Patently-O Bits and Bytes by Juvan Bonni

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12 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 4

    From Morgan’s cannabinoid press release:

    [T]he Geneva-based International Preliminary Report on Patentability… has indicated a positive finding of patentability, meaning that, in their opinion, Canntab’s formulation is not only patentable but also novel, non-obvious and useful.

    I suppose that this does not really matter to anyone in any meaningful way, but this sentence fairly screams “the author of this press release does not know the first thing about the subject on which s/he is writing.”

    1. 4.1

      I particularly enjoy “not only patentable but also novel… .”

  2. 3

    I am coming around to Professor Chiang’s way of thinking.

    The Constitution does not require alienability.

    The Supreme Court has held that patents are not property rights.

    The Constitution does require “promoting progress in the useful arts” by “securing to the inventor exclusive rights”.

    Our current system has failed catastrophically on this purpose and function.

    Perhaps Chiang has provided a path forward.

    The inventor must have viable exclusive rights to the invention. It is not necessary to transfer that right, as long as he has full control over who uses the invention and how it is used.

    That is all that is needed to promote innovation.

    1. 3.1

      >>Our current system has failed catastrophically on this purpose and function.

      Because you say so? Let’s see. The USA has been the number one inventor of new technologies, which have fueled our economy and protected us in war.

      But, privately while writing a paper, a professor has determined this had nothing to do with patents despite all the evidence saying that patent systems are largely responsible for innovation.

    2. 3.2

      And–everyone should notice that the largest economies in the world all have strong patent systems. Korea, Japan, Germany, U.K., and the USA. China is building one.

      And–everyone should notice that modern innovation came about in conjunction with patents.

      But we have a “professor” that wrote an article in a non-peer reviewed journal where there is zero consequence to unethical conduct by the professor. And the “professor” feels that patents are causing trouble. The “professor” may be getting paid to write this paper too. (Lots of evidence for this has been published in reputable newspapers.)

  3. 2

    Prof. Chiang’s initial premise is that: “patents do not come with a right to productively use some social resource—patent rights consist only of a right to stop others from using the claimed invention. The person who is most able to extract rents with a patent’s veto power is not necessarily the same as the person who will put an invention to its most socially valuable use.” That can hardly be disputed, especially when such a high percentage of patent litigation settlement income has been by PAE patent acquirers who do not invent, make or sell any product asserted to be covered by the subject patents.
    But restraining patent transfers is a highly unlikely political response. Especially if it would economically punish inventive companies, universities and individuals selling or exclusively licensing their patents for income or setting up subsidiaries or spin-offs to develop their inventions. Not even to mention how deeply the doctrine against restraints on alienation of chattels in ingrained in our legal systems.

    1. 2.1

      That can hardly be disputed

      What can be disputed — and should be disputed is the subjective valuation underlying the ASSumed premise.

      Such “give-away” “politically correct” terms such as “rent-seeking” should be noted.

      There is also an UNSTATED premise that “most socially valuable use” is necessarily a “use in commerce of some goods covered by the scope of the property right of the patent.

      This is an artificial and rather unfortunately NON-nuanced view of what the patent right is intended to do.

      This is easily seen by the lack of appropriate “moral correctness” given to the basis of patent power of NOT ONLY being a carrot for the inventor, but critically being a stick for those merely ‘following on.’

      The adage “Necessity is the mother of invention” should be branded onto the hands of these academics who type out the drivel that
      F
      A
      I
      L
      S
      to account for both sides of the patent coin.

      Paul, you come close but MISS in your characterization of:

      But restraining patent transfers is a highly unlikely political response. Especially if it would economically punish inventive companies, universities and individuals selling or exclusively licensing their patents for income or setting up subsidiaries or spin-offs to develop their inventions.

      This is NOT so much a “political response” as it is an appropriate economic one.

      WHAT a chattel is used for runs the subjective evaluation from academics who would (knowingly or unknowingly) insert their own “idealization” into a subjective valuation evaluation. This is especially pernicious when the academic lacks a hands-on (or even well-based theoretical) appreciation of innovation, or innovation history.

      1. 2.1.1

        Indeed.

    2. 2.2

      “The person who is most able to extract rents with a patent’s veto power is not necessarily the same as the person who will put an invention to its most socially valuable use.”

      This sentence is just as much an argument for the right of alienability as against. If—as is surely true—the person who is best able to monitize the patent is not necessarily the same as the one who will put it to its most socially optimal use, it is equally well true that the person who first invents is also not necessarily the one best able to put it to its most socially optimal use. The inventors of great inventions are—by definition—great inventors, but that does not mean that they are also great marketers, or great supply chain logisticians, etc. The ability to alienate a patent is just as likely to encourage as to impede the exploitation of the invention’s highest social value.

      1. 2.2.1

        Shame on you Greg for having such a “Pro-Patent” point of view.

        (where is my “S” sign…)

      2. 2.2.2

        Good point Greg.

  4. 1

    Some serious tripe and massive assuming of one’s own conclusions in the “Academic” writings of both Eisenberg and Chiang.

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