Of interest on the political economy of patents. Libertarians are now coming around to Stephen Kinsella’s point-of-view: that patents are not the type of property rights that libertarians should support. From Cato: http://www.cato-unbound.org/2014/09/08/eli-dourado/true-story-how-patent-bar-captured-court-shrank-intellectual-commons
FYI: cato.org is the Cato Institute’s website, not cato-unbound.org.
Most libertarians do not have an issue with patent rights, as it is a form of incentive-based economy. Where libertarian’s like me have a problem is when the government comes in and begins to pick winners and losers and regulate where the market is more efficient on its own.
Libertarians who want to eliminate modern government functions should have to eat their own words. Specifically, eat food that has never been regulated or inspected, supplied by unregulated suppliers free to maximze profits by any competitive means. Like the Chinese libertarian companies that made money by selling chemically adulterated milk that poisoned numerous children. Plus, be able to invest their life savings in stock or bonds or banks in an entirely unregulated and uninsured industry that can be run by successful practicing libertarians like Jay Gould or Bernie Maddoff. Investing in R&D to invent publicly valuable new products would be a waste of time and money since without patent protection anyone else could take the same technology for free to make and sell the same products for less. But that does not mean that patent litigation does not need any regulation.
Cur, food inspection? Why does government have to do that? Don’t you think that if the government simply stepped aside, that the private industry wouldn’t inspect food products as well?
Ask yourself, does the FDA really do any good? Why not let the doctors decide based on published data, etc. They get sued if they make mistakes.
And the beat goes on.
Why would private industry inspect? In a libertarian society there would be no redress.
Profit
Fraud
Negligence
Breach of contract
Surely at least one of these would exist/be punished/be upheld in a libertarian society… even if it were done in the absence of a rational moral foundation.
In a full libertarian society, the only rule is caveat emptor. If a person is dumb enough to buy soap packaged as cheese (a real case), that is that person’s problem.
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Phil – Last we checked, this site was about patents, not about personal attacks against those who disagree with our views on patents. If you feel Kinsella is wrong, show us, in precise terms, just where he strays from the path. Most here do not agree with Kinsella but none other than you has resorted to name calling. Let us show some class, please.
tifoso:
“Godless commie” is not necessarily an insult, anymore than, “God-fearing capitalist” is an insult.
Certainly, IF person A is “God-fearing” he may be insulted by being called “Godless”, BUT if in fact he is an Atheist he will be flattered to be called “Godless”, and in fact would be INSULTED to be called “God-fearing”.
Equally, if Kinsella IS a socialist he may be flattered at being equated with the purest/best kind of socialist: the “commie” (communist) whereas he would be insulted at being called a “capitalist”.
So, in summary, “Godless commie” is a statement of fact which may or may not be false, and may or may not be insulting to the degree by which it misses the facts of reality.
I suspect from the reasoning in his article and from general statistics (although I have no real evidence) that Kinsella is a God-fearing socialist, and hence is partly half-flattered (called a commie) and half insulted (Godless).
So “Godless commie” is sort of a 0.25 insult… but not necessarily so.
Nonetheless, it was an ad hominem attack which lowers the level of discourse. Further, the attack contained no substantive refutation of the position of Kinsella. (Again, I do not agree with Kinsella.)
Indeed the intent as does lower “the level of discourse”. Plus there is no evidence Kinsella does not know he is a communist…
I am not defending Kinsella by any means. I just feel that name-calling does not further the discussion.
Your statement “there is no evidence Kinsella does not know he is a Communist” turns evidence rules inside out. You attempt to make the absence of evidence into evidence. We have no evidence that you are not an agent provocateur who visits these pages to disrupt discourse and that you have been merely waiting for the right moment to spring.
I don’t think it was an ad hominem attack at all. The point was really that in the case of patents, Kinsella’s libertarian views align with communist views because he is against patents, which protect (intellectual) property rights. So if you’re against patents, you’re advocating that people donate their property to the public for all to share freely, i.e., putting the property in the ‘commons’–thus a ‘communist’ idea. The “Godless commie” comment was IMO just a throwaway joke and should not be misconstrued as name calling or an attack, or used to distract from the main point.
Unless the man declared himself a Communist, it was an ad hominem attack. “Communist” is a highly-charged word carrying with it images of gulags and pogroms. Let us not forget that in the McCarthy Era, which I lived through, people lost jobs and property merely because they were accused of being Communists. It was inappropriate for a discussion at this level. It is not the sort of thing sane adults joke about.
Let us not forget that in the McCarthy Era, which I lived through, people lost jobs and property merely because they were accused of being Communists. It was inappropriate for a discussion at this level. It is not the sort of thing sane adults joke about.
Pay attention, people.
I think the author swings and misses on the biggest critique of the patent system. The best argument, from a libertarian point of view, is that a patent is not a natural right, but an instrument of government policy. Therefore, patents are big government, granting the privilege of one person to prevent another from doing what he would otherwise do. Obviously, the major premise here is disagreed by many, but that would be the author’s best argument. He missed it.
I’m not against the patent system. I think the social benefits outweigh the social harm (at least for well-developed countries like the United States).
I assume you are not throwing out “property rights” altogether (i.e. all not natural rights).
What makes “ownership of land” a natural right, registered/defined according to government policy and whose rights are upheld/protected/enforced in court or by the police (i.e. by government), assuming (as you say) patents are not ? Please provide the differentia which are relevant to “natural rights”.
First, I recognize patent as a legal right, but not a natural right. I think that it is an important legal right, and one we should continue to have.
Real property as a natural right is one that is difficult to make for me, and not a great comparison, anyways. May I use the natural right to chattel, instead?
If I were to make, let’s say, a violin from a piece of wood. Natural rights would let me keep that violin that I make. Paraphrasing Locke, anything made by one’s body or hands should belong to him or her. But does that mean that the violin maker should interfere with someone else’s ability to make a violin from another piece of wood… or even that tree that was cut down?
You see the difference between a natural right to chattel (of which the creator made) and the right to prevent others from making similar chattel. The property interest is the conception of the invention, not merely the invention itself.
I am very much aware of the counter-argument: the inventor should have the property interest on the market that the inventor created by his invention. To that I say, then why is it limited in time? If it is a natural right, why doesn’t the inventor have the right in “fee simple”? Because the government limits it… because it is a government granted right, not one that comes from natural law.
If patents were a natural right, why did the founding fathers have to expressly provide in the Constitution that Congress had the ability to grant patents? Why do we have any requirement other than novelty? I will finally point out that most countries in the world do not view patents as a property right, but an instrument of government policy.
Had the Kings not been granting patents to get skilled tradesmen to move to England whereby patents were a royal prerogative, the protection of inventions may have developed under common law just as did copyrights.
The principle involved is that every man has a right to the sweat of his brow. This was the very principle under which common law copyright developed.
I absolutely disagree. The courts at law HATED patent rights from the beginning. They held that it was a violation of common law for hundreds of years.
The difference between copyright and patents is that you can get a copyright by just being creative (like a novelty requirement.) Correct me if I am wrong, you don’t have to apply for a copyright to get one. Furthermore, you can place it all the blame on letters patent in England as somehow stopping development of a common law right. Why hadn’t it developed in common law in other common law countries? No matter where you go in the world, you don’t get patent rights unless the country gives it to you. That is strong evidence that it is an instrument of public policy.
Even if you are right that it would have developed, you are implicitly agreeing that the current state of patent law is not from natural law rights.
J, well trade secret law is a form of protection of an invention.
However, what makes patents different from trade secrets is the requirement of disclosure coupled with a limit on term.
Copyrights could and probably should be indefinite.
Thanks J for your thoughtful dialectic. One correction however: A persons unique thoughts are the natural right. There is no natural right to a patent. The patent construct is (was?) the American experiment in providing a State that would protect a person’s unique thoughts, subject to disclosure, novel, non-ob, enablemen, etc, in exchange for a limited right. The right to ‘sue out a patent’ comes from the constitutional experiment. Not from a natural right per se.
iwasthere, copyright developed at common law. Why?
Statute of Anne. 1710. See wikipedia article Copyright History.
Common law copyright came first.
Sweat of the brow.
Not according to the article which you probably have not read. Prior to printing, it was not much of an issue. Books had to be copied by hand. Few were literate. Once printing took off, the English Crown granted copy rights, often through “patents” and “monopolies”. First copy rights went to Richard Pynson in 1518.
Read the article. Note that the article does not mention common law rights If you have a cite, please copy if for us, ahem.
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 349, 118 S. Ct. 1279, 140 L. Ed. 2d 438 (1998).
Where is Feltner does it state that common law copyright came first? To be first it must predate 1518. Feltner stands for the right to jury trial in copyright cases. It was decided on the copyright statute.
Donaldson v. Beckett, UK, 1774 and Wheaton v. Peters, US, 1834. Both hold that copyright is not a “natural right” but a creature of statute.
From Felther at 349, the page I cited.
I have tried to paste and post an exact quote, but no matter how many times I try, it will not post.
Feltner holds the opposite, it is recent, and the holding was necessary to the result of the case.
As usual for Justice Thomas, a sloppy opinion in Feltner. I disagree with your conclusion that the holding necessitates that copyright be viewed as a common law right. The first two paragraphs under III (the first is quoted below) seems to support tifoso’s argument.
The Seventh Amendment provides that ” [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . . ” U.S. Const., Amdt. 7. Since Justice Story’s time, the Court has understood “Suits at common law” to refer “not merely [to] suits, which the common law recognized among its old and settled proceedings, but [to] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.” Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830) (emphasis in original). The Seventh Amendment thus applies not only to common-law causes of action, but also to “actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989) (citing Curtis v. Loether, 415 U.S., at 193, 94 S.Ct., at 1007-1008). To determine whether a statutory action is more analogous to cases tried in courts of law than to suits tried in courts of equity or admiralty, we examine both the nature of the statutory action and the remedy sought. See 492 U.S., at 42, 109 S.Ct., at 2790.
J, I think the salient point of Felton, for the purpose of this discussion, was a copyright had developed it, law and England.
Whether and how common law copyright would’ve developed in United States without statutory support is a thing we cannot know. What is true though is that with the constitutional provision requiring limited terms, copyrights cannot extent forever in contrast to common law rights.
You misread Feltner. It is about the right to jury trial on damages in a copyright action.
Copyright Act of 1976 abolished all state and federal copyrights, including any common law rights if such existed.
tifoso,
Do you know why the discussion of whether copyright was a common law prior to 1792 right might be relevant to a decision on the 7th Amendment right to a trial by jury?
First, it was Clarence Thomas who authored Feltner. His legal mind stopped at 1789.
Second, the decision does not depend on the definition of common law as set out in Blackstone’s Commentaries but on the distinction between law and equity. The terms “law” and “common law” are one and the same in the decision.
Third, nowhere does the decision hold that there was a common law, qua Blackstone, right to copyright.
You are making mistakes of interpretation that a middle range first-year law student would not make. You argue for the sake of arguing. Enough of your yah but.
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Ned – FYI. Thomas is an advocate of what is called “original intent”. To him, the Constitution means what it meant what he thinks the Framers meant in 1789.
tifoso, If you have a link to where Thomas said what you just said, I would appreciate it.
However, it is hornbook law regarding statutory construction to interpret the terms of the statute as they were understood at the time of enactment of the statute. I presume the same should be true with respect to the terms in the Constitution.
In fact, I’d like a quotation to Supreme Court case that actually holds that the terms of the Constitution are not to be interpreted according to their meaning at the time of the Constitution so that they can be twisted and turned any which way at all such that the Supreme Court can effectively amend the Constitution by conveniently forgetting the original intent.
Ned – You should know how to your own research.
You obviously have not taken Con Law yet, have you?
Think hard. What did the 14th Amendment do to the Constitution and that hornbook notation?
tifoso, I took con law before Thomas was a justice.
Cite please.
Iwasthere: I’m not sure you are correcting me, I agree that a person’s thoughts, and concepts of an idea, are natural rights. That’s why I say there is a natural right to use the method one uses to make a violin. In fact, the second person who comes up with the same method should have a natural right to use that method.
Ned, how do natural rights works in this situation (assuming first to invent system)… Person A makes method X, and Person B makes method X as well, after but independent of A. In our patent system, if A gets a patent, B is excluded from his “sweat of the brow” creation.
Furthermore, lets say C derives/copies B in the above scenario (still first to file). B cannot stop C, because B was not the first to invent. But if the right to exclude was a natural right, then B should be able to stop C whom absolutely is copying B.
I made all those assumptions under first to invent. But I cannot think how the right to exclude is a natural right. It seems in direct contradiction.
J, I think trade secrets are form of protection of invention, but require some unlawful activity misappropriate the trade secret. The problem is of course that trade secrets do not protect against independent invention. That’s where a patent comes in. However the genius of the patent is the requirement for disclosure.
So look at trade secret protection as a form of common-law patent, with additional rights provided by statute in exchange for disclosure.
Reverse engineering, the simplest way around a trade secret, is not illegal activity. Trade secret protection in today’s world is all but useless.
Regardless of the utility of trade secret protection, it is an example of common law protection of invention.
Ned –
So what if trade secret is an example of common law protection of IP? What does that have to do with a claim that common law copyright came first?
tifoso, I think we are running in circles here.
IIRC, the original statement was that the protection of inventions was not a natural right.
I begged to differ, as inventions, and copyright both flow from the right of a man to the sweat of his brow. The original English copyright cases held this. I suspect, the same would have developed for inventions and did develop to an extent by protecting trade secrets.
What I am saying is that the right to exclude, the heart of the patent rights, is not a natural right. Trade secret might be a natural right, but that doesn’t give one the right to exclude.
The fact of disclosure enforces my view that it isn’t a natural right. Patents are an instrument of government policy, to get it you have to do something that would normally be your right (keeping it secret.)
Why is the right to exclude not a natural right? If I own a house, I have the right to exclude you from it. If I do not have that right, then I do not own that house. If I farm and produce crops, I have the right to exclude others from just helping themselves the fruits of my labors. If I write a book, I have the right to exclude others from copying my book. If I create a useful and novel piece of software, why can I not exclude others from simply taking the fruits of that labor? Where is the dividing line and why?
J, well, we might never know what common law might have done absent the Statute of Monopolies.
Patents were a creature of crown prerogative. Patents on invention were one such creature.
But, assuming no Statute of Monopolies, the protection of trade secrets might have developed and did develop under common law. Just how far that might have gone in protecting against truly independent development is another thing. We know that copyright requires actually copying and independent invention is a defense. So, the common law on inventions might have developed some sort of limited protection on copying without the direct intervention of statutes.
Tifiso:
The difference is this. If you cannot exclude me from your home, you cannot enjoy your home. If I copy your intellectual property, that doesn’t stop you from enjoying the fruits of your conception… it only erodes your right to make money from it.
The right to exclude is directly contrary to natural rights of one enjoying one’s labor. You invent/file something first, and I independently invent the same thing. Why do you get to stop me from making my creation?
J, “The right to exclude is directly contrary to natural rights of one enjoying one’s labor. You invent/file something first, and I independently invent the same thing. Why do you get to stop me from making my creation?”
J, copyright requires copying.
Could a common law invention right require copying as a necessary element of proof?
Ned,
I’m not sure what you are asking. I’ve already asserted that copyright is not a common law right.
J, but Felton demonstrated that common law copyright had developed before the Statute of Queen Ann.
Your personal opinion on the matter is not controlling.
“The problem is of course that trade secrets do not protect against independent invention.”
Ned that is exactly what I am saying. And you have not adequately addressed this question, if you get a “sweat of the brow” right, why don’t I get a “sweat of the brow” right? What is so special about you thinking of it first that you get to exclude me from my creativity?
J, of course independent invention would allow the second inventor to use the same invention.
But, if one were to show copying of one’s product?
Think how easy it would have been for Apple to enjoin Samsung if it had common law invention protection. All it would have had to show was copying of the product and that aspects of the copied product were original.
Ok, copying it that way is trade secret misappropriation. I agree that could develop through common law.
But trade secret, though a form of intellectual property, is contrary to patent law. That is why we have a patent/trademark election in this county. You can pick common-law type protection, or patent law protection. Trade secret is not the right to exclude.
In my mind, you conceded when you said, “of course independent invention would allow the second inventor to use the same invention.” That is fundamentally different than any patent system.
Going back to what Libertarians could argue (rather than whine about the Fed. Cir.) is argue that the patent system should be abandoned and only use a trade secret system.
As far as your hypothesis that Apple could easily enjoin Samsung, I’ll just point out that you completely washed out the difference between damages and equity. You only get equity if your damages are inadequate. That is true whether it is a common law or statutory right.
Finally, let me admit that I misread Feltner above. Thomas does say that copyright was developed at common law. But I will say two things to that: it doesn’t matter, because it was not necessary for the holding given the language that I cited above, and two, just because the Supreme Court says it was the history doesn’t make it so (see for example the Court’s assertion that Thomas Jefferson wrote the 1793 statute.)
Good discussion, J.
Loved it, Ned.
We all know of the recent decision of the Federal Circuit, penned by Chen, that held that a later-issuing, but first-to-expire, patent having a terminal disclaimer with respect to an earlier-issuing patent, will cause the premature termination of that earlier-issued patent. It struck me today that this will effectively eliminate any extension-of-patent-term benefits one might have in the earlier-issued patent when the two patents have the same effective filing date.
Does anybody disagree with this?
If so, I think a lot of us will have to modify our databases to take care of the situation.
I think this is right and a very good point Ned. It brings up tactics that should be taken for important patents.
Night, I just re-read the Gilead case and it appears that, under it, a lot of earlier-issued, but later to expire patents may now be invalid because they have no terminal disclaimers.
This result seems compelled by the Gilead case.
I believe that patentees could correct this by filing a terminal disclaimer now.
Does anybody disagree with this?
I think I do. Which case are you talking about, Ned?
Ned, thanks for the post–could you clarify which case? Neither Scientific Plastics nor Interval Licensing seem relevant to this point, unless I’m being particularly dense this morning.
GILEAD SCIENCES, INC. v. NATCO PHARMA LIMITED, No. 2013-1418 (Fed. Cir. Apr. 22, 2014). link to scholar.google.com
Here, the second-to-issue patent expired first. It had a terminal disclaim wrt the first-to-issue patent. But the first-to-issue patent had no terminal disclaimer.
“With those principles of double patenting in mind, we now turn to the question presented by this appeal: whether a later-issued patent can serve as a double patenting reference for an earlier-issued patent if the later one expires first.”
“Looking instead to the earliest expiration date of all the patents an inventor has on his invention and its obvious variants best fits and serves the purpose of the doctrine of double patenting. Permitting any earlier expiring patent to serve as a double patenting reference for a patent subject to the URAA guarantees a stable benchmark that preserves the public’s right to use the invention (and its obvious variants) that are claimed in a patent when that patent expires.
Furthermore, using the expiration date as a benchmark in post-URAA cases of obviousness-type double patenting preserves the ability of inventors to use a terminal disclaimer of later-expiring patents to create one expiration date for their term of exclusivity over their inventions and obvious variants, “which is tantamount for all practical purposes to having all the claims in one patent.” Braithwaite, 379 F.2d at 601. Such disclaimers would preserve the public’s right to use a patented invention and obvious modifications of it when the earliest patent expires and would effectively overcome any objection to improper term extension.
…
We therefore hold that an earlier-expiring patent can qualify as an obviousness-type double patenting reference for a later-expiring patent under the circumstances here. In cases where such obviousness-type double patenting is present, a terminal disclaimer can preserve the validity of the later-expiring patent by aligning its expiration date with that of the earlier-expiring patent. That disclaimer will most effectively enforce the fundamental right of the public to use the invention claimed in the earlier-expiring patent and all obvious modifications of it after that patent’s term expires.”
Thus, if the second to issue patent is filed on the same day as the first and it has a terminal disclaimer, but the first to issue patent expires later and it does not have a terminal disclaimer, the first to issue patent is now invalid.
GILEAD SCIENCES, INC. v. NATCO PHARMA LIMITED, No. 2013-1418 (Fed. Cir. Apr. 22, 2014). link to scholar.google.com
Here, the second-to-issue patent expired first. It had a terminal disclaim wrt the first-to-issue patent. But the first-to-issue patent had no terminal disclaimer.
Thus, if the second to issue patent is filed on the same day as the first and it has a terminal disclaimer, but the first to issue patent expires later and it does not have a terminal disclaimer, the first to issue patent is now invalid.
I bitterly complained about this case at the time.
DanH, on rereading, the situation may be a lot worse that I thought.
Thus, if the second to issue patent is filed on the same day as the first and it has a terminal disclaimer, but the first to issue patent expires later and it does not have a terminal disclaimer, the first to issue patent is now invalid.
That does seem to follow from Chen’s decision, Ned. Of course, this all assumes that the claims in the first-to-issue patent are, in fact, obvious variants of those in the second-to-issue patent.
For all of the reasons that Rader gives, however, it seems unduly harsh that the first-to-issue patent is invalid even before the other patent expires.
For what it’s worth, I think many practitioners will file a terminal disclaimer every time the examiner brings up OTDP, thinking that there’s little harm done, especially when the priority dates are the same. But, these OTDP rejections are often without merit, I tend to push back, since the terminal disclaimers are certainly not without consequences.
DanH, I do not think that most of us are thought things through about this case. It is unbelievably harsh, and it must be wrong.
We are probably going to need a statutory fix.
Actually, the Gilead case simply held the first to issue patent could be invalid because it had no terminal disclaimer with respect to a second to issue but earlier expiring patent. This today is a common occurrence in patent families because of patent term extensions. Any patent receiving an extension may be invalid if it does not have a terminal disclaimer on file with respect to other family members. This may be impossible if there is a later continuation filed.
The principle of Gilead case is that all patents that claim the “same” invention must expire at the same time or any later-expiring patent is invalid.
This now creates a virtual nightmare because of patent term extensions made the exact termination date of many patents a virtual unknown. Moreover, none of us, that I know, ever include terminal disclaimers in all patents in a family just as a precaution.
Wow! Wow! Wow!