The Lost ‘Art’ of the Patent System

by Dennis Crouch

Sean O’Connor has released a draft version of his new article titled The Lost ‘Art’ of the Patent System.  O’Connor builds on his earlier UChicago Article on the meaning of Discovery, now focusing on the term useful arts.

I contend that the shift from ‘‘art’’ to ‘‘technology’’(and, even worse, ‘‘science’’) loses sight of critical parts of a well functioning patent system and blurs boundaries than can result in both a temptation for problematic ‘‘upstream’’ patenting of basic science research results and an improper bias against ‘‘nonscientific’’ artisanal innovation. Instead, I argue for a system that focuses once again on advances in the ‘‘useful arts.”

Read it here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2664837

 

26 thoughts on “The Lost ‘Art’ of the Patent System

  1. 7

    “blurs boundaries than can result in both a temptation for problematic ‘‘upstream’’ patenting of basic science research results and an improper bias against ‘‘nonscientific’’ artisanal innovation.” Should be clue enough.

    “Upstream”

  2. 6

    I searched, but could not find any analysis in the article about Jefferson’s Edit to 101 where he dropped “discovery,” but added “new” and “composition of matter” to the 1790 version. The requirements for not being “known” or “used” before (the application) were retained.

    Now consider had he NOT made this edit. Discoveries of compositions not known or used would have been patentable by statute regardless that they were not new in point of fact, but were discovered from nature.

    Newness imposed an absolute requirement of newness in our patent law. But this, Jefferson automatically excluded discoveries of laws of nature, natural phenomena, and products of nature from the patent law.

    I still find it interesting that the Supreme Court had to look to England, in Le Roy v. Tatham, to “discover” this principle of patent law, rather than looking to Jefferson’s Edit.

    Regarding “useful arts,” the Jefferson Edit’s “machines, manufactures, compositions and Art” defines what that is. Thus Art has to be limited to the making or using of machines, manufactures or compositions as a primarily limit.

    Jefferson folks. Jefferson.

    1. 6.1

      You do realize that Jefferson (alone) is not the key BRANCH of the government that you should be concerned with when it comes to statutory patent law, eh Ned?

      (And don’t even get me started about years later trying to import the “Story bias” from the judicial branch)

      1. 6.1.1

        Well, Congress certainly change the law in 1793 in the way I suggest. I had Jefferson’s name to the statute because he is reputed to have created the 1st draft that was eventually enacted. We noted some of what he liked did not get enacted in the law. But the general outline of its approach clearly was enacted – especially the “registration” system approach did not work out so well. Therefore, unless you have evidence to the contrary, I think we should agree that Jefferson was a principal author of this revision to “101.”

  3. 5

    So when is the PTO going to hire a whole bunch of Examiners with “artisanal” backgrounds to examine all these awesome “artisanal” patents? Pickle-making, pottery, brewing, baking and organic gardening seem popular these days. The best part, of course, will be the increase in prices of already expensive “artisanal” brands because patent. That will encourage more people to simply do stuff for themselves. But wait! If the “artisans” are selling patented stuff but nobody’s buying because the price is too high, then they can always recoup their “investment” by sueing people. Ah, yes: the patent lawsuit. Now there’s a much beloved “art”, especially among self-motivated individuals who have talents other than pushing paper around. Right.

    1. 5.1

      Page 1476:

      “The key to restoring some order to the scope of patent eligible subject
      matter is to revive the concept of ‘‘useful arts.’’ Building from the
      Map of Human Knowledge in the Encyclopédie, we can focus on ‘‘uses of
      x,’’ where x is some natural material or force. We can then limit patent
      eligible subject matter to those inventions that progress or advance the
      use of natural materials or forces for practical (useful) ends. In practice,
      this should keep in the vast majority of what we already consider to be
      patent eligible subject matter, while giving a principled way to exclude
      things we generally already believe should not be patent eligible. For example, the boundaries of these Encyclopédie useful arts also already exclude laws of nature, naturally occurring physical phenomena, and abstract ideas, and so no ad hoc judicial exceptions would be needed for
      them.”

  4. 4

    The key to restoring some order to the scope of patent eligible subject matter is to revive the concept of ‘‘useful arts.’’ Building from the
    Map of Human Knowledge in the Encyclopédie, we can focus on ‘‘uses of
    x,’’ where x is some natural material or force. We can then limit patent
    eligible subject matter to those inventions that progress or advance the
    use of natural materials or forces for practical (useful) ends.

    Linked article at 1476.

    Fully agree.

    The article essentially restates Le Roy v. Tatham and Corning v. Burden. We cannot give patents to scientific principles in the abstract, but to “inventions” which comprise practical, physical applications of these principles to produce new, physical results.

  5. 3

    an improper bias against ‘‘nonscientific’’ artisanal innovation.

    I have to slog through this paper to find out exactly what awesome “nonscientific
    artisanal innovation” isn’t being promoted enough to satisfy the author?

    Is there a section on the “art” of homeopathy? Or the “art” of conning people out of their money? Do tell.

    1. 3.2

      Is this not yet another example of an academic needing to publish, and finding a subject of topical interest to put into the title?

      And isn’t the failure of the authors to find a tangible difference between “useful arts” and “technical” a vindication of the EPO interpretation of GATT-TRIPS, the Statute of Monopolies and the patents clause?

      It has always been my understanding that no scientific basis for the subject matter of the claim is required in the specification. Thus, in the patent system there is no prohibition on “non-scientific” subject matter.

      1. 3.2.1

        Max, the article restates the principles of both Le Roy v. Tatham and Corning v. Burden. It focuses on patenting physical improvements not principles in the abstract, laws of nature, things of nature. It is nothing new in reality. But it does show on how far from reality the Federal Circuit strayed until Bilski.

      2. 3.2.2

        MD: no scientific basis for the subject matter of the claim is required

        But without credible evidence that the “innovation” works, the chances are extremely high that an “innovation” which contradicts basic scientific principles either lacks utility or is non-enabled. If the utility of your “innovation” critically depends, e.g., on the Invisible Gremlins Theory for its functionality, I’m pretty sure you’ve got a pile of patently unworthy junk.

        Science is really just a logical method for exploring and understanding the universe. The results of that method may fairly be termed “scientific” (when the method is carried out competently, anyway). More importantly, however, the existence of a “scientifically” sound basis for the functionality of a process is definitely not — and definitely should not be — the end of the analysis for patent eligibility.

        1. 3.2.2.1

          Quite so. What I had in mind is that, where I live, the validity of your patent is not dependent on your including in your application as filed a rigorous scientific explanation of why the invention works. But you do need to include enough disclosure to render it at least “plausible” that it works.

          Not sure whether your “credible evidence” and my “plausible” are the same test, but my sense is that they are not a million miles away from each other. Which of course is what one would expect and no more or less than common sense.

          Suppose I’m Speedo and patent a shark skin bathing costume for winning gold medals at the Olympics. I can’t explain why those wearing it swim faster, but they do. How “scientific” is my invention?

          1. 3.2.2.1.1

            I like the blue ball for raquetball, but how do you claim that, given the semi-recent “what color is the dress” internet meme…

            Do you claim by “received” wavelength? But any different light can change the actual object’s “received” wavelength. Do you claim by emitted wavelength at a given input? But that claim too is worthless. What you want is the effect to be captured. But that seemingly runs afoul of what “common sense” allows in not allowing the patenting of “the idea.”

      1. 2.1.2

        6, if you know, is a quantum state defined by

        1. mass
        2. energy
        3. location in space
        4. location in time
        5. direction in space-time?

        Or is there something else?

        We have two stable quantum states for a particle — physically separated by space. When transitioning between states, how is time involved?

        1. 2.1.2.2

          A quantum state is just any consistent state of a system. Usually we think of any solution to the quantum wave equation as a quantum state.

          The solutions are defined over space and differentiable so there is no such thing as a quantum state with a fixed location in space; they all have presence across space. Object rest mass is usually constant.

          Often quantum states will have different energy levels. But multiple states can have the same energy level, a condition called degeneracy. Often that’s a hint that we should look for ways to exert external influence to separate energy levels. That’s how spin was first discovered.

          1. 2.1.2.2.1

            “The solutions are defined over space and differentiable so there is no such thing as a quantum state with a fixed location in space; they all have presence across space.”

            Now this is mind-boggling.

        2. 2.1.2.3

          Where entanglement is being discussed Ned, quantum state often includes “spin” (Up, down). They flip one and the entangled atom or electron, remotely located (60 miles away according to a recently reported experiment) flips too.

          1. 2.1.2.3.1

            Yeah, Les, spin could be a quantum parameter. But is this more than rate and angular direction. Does it include some sort of definition of what is being spun and where it is?

            1. 2.1.2.3.1.1

              Spin is not actual “spin” Ned.

              (I just cannot WAIT to see the politeness police in effect for Malcolm’s posts…. :-) )

    1. 2.2

      “Mars is not the dry, arid planet that we thought of in the past,” said Nasa’s Jim Green. “Liquid water has been found on Mars.”

      link to theguardian.com

      “Agencies were required to do their utmost to avoid contaminating other planets with microbes from Earth, making wet areas the most difficult to visit. “This will give them lots to think about,” he said.”

      So, there are private missions to land colonies on Mars. Obviously, they will bring microbes. Are these private missions “illegal?” If so, who is going to stop them, especially if they launch from a location not subject to US jurisdiction, like, China, just as an example.

  6. 1

    Bro this ain’t a “paper”. This is a small book 80 pages long. I look forward to reading it though, I checked the table of contents. It’s cool you checked out the Encyclopedie. I read the ending and it seems you and I are pretty much of similar mind on this topic though I’m not sure I join with your thoughts fully.

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