Patently-O Bits and Bytes by Juvan Bonni

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

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    Dr McMahon asks us whether “if a novel being had [something akin to human] agency…[,] to what extent would it be ethically… appropriate to allow patentability of that being? Would this amount to an illegitimate exercise of control… akin to… slavery in the human context?”

    Maybe I am just being dense, but it seems to me that the answer to the latter question is an easy “no.” A patent does not give the patentee the right to sell the patented article (as anyone in the pharma biz knows). It merely gives the patentee the right to stop someone else ftom making the sale. The patent could—in other words—stand as one more (largely superfluous) obstacle to a slave trade, but it could never be a tool for creating a slave trade, or even a slave labor system.

    Nor does the patentee—by virtue of the patent—ipso facto own articles covered by the patent. If Pfizer owns a patent on compound X and Mylan manufactures one ton of X in a Michigan factory, Mylan owns that ton, not Pfizer. Mylan may be obliged—after the fact—to pay a sum of damages to Pfizer for violating the patent, but Pfizer has no ownership claim to the infringing goods.

    So too, if Kortek Industries owned a patent on the manufacture of human-like beings, that would not mean that Kortek owns the beings themselves. Ownership of a patent right and ownership of goods manufactured under such a patent right are two entirely separate questions in the law of every jurisdiction with which I am familiar.

    I cannot understand why anyone would want a patent that covers human-like brings. It seems to me that such a patent would be of no commercial value. Whatever such a patent would achieve, however, it would not be anything akin to slavery.

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    I urge folks to read Danny Crichton’s recent piece for Tech Crunch, Gangster Capitalism. As Mr. Crichton notes

    TikTok’s success is many things, but it is quite frankly just an embarrassment for the United States… It’s a win that you can’t chalk up just to industrial policy. Unlike in semiconductors or other capital-intensive industries where Beijing can offer billions in incentives to spur development, ByteDance builds apps. It distributes them on app stores across the world. It has exactly the same tools available to it that every entrepreneur with an Apple Developer account has access to…

    Development economists like to talk about “catch-up” strategies, tactics that countries can take to avoid the middle income trap and cut the gap between the West and the rest. But what we need now are developed economists to explain America’s “fall behind” strategy. Because we are falling behind, in pretty much everything…

    America is no longer on the leading edge of technology in many key strategic markets. Mainland Chinese companies are globally winning in areas as diverse as 5G and social networks… And the fall-behind strategy continues. Immigration restrictions from an administration hell-bent on destroying the single greatest source of American innovation, coupled with the COVID-19 pandemic, have fused into the largest single drop in international student migration in American history.

    This is an important wake-up call. Patent law is important, to be sure, but not half so important to U.S. innovation as is immigration law. Unless the U.S. reverses course (and quickly) on its recent, wrong-headed immigration restrictions, we bid fair to start falling behind—way behind—other developed economies and quickly.

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      As you yourself point out – this is an example in which immigration does not matter, so NO, Mr. Build a Giant Wooden Horse, patent law — and strong US patent rights are very much more important than this immigration law kick you want to indulge in.

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      Immigration is important. This article is saying no more than I have said many times and recently with 5G where the paid bloggers blew smoke.

      Immigration is important but patents are as well. Venture capital is not as readily available because patents are not viable anymore.

      It is noteworthy that China has strengthened their patents by probably a factor of 10 while the USA has reduced their patents by about a factor of 5.

      But keeping out all these genius foreigners is nuts. They are great people to have in the USA and great to work with.

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        Immigration is important but patents are as well.

        Certainly. Both are very important. We are leaving great piles of money “on the table” (so to speak) when we make it harder to people to come to live and work in the U.S.

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