Interesting historical look at patent-pools and ‘transaction entrepreneurs’ by USC law professor Jonathan Barnet leads him to the conclusion that the “anti-commons” concerns in the patent context don’t hold weight in practice.
IP scholars and policymakers often maintain that [anti-commons] effects are endemic in IP-governed markets and therefore tend to endorse the view that IP rights should be reduced to mitigate those effects. The descriptive component of that proposition cannot be reconciled with the clear weight of contemporary and historical evidence—covering more than a century’s worth of experience—that AC effects are repeatedly mitigated through independent market action by affected constituencies or transactional entrepreneurs. This is true both in concentrated markets, in which repeat-players have incentives and capacities to converge on a knowledge-sharing arrangement, and dispersed markets, in which intermediaries commonly enter to supply transactional solutions that ameliorate AC frictions. Remarkably, recent historical research shows that this proposition holds true even in “easy” cases that have long been assumed to provide clear illustrations of AC effects. Recognizing the shortcomings of the AC thesis as a descriptive proposition rebuts normative intuitions that intensive levels of IP acquisition and enforcement trap markets in a transaction-cost web that depresses innovation. This sophisticated view of AC effects as a potential but rarely realized outcome provides the basis for a more nuanced appreciation of the role of IP rights in creative and technology markets.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2633695
I can guarantee that there will be no substantive posts by the typical anti-software and anti-business method patent view holders on the subject of this thread.
And yes, by substantive, I do mean an inte11ectually honest post that objectively recognizes and integrates all of the points of discussion long on the tables of dialogue of this here “America’s leading patent law source.”
Oh, I do so hope to be proven wrong in this instance.
I do I do I do.
Justifying non-erosion of IP or any other rights by arguing they do not threaten the commons, an economy, a public, or any system or government is a fundamental moral, ethical, and political inversion.
It is like trying to justify protection of the rights to life, liberty, and the pursuit of happiness, because they do not harm a government or a system, or a politician’s pet project to build a public park… as though governments and systems and works whose sole purpose is to serve individual people have rights to exist independently or over and above the rights of individual people.
It is not the case that a government or a system is to be served by these rights, nor does anyone need to plea and argue that they are so served nor apologize for any appearance that they are not so served, for it is the very opposite that is true, the government and the system are set up solely in service of those rights, and they are absolute guiding principles of freedom.
Far from needing to plead IP rights aren’t that bad because they do not harm some mystical commons upon which the existence of some imaginary collective public depends, one needs to recognize that rights and freedom are what makes life and happiness to every individual of that public possible.
Rights and freedom are not distinct things. One cannot have freedom without rights. One cannot have rights without law. One cannot have law without government.
The idea of the commons is like an idea of some natural wilderness were all the resources are owned by all. In such an environment there are no rights, and experience shows that might makes right.
Only when people have rights to a particular piece of property does one invest. Take a look at Haiti as an example of what happens when nobody owns the land.
Speaking about separation of powers – and other constraints that the Royal Nine face:
In other words, it is high time to take a critical look at the Court’s own scrivining and subjective conjectural basis of “may” cause some future harm to innovation and realize that the Court too is not allowed to provide such advisory opinions in its Wax Nose re-writing of statutory law.
Maybe Judge O’Malley can publish a follow-on piece….
Absolute and Total B$ Ned.
Your worship of the Royal Nine is a severe weakness. For example, you want separation of powers – but only when it aligns with your agenda. You post a link to O’Malley who explicitly warns against currying the law inappropriately through judicial activism and then disappear (as usual) when I point that out and ask you about it – politely even, so please spare your latest round of B$ on that topic.
Your oath as an attorney – I invite you once again to read it – does NOT place the Court above the constitution. You seem unable or unwilling to understand what that means.
You sir, are a hypocrite beyond compare. And a coward and inte11ectually dishonest to boot.
Ford, Cruz, Palin – none of whom mirror my views are nothing more than you muckraking again. Douglas as a Justice? one of the all time worsts – regardless of what Ford tried to do.
SMARTFLASH LLC v. APPLE INC.
link to cafc.uscourts.gov
More than a year into litigation and only three months prior to trial, Apple filed a series of CBM petitions on 101 grounds against a number of SmartFlash patents. While these petitions were pending, the district court litigation went to trial resulting in a jury verdict in favor of SmartFlash including on 101. After trial was complete, the PTAB authorized trial on virtually all SmartFlash patents. Apple moved to stay further litigation. The district court denied Apple’s motion. On appeal, the Federal Circuit (O’Malley for court, Linn) affirmed. Newman dissented – because the Federal Circuit reversed a similar stay in Samsung because the Samsung case had not yet gone to trial and Newman believed that Apple and Samsung should be treated similarly.
Part of the reason for the holding of the court was that the purpose for CBM’s was to provide an alternative to litigation. Apple had argued that for a bright line rule that whenever a CBM was authorized that there be an automatic stay. This notion was rejected by the court.
Newman’s dissent recognized that the uncertainty in the state of the law regarding the relationship of the executive to the courts that should be a factor on the side of staying the Apple litigation. Her remarks specifically referred to the constitutional relationship between the executive and courts.
This judge continues to evidence a shameful ignorance of Article III and the rules governing separation of powers. The quoted statement below is particularly egregious — I hope that the academics are taking note; this is the shakiest of foundations upon which the PTAB was built.
“The issue is not simply that of . . . constitutional
dimension as to the relationship between the judiciary
and an executive agency. Included must be the overarching
concern for serving the national interest in technological
advance, and how best to achieve it.”
Ned too lacks a consistent view of the separation of powers.
More of that “if-it-aligns-with-Ned-it-must-be-a-genius” malady.
Just look at his “pals” here: Malcolm, 6, and Random.
How much real legal knowledge do you think is in that group?
So Professor Eisenberg was wrong about the impact of the so-called “anti-commons”? Why am I not surprised.
And she’s still unrepentant. No surprise there either.
What about anti-Commune effects endemic in all markets caused by the existence of individual property rights? Shouldn’t the scholars and policy makers endorse that individual property rights in general be reduced to mitigate those anti-Commune effects?
“Speak to the Hand.”
– said in the best Adam Smith tones
Common now… what was “true” “for” Adam Smith “then” is not necessarily “true” for “us” “now”.
Modern “Progress” marches on, there is no “I” in “Commune”,… resistance is futile.
Hidden within “commune” is “me no u”
Some animals are just more equal…
In other words, it is high time to take a critical look at the Court’s own scrivining and subjective conjectural basis of “may” cause some future harm to innovation and realize that the Court too is not allowed to provide such advisory opinions in its Wax Nose re-writing of statutory law.
Maybe Judge O’Malley can publish a follow-on piece….
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