to, people like you start crawfishing in your defense of patents, but you will never give it up entirely, and you will not have any problem with more subtle forms of abuse, apparently having never read Bastiat or Hazlitt (the seen and the unseen).

  50. Tin, you credit Stephan with a “world view”. I have to disagree with you there. I don’t see one. I see that you and Stephan agree that I talk “like a total amateur”. That’s OK. I had no idea that amateurs and professionals have different ways of talking. But in the context of contributions to a blog, I am happy to be an amateur rather than a paid professional.

    Just curious, but what exactly did Ms Rand have to say about patents (Wikipedia isn’t much help)and what is official Tea Party policy on patent rights.

  51. “So EVERYONE in the world is wrong”

    I could have sworn he was talking about every government that has implemented IP lawls, not EVERYONE.

  52. “Is it some giant large scale conspiracy?”

    Nah, governments know that they are beholden to the companies that are showering their nation in wealth (and taxes lol). So they are willing to help them out in return for a meager disclosure. Not to mention that it is simply a legacy system, like so many others we have that are hard to get rid of. Hardly a conspiracy.

  53. “In patent law this is sufficient for the patent application”

    Which is why I would also require reduction to actual practice.

  54. “The good patent gives the public something it never had before whereas the bad patent deprives it of something it already had.”

    That something is supposedly the disclosure. Which, obviously, in today’s world, most of which are worth less than my po op, even if they turn out to be the subject of a valuable patent. When disclosure was the rarest thing of evar, or if it is a disclosure of something beyond the skill of ordinary men in the field (not beyond what is obvious to them) then perhaps it has/had some value. And things which are merely non-obvious have meh, about as much value as my po op, especially when the disclosure is only published 18 mo after filing. If, for instance, patents published the day after filing then of course patents would be immensely valuable, and everyone would sing their praises. But companies apparently would ha te this and not want to file. Ok, I say, let them do that, and take the chance of competitor man coming along and filing. Imo, the only way to make patents truly relevant and beneficial to today’s society is to demand quicker publication, practically the next day after filing. But, since the old people in power can’t understand this just yet, I’ll take what disclosures I can in my field.

    What Mr. Kinsella takes as granted is that you have a property right in your physical property to do with it as you please, including transform it into whatever new arrangement you please without being beholden to anyone. This right, if it exists, is obviously abrogated by patent lawl.

  55. Stephan: “blah blah blah”

    Translation: “so what? They are wrong.”

    So EVERYONE in the world is wrong and Stephan is right.

    So there.

    And Stephan tells MaxDrei that MaxDrei talks like a total amateur…(well, ok, he does, but Stephan, you are right there with him).

    Bottom line Stephan, it is your anti-real world views that are “all irrelevant.”

  56. Thanks for your answers. And thanks for printing out my words all over again. I’m happy now for readers to form their own opinions on these issues.

    Ned, are you there?

  57. Thanks for your answers. And thanks for printing out my words all over again. I’m happy now for readers to forrm their own opinions on these issues.

  58. MaxDrei:

    “First I will declare an interest. Half the time I work for patent owners. The other half I work with a client who is trying to get authority to revoke an issued patent. So my interest is to see valid patents uphald and invalid ones wiped out.”

    This does not mean patents are justified.

    “The valid ones give to the public something it didn’t have before, namely early publication of an enabling disclosure of a new and non-obvious contribution to a useful field of technology.”

    First: wrong. Valid patents do not “give” this to “the public.” Second: so what? If you come up with a way to improve an existing technological produt, and you want to profit from this improvment, you have to reveal to the world that you have this new idea, by selling it. When you do you oepn yourself up to competition. so what?

    “Of course there is a price to be paid by the public for the early disclosure. Call it emotively “negative servitude” if you like but what you call it doesn’t change what it is. No end of countries have considered whether it is a price worth paying, and have concluded that it is.”

    And they are wrong. You cannot name a single study that proves what you say. Go ahead: I dare you.

  59. MaxDrei:

    “Of course there is a price to be paid by the public for the early disclosure. Call it emotively “negative servitude” if you like but what you call it doesn’t change what it is.”

    It is not “emotive.” this is what is is. Anyone on the receiving end of a thuggish, fascist patent suit can attest to this.

    ” No end of countries have considered whether it is a price worth paying, and have concluded that it is.”

    so what? They are wrong.

    “At least in Europe, the “right of continued use” extends to those who have made “effective and serious preparations” to work the patented technology before the patent owner filed. So, if you have invested before the other fellow filed, your investment is not lost. And you can’t so invest without first having an enabled invention, right? If you had that but nevertheless failed to file, and you failed to invest either, tough luck. But what’s wrong with that. Society benefits from early investment in innovation, and early disclosures of new and non-obvious contributions to useful technical fields, but not from mere conceptions. Investment and disclosure are what promotes the progress. Mere conceptions do not.”

    You talk like a total amateur. This is all irrelevant.

  60. First I will declare an interest. Half the time I work for patent owners. The other half I work with a client who is trying to get authority to revoke an issued patent. So my interest is to see valid patents uphald and invalid ones wiped out.

    The valid ones give to the public something it didn’t have before, namely early publication of an enabling disclosure of a new and non-obvious contribution to a useful field of technology.

    Of course there is a price to be paid by the public for the early disclosure. Call it emotively “negative servitude” if you like but what you call it doesn’t change what it is. No end of countries have considered whether it is a price worth paying, and have concluded that it is.

    At least in Europe, the “right of continued use” extends to those who have made “effective and serious preparations” to work the patented technology before the patent owner filed. So, if you have invested before the other fellow filed, your investment is not lost. And you can’t so invest without first having an enabled invention, right? If you had that but nevertheless failed to file, and you failed to invest either, tough luck. But what’s wrong with that. Society benefits from early investment in innovation, and early disclosures of new and non-obvious contributions to useful technical fields, but not from mere conceptions. Investment and disclosure are what promotes the progress. Mere conceptions do not.

  61. Let me add, that what I like is that the idea he broaches that the first to actually build one should have priority over the one who simply files a paper design.

  62. Stephan, I find some merit in this:

    “Consider: A and B are independently working on a new transistor design. Of course, they are buildilng on the innovations of others in the past, and the reason this new design is feasible now is becuse its “time has come” because the prerequisite technology is now available to people like a and B. Well A finalizes his idea first, and B a month later. Neither one of them has a working prototype or any produced goods. They just have designs on paper. In patent law this is sufficient for the patent application. B files first. A files a week later. Under the new rules, B gets the patent, A’s is denied, and when A tries to make and sell the new transistor design that he came up with, B can use goverment goons to stop him. Literally. To view this fascist process a part of the free market is obscene. ”

  63. You do realize that correlation is not causation, right?

    You do realize that that pet phrase is a non-sequitur, right? I did not say anything about cause or correlation. Please put your cop-out parroted answer away. I asked you a direct and easy question. Here, let me repeat it for you:

    why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?

    If these studies of yours are so good, the ones that show “or eliminated,” then why are they unilatererally ignored?

    Let’s see you answer the question; give me ONE advanced modern day country that has eliminated intellectual property rights. Just ONE.

    Until you can do that, all you are doing is attempting (and failing) to demagogue.

    you again do not know what you are talking about.

    And you still don’t know what you are talking about. You ideological mantra is old, boring and trite. You have to ignore real human nature in order to arrive at the basis of your beliefs. thus, the tinfoil hat reference is fitting.

    I notice you have no justification for state-granted IP monopoly privileges. Your “argument” amounts to

    Nice fallacy. Just because the topic was not addressed does not mean that I do not have a justification. Let’s see if you can take baby steps first Stephan. Give me the ONE successful modern day advanced society, and then we can discuss the cavalcade of your pipedream beliefs.

  64. "If patents are so "e_vil," why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?"

    You do realize that correlation is not causation, right? There is simply no empirical proof that patents or IP have increased wealth, innovation, or social welfare; to the contrary, the studies are ambiguous or conclude that IP should be scaled back or eliminated. see link to stephankinsella.com

    As for anarchy and anti-law–you again do not know what you are talking about. Anarchists are anti-state but not anti-law. The state is not the source of law any more than it is the source of roads or, in state-religion based countries, the source of religion. Or of morality. 

    I notice you have no justification for state-granted IP monopoly privileges. Your "argument" amounts to (a) but the west has patent law and is richer (ignoring that it also has/had war, slavery, taxation, central banking, corporatism, inflation, regulation, tariffs, mercantilism, protectionism, racism, etc. over this time too–are they the cause of western prosperity too?); and (b) I don't like anarchists because I think they don't believe in law. Good …. "argument".  

  65. Stephan,

    If patents are so “e_vil,” why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?

    Is it some giant large scale conspiracy?

    What you preach is anarchy, anti-law, as ALL law to some degree takes away from peoples’ ability to do what ever they want to do. The “free market” is not synonymous with an unregulated market. It never has been.

  66. MaxDrei:

    “I’m having trouble following his logic, that patents take away what the public already had. He cites the RIM patents, but they were bad, were they not. As some judge once said, a long long time ago: The good patent gives the public something it never had before whereas the bad patent deprives it of something it already had.”

    Patents don’t give anything to the public, except perhaps an invention disclosure that the inventor is forced to make public in exchange for receiving the monopoly grant from the state. IF you mean the invention: well that is what the inventor does, but not the patent. But patents prohibit competitors from using similar inventions that they independently come up with. And they also prevent people from competing with the patentee, by emulating what they are doing. But of course this is a normal part of the unhampered free market: someone starts making a profit by engaging in some business, and the price system sends signals to others that this is an area they should look into–and so success draws competitors, who emulate and compete with you by doing what you are doing, or some variatn of it, maybe improving on it, etc., and thus the profit in the industry is gradually lowered, until more innovations and improvements are provided to the consumer. this is a normal part of the free market process. Patents short circuit this by prohibiting competition for about 17 years.

    “First to File patent law makes sure that nobody is deprived of what they already had.”

    This is untrue. What you are talking about is the prior-user rights, which were actually broadened in the Obama patent law a year or so ago–the first nontrivial improvement in patent law ever. But it’s not enough. YOu can still use a patent to stop others from doing what you are doing, and even people who independently invented it–even someoe who invented it FIRST.

    Consider: A and B are independently working on a new transistor design. Of course, they are buildilng on the innovations of others in the past, and the reason this new design is feasible now is becuse its “time has come” because the prerequisite technology is now available to people like a and B. Well A finalizes his idea first, and B a month later. Neither one of them has a working prototype or any produced goods. They just have designs on paper. In patent law this is sufficient for the patent application. B files first. A files a week later. Under the new rules, B gets the patent, A’s is denied, and when A tries to make and sell the new transistor design that he came up with, B can use goverment goons to stop him. Literally. To view this fascist process a part of the free market is obscene.

    “Enshrined in it is a Right of Continued Use.”

    that has nothing to do with first inventor to file rule. It is separate. And it would not protect A in the case presented above.

    ” Revocation of issued patents happens when the evidence of invalidity rises to a preponderance, or the “balance of probability” in civil law jurisdictions.”

    IT is costly to do so, so the patents can be used as a hammer against individuals or smaller companies. Patents have a “presumption of validity,” after all. Further, as i said above, the problem is not “invalid” patents that “should not have been” granted. the problem is good patents that are perfectly “valid”–the ones that cannot be challenged under nonobviousness or novelty grounds. Even if the patent system only generated 5% of the current patents it does, even if all of them covered existing product lines of the patentee (getting rid of the troll issue), even if all of htem are 100% “valid” (getting rid of the low-quality patent problem), it would still be a horrible, anticompetitive, anti-property, anti-free market system.

    “Of course a system that upholds bad patents whenever the party adversely affected cannot put together evidence of invalidity that rises to the higher asymmetric standard of “clear and convincing” (a problem found only in the USA) does help Kinsella’s point, that patents can (and do)impose negative servitudes on the public. Only the American public, mind you. That’s because only the uniquely “strong” US patent law can do this.”

    I think you are confused. This is not my point at all. I am explaining that the very nature of patent and copyright is a negative servitude. That is the right way to classify them. that is what they ARE. And seeing them in this light shows why they are illegitimate: because a servitude is a property rights that the burdened estate owner has to grant voluntarily to be valid. They are not granted voluntarily. the State just takes it from the property owner. YEs, he is deprived of his property rights: he no longer has the right to use his property in such-and-such ways pro patent claims.

  67. Do you know that Kinsella is about as anti-patent as they come? Do you not recognize then, that points “in his favor” should be treated logically as polar opposites? Do you then recognize that the strength you attempt to denigrate is a good thing?

  68. Kinsella writes:

    “The question is whether it’s just for the state to grant negative servitudes to innovators and artists”

    I’m having trouble following his logic, that patents take away what the public already had. He cites the RIM patents, but they were bad, were they not. As some judge once said, a long long time ago: The good patent gives the public something it never had before whereas the bad patent deprives it of something it already had.

    First to File patent law makes sure that nobody is deprived of what they already had. Enshrined in it is a Right of Continued Use. Revocation of issued patents happens when the evidence of invalidity rises to a preponderance, or the “balance of probability” in civil law jurisdictions.

    Of course a system that upholds bad patents whenever the party adversely affected cannot put together evidence of invalidity that rises to the higher asymmetric standard of “clear and convincing” (a problem found only in the USA) does help Kinsella’s point, that patents can (and do)impose negative servitudes on the public. Only the American public, mind you. That’s because only the uniquely “strong” US patent law can do this.

  69. I replied here:
    link to c4sif.org

    Mossoff’s argument is a huge bundle of confusion, of course. Mossoff is trying to justify IP, since Ayn Rand failed at it, but he is as doomed as she was in this task. Rand should have sensed she was wrong when she recognize that no one creates any new ownable things; they just rearrange already-owned objects into more valuable configurations. Thus, production, or transforming already-existing, already-owned scarce material, into more valuable arrangements, does in fact create wealth—since the owner or potential customers might value (note: a verb) the rearranged item more than they would in its previous shape—but this does not mean that the act of creation or production or transformation gives rise to any new property rights. It just transforms already-owned things. This is Rand’s big mistake.  (Rand on IP, Owning “Values”, and “Rearrangement Rights”Locke, Smith, Marx and the Labor Theory of Value.) In addition to her incoherent attacks on anarchy (forget that Galt’s Gulch was anarchist). She should have stuck with her rearrangement view. Then she would have realized state-granted monopoly patent privileges are totally incompatible with this view.

    Mossoff is wrong, because the fundamental problem with patents is not that they are not similar to real property rights. It is that they are state-granted anti-competitive monopoly privileges that violate pre-existing property rights.

    Now, it is true that it is quite ridiculous to view patents as similar to real property rights (by “real” I don’t mean “real property” or land; I mean legitimate, pertaining to material, scarce objects—you know, the whole purpose of property rights?). As noted by law professsor Robin Feldman in a recent book, Rethinking Patent Law, it makes no sense to view patents are defining “property rights” (see Feldman: Patents don’t define property rights; they are an “opportunity to bargain.” Don Corleone nods).

    But even if patents are “similar” to property rights in land: so what? After all, there used to be property rights in other humans, and today there are innumerable property rights and entitlements like the right to not be discriminated against in employment or the right to receive welfare payments, which are unlibertarian (see Classifying Patent and Copyright Law as “Property”: So What?). Showing that you “can” have a working patent system that is crammed into the existing property-based legal system proves very little about the legitimacy of the legislation foisted on the populace by a bunch of politicians.

    The problem with the patent system is not that it is absurd to analogize it or patent claims to real property metes and bounds (though it is; trust me). The problem is not that you can’t force this system onto a semi-capitalist economy; apparently you can. That, and taxes, regulations, and the like. The problem is not low-quality patents, nor patent trolls, nor software patents, nor unclear nonobviousness standards, nor an incompetent PTO, nor too-long patent terms, nor inadequate prior art databases—though these are all problems. The problem is good patents, high quality patents, issued to cover existing products of existing companies, who use them to bash their competitors over the head.

    The problem is not that there are inadequate analogies between artificial state-legislated monopoly privilege schemes and legitimate property; for even if there are, this does not justified these laws. The problem is that IP rights are state-granted negative servitudes, that is, a grant by the state giving A the right to restrict how B may use his already-owned property (called a negative or appurtenant easement in the common law). B has to get A’s permission to use B’s own property as B sees fit, even though B never agreed contractually with A to limit his rights (a contractual, voluntary servitude), and even though B never committed any kind of tort or trespass invading the borders of A’s property rights. B has not agreed to grant a negative servitude to A, nor has B violated A’s property rights. There is no excuse for forcing B to grant A a negative servitude; yet patent and copyright do this. It is very similar to rent control, i.e. forcing B to rent an apartment he owns to A at some below-market price. It is similar to a state decree forcing a factory owner to let the workers have a say (union laws). It is similar to taxes (taking B’s property to give it to A). A negative servitude or easement is a property right. It is legitimate only if the owner grants it to someone else by contract. In the case of patent and copyright, the state grants a negative servitude to patent and copyright holders, to control the property of third parties. (See Intellectual Property Rights as Negative Servitudes.)

    This is the problem with IP law, and it is this that IP apologists like Mossoff do not justify, by saying that patent infringement is similar to real estate trespass. The question is not whether the enforcement of real estate law is similar to patent law. The question is whether it’s just for the state to grant negative servitudes to innovators and artists. And: it’s not. That is a property right that the state has no right to wrest away from someone. It should only be granted by contract, voluntarily. Not taken by legislative decree.

  70. This is not a case of chicken or egg.

    What came first was the constitution, which delegated the authority to the respective branches. For patents, that delegation was to Congress.

    I know this is an area of law that you struggle with. I will not debate this with you nor explain this to you. You need to come to grips with reality on your own.

  71. Yes Ned, Magsil. Thanks for that tip. I read that one, and was surprised by how uncompromising it was, on a claim that depends for patentability on a mere number, the lower end of a range, a range that the PHOSITA has always been tasked to push up.

    I often get asked by US clients to push such claims at the EPO. These clients honestly believe (from their domestic experience within the USA) that finding one way to solve a problem entitles them to exclude ALL ways to solve that problem (even when attacking that particular problem is no more or less than what their industry spends its time doing, day in and day out).

    Not surprising the clients want such claims though. Why not push them hard? Once they issue, they exclude all the competitors from all of the market, until the patent expires.

    All credit to the CAFC panel and all credit to a competitor who had the nerve to fight back. See, if they feel like it, the judges can motivate the PTO, and themselves deter those who would take vague over-broad claims to issue.

  72. Mr. proper, what came first, the chicken or the egg?

    You are aware of course that a lot of the statutes were implementations of court cases, including the 1952 Patent Act?

  73. “and that is why the required the claims be clear and definite in the first instance.”

    Misnomer: the requirement for clear and definite was by Congress.

    “These claims use functional language at the point of novelty.”

    Misnomer: there is no such thing as point of novelty, as the claim as a whole is what the point of novelty is. The Magsil case illustrates this as does all ruling case law.

  74. Max, I think the problem we are wrestling with here is twofold: indefiniteness and breadth.  When one uses vague terminology in claiming an invention, generally we have a problem with determining what the boundaries of the claim are.  The Federal Circuit seems to have the attitude that if one can figure it out in claim construction, that is sufficient.  But the Supreme Court once upon a time was more concerned with notice, and that is why the required the claims be clear and definite in the first instance.  The Federal Circuit does not seem to understand this, at least not all of the Federal Circuit.

    The other issue is breadth.  These claims use functional language at the point of novelty.  In doing so, they essentially claim a result as in O'Reilly v. Morse.  For 150 years, until the Patent Act of '52, the Supreme Court was at war with the patent bar on this issue.  As we know, in 1952, the Empire struck back, and passed what we now know the be §112, p.  6, which seemingly authorized functional claiming at the point of novelty (although there's some question about that) with the proviso that the claims be construed to cover the corresponding structure and equivalents.  But as we learned in the Magsil case that came out just yesterday, that if one claims the point of novelty functionally as they did in that case, one has to enable the full scope of the claimed subject matter less the claim covered the future inventions of others.

    Hopefully, Magsil points the way against functional claiming at the point of novelty because most of those claims will now be invalid, in my humble opinion.

  75. More thoughts overnight Ned.

    6. Obsessive attention in the EPO, prior to grant, to excise from the specification anything in the description of “the invention” that in any way whatsoever is not “in conformity” with the “invention” defined by the claims. (Authority derives from Art 84 EPC, that the claims be “clear” and that the spec shall “support” those claims.)

    7. No Doctrine of File Wrapper Estoppal. Construe the claim on the spec alone (as understood by the PHOSITA). Can’t draw on the wrapper to shade the meaning.

    8. No deference, after issue, to the opinions of the EPO workers prior to issue.

    9. Validity hangs on the balance of probability. No Presumption that the duly issued claims must be valid. If they are bad, they are invalid.

    10. A fierce resistance, throughout Europe, to any post-filing amendment that results in an amended text from which the PHOSITA can derive some technical teaching or other that was not “directly and unambiguously derivable” from the papers filed on the original date of application. You can’t take out more than what you put in on your filing date.

    11. No scope widening, once the patent issues.

    Readers will grasp that my prescription for legal certainty, as to what is going to be found by the courts to trespass, and what not, does not come cost-free.

    Ned, I have read again the Mossoff Essay. I see it was Judge Anthony Kennedy, exclusively on business method patents, in eBay, who complained about “potential vagueness and suspect validity”. I suppose it was from this exasperated utterance that Prof Mossoff gets his “infected with vagueness and indeterminacy”. I wonder whether Kennedy is right, that the infection started with business method patents.

  76. Fish, I think the problem with abstract claims is, as Court said in Morse, that they need no embodiments at all.

    In another sense, if you claim all ways of achieving a describe result, sure the claim is not enabled.

    What about this case? What if the claim had said I claim a tunneling resistor of the type described by the structure claimed (generically old) where the resistance exceeds the prior art 2.8% and is less than 11.8? Clearly that has one embodiment that falls within the claim limits. But has this one embodiment even enabled all ways of achieving the claimed narrower range?

    Clearly not. But that would be harder to prove in court, where C&C evidence is needed. But in the PTO? I think it should be presumed that one embodiment does not support the broad claim — after all, just one species does not necessarily support a genus claim.

  77. suckie your post reinforces my post on enablement.

    Of course it does, suckie. Of course it does.

    [pats troll on head]

    [dips hand in mild detergent]

  78. Do you have a point MM? I bring up enablement and your post reinforces my post on enablement. Exactly what should I be “having fun” with?

  79. suckie Was it functional claiming per se that was the difficulty, or (more likely) simply a lack of enablement?

    Ah, the false dichotomy from sucktical. Classic!

    The claim was found non-enabled because the recited result (“causes a change in the resistance by at least 10% at room temperature”) included changes (e.g., 100% change) that were not taught by the specification and were not achieved by skilled artisans until years later.

    Have fun, suckie.

  80. Was it functional claiming per se that was the difficulty, or (more likely) simply a lack of enablement?

  81. LOL,

    MaxDrei shoots his mouth off on {insert random topic} to trumpet how wonderful the EP system is…

    Well, I am simply shocked, I tell you.

  82. Why are claims less vague in Europe? Ned, I’ll try to answer your question.

    1. The Protocol imposes on infringement judges a mandatory requirement, when they do claim construction, to balance two factors that pull them in opposite directions. The factors are a) reasonable legal certainty (for those reading the claim to find out whether or not they infringe) and b) a scope of protection for the inventor which is “fair” to that inventor. What’s “fair”? Well, the scope of protection should be commensurate with the magnitude of the contribution to the technical field, as evidenced by the specification. So, when drafting that specification, before you file the patent application, better reveal that contribution, as clearly as you can.

    2. EPO Problem and Solution Approach to obviousness, de rigueur now for 30 years, which advantages those who, in their drafting, tie specific technical effects one-on-one to specific technical features recited in the simultaneously drafted claims (and gives no weight to technical effects not so picked out in the app as filed and prayed in aid of validity only belatedly).

    3. No Binding Precedent, freeing up infringement courts to do justice, each time they have a claim to construe.

    4. An overall feeling that if you, when drafting, hold back or dissemble, sooner or later you will live to regret it.

    5. A deliberate decision by those who drafted the EPC in 1973 to exclude a want of clarity as a ground of revocation, post-issue. The consequence: 30 years of ever-increasing public pressure on the EPO to let through to issue only claims that are unambiguously clear and fit for purpose. Boy are those EPO Examiners hot on this topic, these days.

    I am sure you will tell me, if I am deluding myself.

    And is the professor following still, I wonder?

  83. You know Malcolm, this case will tend to send the proverbial shot across the bow to many practitioners who use this kind of functional claiming while avoiding 112, p. 6. Without the saving grace of 112, p. 6, the claims need to be fully enabled for the full scope claimed.

    It is a wonder that the PTO does not routinely reject such functionally expressed claims under 112, p.1 as not enabled.

  84. Nice take-down of functionally-claimed balooney by Rader.

    1. A device forming a junction having a resis-tance comprising:

    a first electrode having a first magnetization di-rection,

    a second electrode having a second magnetization direction, and

    an electrical insulator between the first and sec-ond electrodes, wherein applying a small magnitude of electromagnetic energy to the junction reverses at least one of the magneti-zation directions and causes a change in the resistance by at least 10% at room tem-perature.

    MagSil’s difficulty in enabling the asserted claims is a problem of its own making. See Liebel-Flarsheim Co. v. Medrad, Inc., 481 F.3d 1371, 1380 (Fed. Cir. 2007) (“The irony of this situation is that Liebel successfully pressed to have its claims include a jacketless system, but, having won that battle, it then had to show that such a claim was fully enabled, a challenge it could not meet.”)

    This court holds that the asserted claims are invalid for lack of enablement because their broad scope is not reasonably supported by the scope of enablement in the specification. See Fisher, 427 F.2d at 839. MagSil did not fully enable its broad claim scope. Therefore, it cannot claim an exclusive right to exclude later tri-layer tunnel junctions that greatly exceed a 10% resistive change. Id.

    Greed. And child’s play, really, to predict the outcome. The defendant’s should be completely reimbursed for the time and money they spent defending themselves against this g—b-ge.

  85. One more point. Why would the claims in O’Reilly v. Morse declared to be “abstract?” Because they literally covered all ways of communicating at a distance using electromagnetism. What if the claims had instead said, “I claim all ways of communicating at a distance using electromagnetism including the disclosed means?”

    I think we know the answer to that question. But many claims today in US patents are essentially this.

  86. One sees the debate about indeterminancy today being carried out in claim construction debates at the Federal Cicuit. Can a claim cover more than what is disclosed? They literally do, as it is often said the disclosure is of embodiments but the claims define the scope of protection. The two are not necessarily the same.

    Back in the day, the Supreme Court had the doctrine, repeated in any number of cases, that a patent covered the disclosed embodiments, equiivalents thereof, and nothing more. We have long lost sight of that doctrine in US law.

  87. Max, rather that ask us why claims are vague in the US, can you tell us why claims are less vague in Europe?

    The complaint about vagueness in US claims is very old. The courts battled vague claims from their very beginning in 1836, and before that, similarly battled vague specifications that did not identify the invention with any particularity.

    Like a well known and very old profession of questionable virtue that cannot be outlawed despite best efforts, our efforts to battle vague claims never ends the because there are so many who use them to their advantage.

  88. I think this statement is wrong:

    “Conceptually, this standard improperly compares the boundaries of a complete legal right (patent) with a single doctrine (trespass) that constitutes only one part of another legal right (real estate).”

    If anything the comparison is of infringement to trespass and a patent claim to the legal property description of a deed (or land patent ss it’s called in some places).

  89. Not just you, me and the wall, A. Don’t forget Uncle Tom Cobleigh an’ all. Question is: is it also news to the Federal Circuit?

  90. Thanks for the comment, and there is real truth in what Mr. A says, but it’s not unique to patent law. In contract law, for instance, contracting parties often leave “gaps” in their contracts, or specific terms are left ambiguous in the hope that there won’t be a problem down the road, because if one of the parties pressed for precision, this would be a deal breaker. This is why there are “gap filler” rules in contract interpretation, which are similar in some respects to the substantive and procedural rules that the courts have developed over the past two centuries for construing terms in specifications and patent claims. It’s also why there are many, many contract lawsuits that arise from such ambiguous terms (such as the famous contracts case involving the meaning of “chicken” as used a contract between a wholesaler and a retailer).

    As I mention in my paper, the most important question to always ask in identifying a practice or making a statistical clim about anything in the law, or in life for that matter, is: As compared to what? If one assumes perfection as one’s baseline in identifying or evaluating a practice — zero errors, zero externalities, etc. — then one is committing the nirvana fallacy. It’s always about trade-offs between real-world institutions. So, the question here would be: Is there more improper uncertainty placed in patents by patent applicants than in other legal documents, like contracts, wills, or even statutes and regulations? The problem is that we just don’t have the answer to this all-important comparative question. And this is one of the issues that prompted me to write this essay.

    Again, thanks for the comment, and I hope you find the essay of some interest or value.

  91. Point taken. I see that, yes, that would be silly.

    It was just that I liked so much the expression “infected with vagueness and indeterminacy”. I wanted very much to know who to thank for it. I wasn’t sure, but now I know. Thank you Professor Mossoff.

    Do any of your many people yet know the source of the infection? Is there still time to stop it spreading world-wide?

  92. Thank you for reading my Conclusion. I appreciate that at least you read a portion of my paper, but if you’re looking for the many, many citations and quotes from people who express the view that patents are infected with vagueness and indeterminacy, I recommend reading at least the Introduction and at least Part II. Of course, the Conclusion is where I simply restate and summarize the conclusion of my argument. It would be a little silly for me to reproduce all of the evidence for my claims in my Conclusion — I would end up reproducing the entirety of my paper all over again.

  93. Between you and me and the wall, patent owners and prosecutors do not always WANT their patents to be entirely clear. Keep the competition uncertain, or even unaware.

  94. There is a world of difference between “room for improvement” and structural changes made with unknown consequences.

  95. I have had a look at Mossoff. In his Conclusion he writes:

    “The problem, according to many, is that patents today are infected with vagueness and indeterminacy.”

    I see no footnote that tells who these “many” people are. Who are they?

    But if many people are right in this, and if Mossoff himself wants to research the point further, he could do worse than to explore why it is that patent applications expertly written for use in the US courts are indeed so infected, while those expertly written for use in courts elsewhere are not.

    What I’m driving at is this. In the rest of the world, if in your drafting you don’t commit to what your invention is, things will likely go badly for you in the courts. In the USA though, if you do so commit, your litigator will not be pleased with you.

    The professor doen’t know why patents today are infected with “vagueness and indeterminacy”. Somebody here tell him, please.

  96. Haven’t read Mossoff on trespass yet but can’t resist the temptation to start the thread.

    Back in 1973, those writing the European Patent Convention (from scratch) had to reconcile two contradictory models, the UK and the German, of how a European patent shall define a “scope of protection”. They found a compromise (The Protocol on the Interpretation of Art 69 EPC) which, after 30 years of jurisprudence, is delivering ever-better results, regardless whether the judge seized with the case uses a Doctrine of Equivalents (Germany) or not (courts in England).

    Suppose the protected area is like the green surrounding the hole on a golf course. German central claiming is like the claim defines the position of the hole (the “Best Mode” if you like) and the judge says whether the accused embodiment trespasses, ie is or is not on the green. English peripheral claiming simply requires that the claim define the location of the edge of the green.

    This is one reason why writing claims for Europe is such fun.

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