I just read an interesting short article from Prof Gregory Mandel (Temple) titled What is IP For? Experiments in Lay and Expert Perceptions [available here]. Part of the papers includes survey results from both lay individuals and IP professionals who answered the question: What is the Purpose of Intellectual Property Rights? The vast majority of IP Professionals indicated the incentive justification for IP rights: The potential for strong rights sets out a carrot that encourages innovation. Law individuals, on the other hand, more often indicated that IP rights are designed to prevent or sanction plagiarism. Mandel also noted a severe lack-of-knowledge of US adults regarding intellectual property rights — with their study participants only barely outperforming random answers on a basic ten question IP law quiz.
“Purpose” starts with the Quid Pro Quo.
Again, please forgive the double posting effect of a filter gone hyper…
“perceptions” – on the other hand – can play the devil to any purpose – even (or especially) purposes at odds with simple purposes that should be well understood.
😉
– integrated with:
There is a major misstep in the question being pursued at the academic level here.
The very essence of the patent system in the Quid Pro Quo is missing from the discussion.
Once the Quid Pro Quo is properly recognized, and the value and trade inherent in the deal is recognized, then one needs to look at the fact that LEGALLY the property that is the patent grant is deemed to be personal property.
Would we (the “we” being us here in the United States) ever deem that any other personal property would be left up to the courts to decide for us how to use, and that decision being based in part on who the owner of the property is?
Now take these questions at the “top level.”
In other words, do not attempt to dilute them with comparisons to subsets of personal property that may have legally recognized dangerous effects (i.e., explosives and controlled substances). No matter what your feelings are to patents (or to categories of patents, like software or business methods, no matter how defined or vaguely defined, or even undefined), they remain what they are regardless of those feelings.
The underlying zeitgeist of the rampant propaganda machine claiming “patents are bad” must be rooted out. There are already other laws on the books aimed at bad players. It is time to stop the demon-1zation of the very vehicle established to reward innovators.
There is a major misstep in the question being pursued at the academic level here.
The very essence of the patent system in the Quid Pro Quo is missing from the discussion.
Once the Quid Pro Quo is properly recognized, and the value and trade inherent in the deal is recognized, then one needs to look at the fact that LEGALLY the property that is the patent grant is deemed to be personal property.
Would we (the “we” being us here in the United States) ever deem that any other personal property would be left up to the courts to decide for us how to use, and that decision being based in part on who the owner of the property is?
Now take these questions at the “top level.”
In other words, do not attempt to dilute them with comparisons to subsets of personal property that may have legally recognized dangerous effects (i.e., explosives and controlled substances). No matter what your feelings are to patents (or to categories of patents, like software or business methods, no matter how defined or vaguely defined, or even undefined), they remain what they are regardless of those feelings.
The underlying zeitgeist of the rampant propaganda machine claiming “patents are bad” must be rooted out. There are already other laws on the books aimed at bad players. It is time to stop the demon-ization of the very vehicle established to reward innovators.
I want to talk about “innocent” infringement of a patent. Does it exist? And can it fend off the grant of a final injunction to cease the infringing acts?
I suppose that it is not only lay persons who fail to see that patents are inherently and fundamentally different from copyright in that infringing copyright necessarily involves copying whereas patent infringers are not necessarily copiers. It is also some commenters here too.
Of course, you can’t infringe a patent not yet issued. The minute it issues though, you can read the claims and form a view whether or not you infringe.
But might there nevertheless be an “excuse” for not knowing about the patent? And if so, can it be enough to fend off i) damages or ii) an injunction? In Europe it can fend off damages but not an injunction. How is it in the USA?
Excuses for not knowing do not – and cannot – be confused with ANY sense of innocent infringement.
There simply is no such thing.
OK, not “innocent” then. But what is it then if it’s not deliberate, not “wilful”? Is it said to be accidental? Unintended? If it’s not wilful, what is it called?
And if it is accidental, as opposed to wilful, can that fend off an injunction? Or damages?
BTW, anon, can you ease off on the “simply” pedal? Everything to you is “simply” and has to be dismissed as such. Many of the things you dismiss as simple simply aren’t.
It is called strict liability – the item that you are attempting to reach is simply not there.
…and sorry if it hurts your feelings, MaxDrei, but the word “simply” IS appropriate.
I’m interested in situations where strict liability is somehow tempered by some inadequacy of public notice requirements.
One example might be the quantum of damages awarded in an infringement action, when no infringed claim of the issued patent can withstand attacks on its validity, the claim owner amends and then asserts the amended claim.
Or when the claims of a duly issued patent are not wide enough until the issue of a duly widened re-issue patent. Can the owner of the re-issue recover damages for all infringing acts back to the date of issue of the re-issue, earlier than that, or only later?
I’m curious because patent law in Europe contemplates “compensation” ie damages, going back as far as the 18 month A publication date of the patent application, as filed but not yet issued.
From the A publication date, of course, the public is on notice of what acts are liable to infringe when the patent grants. Designing around starts right there then chaps, OK?
And that prompting is good. It is another example of promoting, indeed accelerating, progress in the useful arts.
One does what one can, with a patent statute, to promote the progress. But a patent statute can’t do it all. If a society is basically innovation-averse, the best patent statute in the world can’t turn it into an innovation world champion.
Your interest confuses infringement and possible redress for that infringement.
I hope that you realize that such is the ploy of the efficient infringer lobby.
“ If a society is basically innovation-averse,”
Make it painful then to choose to ignore the innovation of others.
That is why the best patent systems use both carrots and sticks.
Carrots for the innovators.
Sticks for those innovation-averse folk who nonetheless want what the innovators do.
Commenting specifically on natural rights in relation to copyright. I think the following story is on point.
Half a century ago, Jacqueline Kennedy Onassis corresponded at length, before her marriage, with a priest at a Catholic seminary. Nearly three years ago the seminary took note of the fact that they were in possession of the (physical) letters, arranged for choice extracts to be published in a national newspaper, and, in order to raise funds, made plans to sell the letters at auction, expecting to raise in excess of one million euro.
The story seems incredible to me. What were they thinking of?
The upshot was that the Kennedy family got wind of this, and ultimately it seems that the (former) seminary withdrew the letters from auction and agreed to return the letters to the Kennedy family.
If something like that happened in the author’s lifetime? Suppose that I had put down my thoughts on paper, sent them off by snail mail, and the recipient argued that, because they had possession of the physical paper, they were entitled to publish my thoughts expressed therein to the world!
This surely leads to a natural law perspective on copyright, that is independent of the obvious fact that if money could not be made from selling books, those books would not be written in the first place.
The basis for the plot of Coming through the Rye, link to imdb.com, where Salinger denied all comers permission to turn his book into a play or movie.
I will attempt to begin on topic.
I note that the results attempt to measure people’s conceptualization of ‘IP rights’. I would suggest that one could, in more refined research should, distinguish copyrights and patents. My understanding of applicable law is that infringement of copyright requires copying of an infringed work. (If all those monkey’s had succeeded in typing out the complete works of Shakespeare, whilst those works were in copyright, they could have published the complete works without infringement of copyright.) Even if, in practice, such independent creation does not happen, nevertheless this is a considerable difference in principle from patent law, where one can innocently infringe without knowledge of the patented article or method. Therefore I would see a combination of natural law and incentive in my attitudes to copyright law, whereas I would apply a pure incentive or (in Prof. Adam Mossoff’s word) Jeffersonian approach in the context of patent law. To me it is wrong to argue that someone else who discovers an invention and patents for twenty years takes nothing from me. I would argue that the patentee deprives me of the possibility of coming up independently with an embodiment of the patent a year later and either enjoying its use without license for nineteen years or else dedicating the personal discovery to the public.
I think of two cities on the coast, separated by the estuary of a wide river. To travel by land without crossing the river might entail a journey of 100 miles. The state could adopt a policy whereby the first business ready to plan or construct a bridge over the river is awarded a 20 year monopoly preventing anyone else crossing the river, and then can build a turnpike road incorporating the bridge, and collect the tolls. Or else the state could allocate money from general taxation, pay a construction firm to build the bridge and road, and allow the public to travel over the bridge without tolls. It maybe that the bridge would materialize two years later than if it had been built by the would-be turnpike operator, but the public would have the toll-free use 18 years earlier than they would otherwise have done.
Maybe in some situations, it would be better public policy to go for the turnpike option, and in others to go for the publicly-funded construction project.
But it certainly would not seem to me good policy to institute a general law to the effect that any would-be turnpike operator who builds a bridge over a river (no matter how broad or narrow) is entitled to exclude others from building bridges over the same river and charge whatever tolls they like. One ought at least to adopt a policy that turnpike operators can only take advantage of the law for rivers that are sufficiently wide, or that run in sufficiently deep and problematic canyons (i.e., corresponding to a policy that a claimant is only an inventor entitled to benefit under the patent laws if what is claimed displays sufficient in the way of genuine invention).
“where one can innocently infringe without knowledge of the patented article or method.”
No – absolutlely incorrect.
Infringementnisnanstrict liability offense and requires NO such mental state aspect (level of damages happens to be a different legal animal here)
Further, the difference is more in line with the the “what” that is being protected:
Copyright: expression
Patent: utility
In the US, the protection of expression must cohabitate with the Freedom of Expression as embodied in the First Amendment.
(Separately, I still await Malcolm’s cognitive legal explanation of how the First Amendment intersects with that utility-protecting nature of patents)
Careless language on my part. If I get the terminology correct, scienter is not a prerequisite for infringement. If unknown to me someone in a town a hundred miles away has patented a method of (say) felting hats, and I, without knowledge of this, independently come up with the same method, and put it into practice, then I infringe.
This to me would be “innocent infringement” in moral terms, because I would have no way of knowing that someone else before me had come up with, and patented, my method of felting hats.
Again, no.
The attempt to include “morality” is simply a non-starter.
“Innocence” is an efficient infringer gambit.
Which brings me neatly to another matter that I would take, rightly or wrongly to be associated with a natural law approach, namely the argument in the following paper:
Ted Sichelman, “Patent Law Revisionism at the Supreme Court?”, Loyola University Chicago Law Journal 307-343 (2013).
link to www7.luc.edu
There is an associated SCOTUS brief here:
link to americanbar.org
The cases that Prof. Sichelman calls out are Aro Manufacturing Company v. Convertible Top Replacement Company (1964) and Global-Tech Appliances v. SEB (2011).
Prof. Rantanan discussed Global-Tech on Patently-O here:
link to patentlyo.com
It is interesting to note that Sichelman et al. in the above brief and paper discuss in particular American Cotton-Tie (1882) and A.B. [short for Richard] (1912), which are particularly relevant to the doctrine of exhaustion.
Then a short paragraph in the Sichelman brief from A.B. [Richard] to Mercoid:
“Following A.B. [Richard], in a line of cases culminating with Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661 (1944), 15 this Court effectively narrowed the applicability of indirect infringement by holding that the sale of unpatented material cannot constitute contributory infringement, even “where the unpatented material or device is itself an integral part of the structure embodying the patent,” because to allow as much would run afoul of the antitrust laws. (Id. at 665-66.)
Sichelman and the other 5 professors signing his brief then comes on the legislative history of the 1952 act (such as it is).
II.B of the Sichelman brief: “Section 271(b) is ambiguous on its face and must be interpreted in View of the Legislative History and Historical Context…”
I would imagine that Justices Scalia and Thomas in particular would differ. Only “those who find legislative history useful” would consider deferring to this assertion.
The brief explains that the CAFC failed to adhere to the alleged imperative, but instead looked to Grokster.
“C. This Court’s Holding in Aro Convertible II regarding 271(c) does not affect the Interpretation of 271(b).”
Nevertheless, under this heading, Sichelman et al. urge that
“For the reasons stated by the four dissenting Justices, we urge this Court to overrule the incorrect holding in Aro II—and this Court may do so because it would necessarily resolve the issue in this case.”
In the event, SCOTUS did not bite, hence Sichelman’s outrage in the Loyola University Chicago Law Review article linked to above.
Curiously the SCOTUS brief does not set out the details of the claimed argument from legislative history.
Sichelman’s argument is that the witness testimony of Giles S. Rich before the House Judiciary Committee on what he and the bar associations he consulted with should have been regarded as dispositive with regard to the interpretation of the indirect infringement provisions ” because Rich “was one of the primary drafters of the Patent Act of 1952”.
(Where have I heard this before?)
But there is no sense in which Giles S. Rich was a legislator. Why should the witness testimony of interested parties proposing draft legislation be given any significant weight? In particular, unlike the reports, I would presume that the witness testimony was not before the House and the Senate, unless included in those reports, and therefore would not have influenced the votes of the true legislators (or at least the presumably small number who were actually present and approved the legislation with minimal debate).
(I recall that, in the brief on the unsuccessful petion for certiorari in the Classen Immunotherapies case, the brief for the Solicitor General characterized as clear error Judge Rader’s position that, as he personally had been involved behind the scenes in the passage of the Hatch-Waxman act, therefore his recollections of what went on was dispositive, and in particular trumped any argument attempting interpretation of the plain words of the statute.)
In conclusion I would presume that the the fact that Prof. Sichelman argues so passionately that SCOTUS was way out of line in ignoring arguments that scienter was not required for indirect infringements indicates strong adherence to an underlying natural law approach to the principles of patent law.
Too many weeds there DP for your eventual point to shine through.
Please write shorter when you have more time.
This is intended as a response to Anon 8.1.2.1.1.1, but I am formally replying to the grandparent post to avoid unnecessary column-narrowing.
Why the long post at 8.1.2.1.1? I have been lurking on this blog since In re Bilski, but have only in recent weeks started posting regularly. As a result, there is a lot backed up that I have not yet got round to trying to express.
Sometimes, at least for me, a query like 8.1.2.1 can release a long post that was contemplated some time earlier but never found its way through my fingers.
===
Coming closer to the motivation for earlier posts.
The article by Prof. Mandel linked to in the main post identifies four basic theories that might underlie how people conceptualize the purposes of copyright and patent law. Those theories are labelled Plagiarism, Incentives, Natural Rights, Expressive. Prof. Mandel’s article summarizes result of research intended to quantify adherence to these theories both amongst lay people and also amongst IP professionals.
Questions prompted for me: (a) where do I fit in? (b) how are these approaches manifested in comments by regular posters on Patently-O? (c) how are these approaches manifested in law review articles and briefs authored by academic law professors?
Professor Mossoff, as discussed earlier, seems to align directly with the natural law approach, and this is probably why I instinctively disagree with the majority of what I have read of his writings.
With regard to patent law, I would align most closely with the incentives or (in Prof. Mossoff’s terminology Jeffersonian approach.
And, having read through one of his law review articles, I was immediately prompted to attempt to refute the basis of some of his key points, if only to get the attempted refutation off my chest, hence 8.2.1. (whose motivation is unlikely to be apparent to anyone who has not worked through that article of Prof. Mossoff to which I have linked).
Who else amongst academic law professors would I think also aligns with the natural law approach? Well, based on various reading, including the Impression Products v. Lexmark material on Patently-O, Prof. Sichelman came to mind, and, prompted in part by 8.1.2.1, his attitudes to scienter in indirect infringement. The long posting 8.1.2.1.1 was prompted by a desire to get off my chest some thoughts on his views, and also suggest that they aligned also with a natural law approach.
===
So, coming to Prof. Sichelman’s strongly argued concerns. He considers two decisions of SCOTUS regarding indirect infringement to be clear error. One of those is Aro Manufacturing, which relates to 271(c). Basically whoever does stuff involving a component of a patented invention “knowing the same to be especially made or especially adapted for use in an infringement of such patent”.
Question: does the alleged indirect infringer have to know that the supplied component will infringe a patent if used for the purposes for which it was sold? Or is it sufficient for him to be aware that it will be used as a component of something that, possibly unknown to the supplier, happens to be subject matter for a valid patent? SCOTUS, in a fractured decision with three dissenting, determined that the supplier of the component had to have knowledge that the resultant item would infringe.
Prof. Sichelman devoted his law review article to an argument that this SCOTUS case and a later case were wrongly decided.
I suggested in 8.1.2.1.1 that this was a manifestation of a natural law approach. But, having started there, I could not stop there, but went on to get off my chest some pent-up comments relating to the argument from the legislative history of the 1952 act.
Again, please take your time and write shorter.
The Wall of Gurge (pent up or otherwise) is simply too disparate and jumbled to effectively respond to.
As to “column narrowing,” I understand the intent, but given the already present self-inflected difficulty to respond, I would gladly take the more narrow columns.
And, addressing directly the point at issue in 8.1.2.1.
I personally would not assent to an argument that someone who had a useful idea before me has a natural right or civil right to a monopoly on exploitation of that idea. Therefore I would regard patent monopolies as grants of rights in the nature of exclusive rights (i.e. rights that operate by conferring the standing to exclude others from making, using, selling etc. in accordance with the law and decisions of the courts with regard to granting of injunctions etc.) for limited periods, for the purpose of furthering industrial development, the development of pharmaceuticals etc. I would nevertheless argue that is is appropriate that subject-matter eligibility and requirements for invention be regulated by law to ensure that society benefits from the granting of these limited monopolies.
I therefore would not consider that I had moral culpability for infringing patents that I am unaware of, and therefore any claim for payment for unknowing infringement would be an imposition.
DP, how do you respond to the blunt point that if you are “unaware” of a patent, you have only yourself to blame? You see, patents are published and eminently searchable. Innovative companies routinely monitor the stream of emerging patent publications to ensure that they do not waste capital on innovations already patented by another.
However, for an example of a patent statute which tempers that bluntness with a “known or ought to have known” provision, see Section 60(2) of the current UK Patents Act, which addresses the issue of “contributory infringement” (in which you yourself are not the direct infringer but where you make a contribution that enables another to infringe the claim directly), and which I reproduce below:
(2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.
Conversely, in the “direct infringement” provision of Section 60(1) there is of course no such departure from strict liability for infringement, whether or not you were “unaware” of the published patent.
On “moral culpability” then, does that nuanced UK law work for you?
As to strict imposition of patentability and eligibility requirements, I would think nobody here disputes the need for that. Progress is hindered rather than promoted, when owners of bad patents and their legal teams can run a business model that relies upon holding entire industries to ransom. Worse, such activities bring the patent system into disrepute.
Contributory is a different animal (even under US jurisprudence).
Thanks for the correction.
Following on from 8.1.2.1.1.3.4.
It occurs to me. The US law lists (271) what activities “infringe the patent”, an then in (283) states that courts “may grant injunctions in accordance with the principles of equity”.
By contrast, the law in this jurisdiction (dating from 1992) avoids the language of “infringement” and “injunctions” at this point, instead incorporating into the statute a explicit right to exclude, sidestepping the question of whether principles of Equity apply.
If the US patent bar don’t like eBay, maybe they could lobby to revise the statute. After all SCOTUS did not decide the statutory wording.
There is a later chapter on “Infringement”, which enables injunctions to enjoin defendants from “apprehended” acts of infringement.
DP,
As has been pointed out previously, the law as written by our Congress expressly shares authority in a limited sense (and it must be limited to comply with our separation of powers doctrine) with the judicial branch in section 283.
You should note (as should everyone else involved in the patent eligibility discussions) that NO such sharing was envisioned by Congress in the writings of 101/102/103/112.
Given as the Court has not let the actual words of Congress stop them in that area, why would you think that the Congress redrafting around any (perceived) limitations of eBay be advisable?
Replying to MaxDrei at 8.1.2.1.1.3.1.
At this stage, I am not yet ready to answer specifically with respect to current UK law. Oddly I am far more familiar with US Law. I do have live bookmarks for the IPKat blog, but US patent law seems that much more interesting right now.
Also I am more familiar with UK (and related) copyright law, as, years ago, I considered it necessary to understand it in order to be absolutely clear as to which historical material is or is not in the public domain, and the provisions regarding copyright on original works, on “typographical arrangements”, “publication right” (for publishing for the first time unpublished historical material) etc. And whenever the law in my jurisdiction (which incorporates analogous principles) has been updated, I have followed the parliamentary debates and committee proceedings to see what is afoot.
At the moment my thoughts are occupied with English patent law in the 1785-1816 period. I would also look to the European Patent Convention.
In my opinion, the patent laws on their face should be designed to ensure that patent infringement does not result from the activities of “ordinary people” in their private lives, working around the home, typing away at computers in their homes, small businesses such as commodity retailers, coffee shops making WiFi services available to their customers, those automating office procedures within their own businesses with no thought offering any computer-implemented products for sale, those who, in the home and in the workplace, scan documents to email because it is the “obvious” thing to do. To me, an attitude that “whether you infringe or not is unimportant, because nobody is going to sue you” is unacceptable.
In the modern European context, I would look to the European Patent Convention, and that the requirements that a patent-eligible invention be “susceptible of industrial application”, “involve an inventive step” and satisfy the various per se subject-matter requirements protect the public interest, and help to restrict possibilities of patent infringement to industries where patents are commonplace and businesses can be expected to inform themselves of patents that read on their activities.
And, from English patent law around the time of the Industrial Revolution (and the US Founding Fathers), I am picking up strongly that English judges explicitly adopted the doctrine that a patent was a bargain between the patentee and the public. I note, for example, that those judges casually, frequently and freely used the verb “to pirate” in relation to infringers. On the other side, they enforced very rigorously enablement and best mode requirements, on the grounds that those inventors who failed to make a full, accurate and unambiguous dislosure of their invention to the public were defrauding the public and not keeping to their side of the bargain.
To conclude, it seems to me that US norms current at the CAFC and USPTO prior to in Re Bilski departed far from the principles implied by the above, but that the Roberts Court has been mindful of the balance between the rights of patentees and the public interest. If the patent system seeks to ensure that granted patents are “good” patents, then the public on their side can be expected to respect rights of patentees and take precautions against infringement.
Your last paragraph is actually 180 degrees off from how our law is written (and too warmly embraces a judicial re-writing of that law based on a non-legislator’s desired Ends).
A shorter response to MaxDrei at 8.1.2.1.1.3.1 [that might eventually become visible]
The “wilful blindness” standard for indirect infringement adopted by SCOTUS in Global-Tech seems sensible. (Lone dissent from Justice Kennedy.)
Prof. Rantanan’s write-up is here.
link to patentlyo.com
It seems to me that the UK law you quote has a similar thrust, but, without a actual case to exemplify its application it is difficult to pass judgement.
No need to “pass judgement”, DP. Actual cases are rare as hen’s teeth because in the UK it is rarely a business imperative to go all the way to trial against an indirect infringer. All I was trying to do was to tease out examples where the principle of “strict liability” is qualified/shaved/diminished/reduced from its absolute and simple severity.
Another way to crop it back is eBay. Just decline to award injunctive relief. But that to me seems to conflict with the fundamental idea that the grant of a patent is a grant of a permit to assert a “right to exclude”, a right which differs fundamentally from copyright in that it is not limited to restraint of copyists.
Max, put someone on notice that what they are doing is contributory or inducement infringement, and, if they refuse to stop, I do not understand why there should not be an injunction.
Ned, I regret that you have understood my comment other than as I intended. I was using the British national contributory infringement provision as an example of a situation where patentee might not be able to recover damages for all historical infringing acts, all the way back to the A publication date of the patent application that gave rise to the patent being asserted against the party contributing to the direct infringement.
I’m curious though. How did my commenting give you the impression that Europe contemplates witholding (in any circumstances) the relief of a final injunction to restrain in future from infringing acts?
Max, I do not believe I intended to speak about EPO law, but US law. If one notices someone, they refuse to stop, I simply cannot understand why one should not be able to get an injunction.
Further comment relating to MaxDrei at 8.1.2.1.1.3.1.
[N.B., my previous two replies do not appear in order of posting as my first attempt was held up “awaiting moderation”.]
By way of comparison, here is the law on “contributory infringement” in my jurisdiction. Not identically worded to the UK provision, but has phrases in it that you would recognize. It is followed by an exception for “staple commercial products”:
A patent while it is in force shall also confer on its proprietor the right to prevent all third parties not having his consent from supplying or offering to supply in the State a person, other than a party entitled to exploit the patented invention, with means, relating to an essential element of that invention, for putting it into effect therein, when the third party knows, or it is obvious in the circumstances to a reasonable person, that the said means are suitable and intended for putting that invention into effect.
I will also add, ignorance is also not a defense. Patents are public documents.
And accessible these days. If I type into the search bar ‘us ‘ followed by a seven digit number, the search engine knows what I am after!
Say you were in Manchester in the early decades of the 19th century, before the coming of steam railroads. To see what patents you might be infringing, you would need to travel up to London, hundreds of miles away (by horse-drawn coach), visit the Rolls Chapel office. The clerks there would allow you to consult the patent rolls, for payment of the appropriate fee, but you were forbidden to take notes. Thus you would have to return day after day. For a manufacturer starting up in business, this might be considered a normal part of getting started. But for a private individual…
Or say you had settled in North Platte, Nebraska in the mid 19th century? How far would you need to travel to consult those “public records”? This might be acceptable for those setting up a manufacturing business. But there is a limit to the distance that ordinary people could be expected to travel to consult “public documents” to discover that someone else has a monopoly on a method of teaching languages that associates physical props like squares, balls, triangles etc. with nouns, verbs, adjectives, etc.
See this issued patent:
link to google.com
“because I would have no way of knowing that someone else before me had come up with, and patented, my method of felting hats.”
This would be an incorrect statement.
Patents are published.
Quite in fact, one aspect of improving the system and meeting the stated goal of the patent system would be to put some teeth in the fact that patents are published.
I have often reminded people here that one of the meanings of the word “promote” as intended by our Constitution is the advertisement sense of the word (promotion).
The Office and the Congress should aim at more fully making that part of the system work better, and more effectively, and as Teddy Roosevelt noted, one way to be effective is speak softly and carry a big stick.
When Big Corp gets to the point of actively telling its workers that they may not touch or even look at published patents (a fact known to me from personal experience), AND those very same players are actively seeking to weaken the patent system in order to pursue a policy of efficient infringement, then it is high time that we stop and think.
We need to stop weakening and removing the stick from the carrot and stick approach.
It is NOT that there are software and business method patents that weaken the respect for the patent system. Instead it is the propaganda that software and business method patents “are bad” that weakens the respect for the patent system.
So, I want to come on to link to two papers on the natural law theory, and discuss the second in more detail. The first is more straightforward:
Eric Maughan, “Protecting the Rights of Inventors: How Natural Law Analysis should influence the Injunction Analysis in Infringement Cases” The Georgetown Journal of Law and Public Policy Vol. 10, 215-238 (2012).
link to law.georgetown.edu
This provides a clear and unambiguous discussion of the principles of the natural law theory, and their application in the context of NPEs and eBay v. MercExchange.
Moving on,
Adam Mossoff, “Who cares what Thomas Jefferson thought about Patents – Reevaluating the Patent Privilege in Historical Context”, Cornell Law Review, Vol 92, 953-1012 (2007)
link to scholarship.law.cornell.edu
Whenever a patent case comes up at SCOTUS, I generally instinctively support one party, and there is usually an amicus brief by Prof. Adam Mossoff and a certain number of other law professors on the other.
I have in mind discussing further the question of what is to be understood (in historical context) by the word “privilege”, But it seems convenient to post this stage and then comment.
Prof. Mossoff writes:
“In ordinary, day-to-day usage, a privilege is a specially conferred grant in which its recipient cannot claim any moral or legal entitlement to the subject matter of the grant.”
Mossoff argues that, at least in legal terminology “privileges and immunities” equate to “civil and natural rights” respectively.
Maybe there are casual uses that conform to this definition, but, seeking to formulate what I understand by the term privilege, I come up with the following:
“Something to be enjoyed, whether resulting from a gift, grant, legal right or custom, that others have no opportunity or entitlement to enjoy”.
The first four words of this definition are awkward, but the words that, to me, naturally fit there are “A privilege”.
Some examples.
Students and tourists at an Oxford college must walk on the made-up paths around the quadrangles, but Fellows enjoy the privilege of walking across the grass.
Those who become Friends of the Opera House enjoy the privilege of priority booking.
(Back to the eighteenth and early nineteenth century.) When going down to dinner, the lady of the highest rank enjoys the privilege of leading the way with the host.
The sons of an Earl should be addressed as “Honourable” (e.g., the Hon. Giles Cadogan), and the daughters of an Earl should be addressed with the courtesy title of Lady, but this privilege is not extended to the sons and daughters of Barons and Viscounts.
(As they would have seen it in the 18th century) English gentlemen enjoy privileges denied to the serfs of Russia.
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Unlike the above made up quotes, here is a quote from a real book:
“The end of the thirteenth century and the beginning of the fourteenth century was such a time throughout Western Europe. The grants of privilege to alien merchants by Henry III and Edward I and the similar grants to English merchants by the Netherlands rulers have already been dealt with in so far as the led to the growth of a staple system.” (The Staple Court Books of Bristol, Volume 5)
—
Now checking in Dr. Johnson’s dictionary (1785 edition) we find two meanings:
1: Peculiar advantage
“Here is my sword. Behold it is the privilege of mine honours, my oath and my profession.” Shakespeare
[etc.]
2: Immunity, a right not universal
“I beg the ancient privilege of Athens.” Shakespeare
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Finally, on a lighter note, here are three verses from the first canto of Don Juan by Lord Byron, which mentions a privilege. (Well, a few weeks ago, Greg DeLassus quoted here from a short story by Saki.)
Don Alfonso is getting on in years. He suspects that his beautiful young wife, Donna Julia is in bed with the teenager Don Juan. He bursts into her bedroom with servants, whom he orders to ransack the room, and in particular check under the bed.
During this inquisition Julia’s tongue
Was not asleep–“Yes, search and search,” she cried,
“Insult on insult heap, and wrong on wrong!
It was for this that I became a bride!
For this in silence I have suffered long
A husband like Alfonso at my side;
But now I’ll bear no more, nor here remain,
If there be law or lawyers in all Spain.
CXLVI.
“Yes, Don Alfonso! husband now no more,
If ever you indeed deserved the name,
Is ‘t worthy of your years?–you have threescore–
Fifty, or sixty, it is all the same–
Is ‘t wise or fitting, causeless to explore
For facts against a virtuous woman’s fame?
Ungrateful, perjured, barbarous Don Alfonso,
How dare you think your lady would go on so?
CXLVII.
“Is it for this I have disdained to hold
The common privileges of my sex?
That I have chosen a confessor so old
And deaf, that any other it would vex,
And never once he has had cause to scold,
But found my very innocence perplex
So much, he always doubted I was married–
How sorry you will be when I’ve miscarried!
One way you can tell how biased the academics are is that they never speak about the gap between the effort to do something for only yourself (your saved work) vs. the work to invent.
Most inventions are not worth doing if it is only for you. The time or money saved is not greater than the cost of inventing. But, with a patent then the time saving can be extended to many people and then the time to invent is less than the time saved — by far.
But, note that this very important feature of the patent system is never discussed. And, the fact that patent filings have been decreasing significantly if normalized is also not discussed.
I am not sure that the normalizing aspect is even appreciated.
Often (far too often) the context that such normalization would provide is either just not appreciated (or even worse, is appreciated but avoided because the desired narrative is just not supported with that context).
And even worse – those (like you and I) that note that context is important are (attempted) to be put down with baseless ad hominem and the attempt to characterize us as being (somehow) too pro-patent.
Anyone realizing the value of patents of course would realize that there is no such thing as being “too” pro-patent.
The purpose is stated in our US Constitution: “to promote the Progress of Science and useful Arts”. However, I find the author’s expansion on this point in his introduction to be slightly askew, at least as far as patents for invention are concerned, where he states: “The rationale for the incentive theory of IP law is that providing authors and inventors with the potential for IP rights will induce them to engage in greater innovative activity than they otherwise would, from the creation to the production to the commercialization of intellectual works.”
Authors and inventors create whether there are IP rights or not, and I believe at about the same rate. What actually promotes the “progress”, is not the creation of new works per se, but the rather the “sharing” of such creation with the rest of society. IP rights incentivize that sharing; it is a tradeoff between patents (and the consequent publication of how to make and use) and what would otherwise be kept as trade secrets. Perhaps there is a stronger link in copywritable works between IP rights and the actual creative authorship of such works, but even then a great part of the incentive would seem to be derived from the financial enabling of their “publication”, rather than the creation itself.
I know I only posted this less than a week ago (Answering the call.. 10.3). But it seemed to me that the value of getting the stuff out was to show, in the words of people of the time,
This is John Davies, discussing this aspect of the “incentive theory” in 1816, and I believe it is on point here:
“It is well known that the most useful discoveries that have been made in the arts and manufactures of the country have not been made by speculative and recluse philosophers in their closets; but be ingenious mechanics, practically acquainted with the subject matter of these discoveries. It therefore follows, that those persons whose only means of getting their subsistence is by the exercise of their own labour, skill, and ingenuity, must necessarily be prompted by an expectation of advantage to themselves, to spend much time and labour, and incur the expense of experiments in stepping out of the beaten track, and endeavouring to bring forward any great or essential improvement in the branch in which they are concerned. Such improvements frequently require not only ingenuity, but much thought, long attention, great labour, and repeated experiments; not only requiring labour, but attended with considerable expense. It could not therefore be expected, that the most ingenious man of this description should sacrifice their time and labour in seeking improvements which, although of great benefit to their country, would be ruinous to themselves, unless some mode was devised to secure to them an advantage from their invention.”
I would add that the opening remarks of the procecuting counsel and the judge in The King against Arkwright (1775) emphasized the necessity that the specification should be sufficiently adequate and exact to enable the PHOSITA to construct the invention once the patent had expired.
It might be interesting to discover how closely, if at all, Jefferson and the other founding fathers were following these English cases.
How could Jefferson not have known about what was going on in the Arkwright cases:
link to books.google.ie
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Also a web search turned up some Jefferson quotes here, developing ideas for the Bill of Rights on the website of the Family Guardian, a “nonprofit Christian religious ministry”. Near the top of the page the quotes show that there should be “restrictions against monopolies”, but further down the page (Thomas Jefferson to James Madison, 1789, ME 7:450)
“Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding — years, but for no longer term, and no other purpose.”
link to famguardian.org
Mark, Authors and inventors create whether there are IP rights or not, and I believe at about the same rate. What actually promotes the “progress”, is not the creation of new works per se, but the rather the “sharing” of such creation with the rest of society.
May I ask whether you graduated from the University California Berkeley and whether you routinely expressed your political views by dressing up in ninja outfits and assaulting the police?
I had to laugh out loud (literally) when I read your post, Ned.
Now if you can work into the meme President Lincoln slaying vampires while dressed as a ninja, your picture would be complete.
Interestingly enough Ned, you are partly correct; but only partly. I did attend UC Berkeley as an undergraduate. But I never dressed up in any ninja outfit or assaulted the police (very bad and fruitless!) – those would be the more idealist students in the poli sci department and the like, plus local hangers-on who aren’t really students. Students in the physics department like myself were very much more low key. Instead, I express my political views mainly by writing to my congressperson and other representives, voting in elections, and donating money to certain NGOs.
Was good to see that UC Berkeley is upholding its stellar reputation for providing a campus where every view is welcome and may be safely expressed.
LOL!
Thanks for pointing us to this work and paper. Firms up what I see in the lay community on a daily basis.
“Law individuals, on the other hand, more often indicated that IP rights are designed to prevent or sanction plagiarism. ”
I know we’re not supposed to bug you about typos but “Law individuals” vice “Lay individuals” is apt to cause confusion.
Also, use of a word having nearly antonymic alternative meanings, in this particular case is also prone to confusion (“prevent or sanction plagiarism”).
Orientation 1:
What are individual rights for?
They allow for and incentivize production enabling redistribution for the good of the public and the State.
Rights are the means to individuals action which action is the means for the ultimate end the State and the collective.
Orientation 2:
What is the State for?
It protects rights of individuals so that they can live their lives peacefully as they see fit.
The State is the means to protect individual rights which by their protection are the means to the life and pursuit of happiness of every individual.
Make your choice and live with it.
Note: Please delete erroneous duplicate
Orientation 1:
What are individual rights for?
They allow for and incentivize production enabling redistribution for the good of the public and the State.
We see nonsense such as this when the socialists took power during the French Revolution, set bread and coal prices low enough that the people of Paris could better afford them, but soon found that the bakers and coal distributors soon could no longer afford to stay in business because the cost of wheat from the farmers and coal from the mines exceeded the prices they could receive. The solution of the French government was to send out acquisition parties to take the wheat and coal from those who produced in the fields and mines, with little or no compensation, and essentially give it to the French bakeries and coal distribution houses, for redistribution to the people.
A similar scenario is described in Shakespeare’s play Coriolanus about a real event that took place during the early days of the Roman Republic.
Such or price controls and redistribution philosophies. Someone in the food chain gets royally shafted.
Orientation 1:
What are individual rights for?
They allow for and incentivize production enabling redistribution for the good of the public and the State.
Rights are the means to individuals action which action is the means for the ultimate end the State and the collective.
Orientation 2:
What is the State for?
It protects rights of individuals so that they can live their lives peacefully as they see fit.
The State is the means to protect individual rights which by their protection are the means to the life and pursuit of happiness of every individual.
Make your choice and live with it.
I may comment more fully in a few hours, if I find anything that strikes me. But I have just come across this on page 665.
“The public perception of IP law also reflects the mindset of most jurors deciding IP cases. For example, in the initial U.S. trial in the ongoing Apple Inc. v. Samsung Electronics Co., Ltd. litigation, it appears
that the jury foreman, who is widely recognized to have played a lead role
in the jury deliberation, did not accurately understand patent law, even after the judge’s instruction.”
It is nice to see this in the academic literature. At the time I was following proceedings in that case in fair detail, as all the motions, briefs, transcripts, opinions, etc. were being posted on another website, now inactive (or at least operating in “stealth mode” with regard to new documents relating to one particular case, but unfortunately not in others).
It seemed to me at the time that the jury foreman’s public comments about the law of the case did not accord with what I understood on the basis of the case documents (and, in particular, the jury instructions).
In particular, in the matter of what the legal requirements are for infringement under the doctrine of equivalents.
(Aside, if I am not mistaken, Ned Heller’s place of business is near the Courthouse.)
If by “Courthouse,” you mean the Supreme Court, you should know that Ned resides in California.
I was thinking of San Jose.
Indelible association of ideas:
Cupertino OR San Jose => Judge Lucy H. Koh
For others, the right hand side might be Apple.
Ah, thanks.
By way of reminder, here is the full text of the BBC’s interview with the jury foreman in the first of the Apple v. Samsung trials.
link to bbc.com
In particular, the following seems to be an odd test for whether one make of mobile phone infringes a patent embodied in another make of mobile phone on sale a few years before the allegedly infringing phone:
“And in example after example, when we put it to the test, the older prior art was just that. Not that there’s anything [wrong] with older prior art – but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error.
[…]
“Whenever we considered the prior art and we looked at those patents, and specifically the claims that were involved, and the claim limitations that were involved, we had the instruction from the judge who had given us the stipulation of the precedent in the law that for the prior art in this case to negate or invalidate the patent on Apple’s side – that was being involved in the allegation from Samsung that the patent was invalid because of the prior art – we had to establish that number one, the two methods were substantially similar; that the outcome was the same, in other words the functionality was the same, that would be at the 40,000-foot level. But what was key to us, and it was a very important piece, is that the stipulation in the law, they had to be interchangeable.
“And so consequently, when we looked at the source code – I was able to read source code – I showed the jurors that the two methods in software were not the same, nor could they be interchangeable because the hardware that was involved between the old processor and the new processor – you couldn’t load the new software methodology in the old system and expect that it was going to work, and the converse of that was true.”
Here is Samsung’s US 7,577,460 patent. There is nothing about software code in the claim here.
link to google.com
For this ‘460 patent, the jury had to determine both literal infringement and infringement under the doctrine of equivalents. This is the claim element where the doctrine of equivalents was invoked:
“sequentially displaying other images stored in a memory through the use of scroll keys;”
Samsung argued that tapping away at scroll icons on the Apple phone would be an equivalent of this claim limitation.
Well Distant, the “substantial identity” test has was prevailing test in both England and the United States in 1800s and appears to have continued in England. At that time, we actually had to submit models of the invention to the patent office so that people might compare their machine to the machine in the patent office.
Whether the two devices are the same is an antiquated test in America. I wonder whether it is in England given what the juror said.
“Mandel also noted a severe lack-of-knowledge of US adults regarding intellectual property rights”
I wonder how examiners would fare….
Well, they’re not lawlyers. You can’t expect them to understand the law.
AAA JJ,
But they are not lay people either. And whether or not they do understand the law, they are responsible for examination of applications TO the law.
Whether or not the “what for” is – or even should be – a matter of concern in the process of obtaining said rights, is, of course, a decidedly different question.
That being said, those with less understanding do tend to be the same ones more susceptible to propaganda, which of course is one of the reasons why this “ecosystem” finds itself (for at least 11 years now 😉 ) subject to copious amounts of propaganda.
I know plenty of lawyers who don’t understand the law. And judges too. Ever hear of a case called Alice?
Ever hear of a case called State Street Bank?
Ever hear of the Act of 1952?
😉