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< | A stream of my consciousness | >
> | What is a Patent? | | | | |
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> | Under the Consititution, the Government is entrusted to “Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this goal, Congress passed Title 35 of the US Code to govern the rules and regulations on patentability and remedies for patent holders against those who infringe patents. | | | | |
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< | As an amendment to the 2006 The Comprehensive Immigration Reform Act, the United States Congress declared that: “English is the common and unifying language of the United States.” Apparently, the 2006 not only decided that it was within its power to but also to invent and declare facts. So what is the rule or principle here? The language of the majority is a unifying language. Seems, rather odd to me. Does a unifying language help people understand each other? | >
> | Patents “shall have the attributes of personal property.” Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore consitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498. | | | | |
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< | Lawspeak is the unifying language of law school and law. Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. For fans of demonstration, language helps me turn this into this. In this sense,“lawspeak” is a language too. Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on a spectrum of judicial review.1 And then, there are the empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on its context. | | | | |
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< | Whenever we quantize ideas, information loss and communication gaps are inherent. Which is why, to get a true understanding of law, the law student must see lawspeak in context. (fn) No competent Constitutional Law professor should breeze past Marshall's dissenting words in San Antonio v. Rodriguez reminding its readers that cases do not always “[neatly]” fall into boxes. Marshall's words here serve as a reminder that the classifications, categories, and rules judges employ are not things in themselves. Rather, these categories exist as necessary, but highly crude representations of things or principles—approximations. We invent lawspeak to facilitate communication, but in the process sacrifice precision in understanding. | >
> | Why do we have Patents? | | | | |
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< | Law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. And inevitably, these new alive things take on lives of their own, divorcing themselves from the things they were supposed to represent. And you get lost in rules. You get asked by your criminal law professor whether a sailor who is trapped on a dingy in the middle of the ocean can legally kill a fellow sailor for food. And then you get asked whether the uninvolved sailor bystander could be charged as an accomplice. And when multiple law students chime in, restating, agreeing and arguing about what should be a non-law, you realize that most lawspeak no longer represents the things it was supposed to represent. You get a bout of morning sickness reading Stewart's opinion in Geduldig v. Aiello. | >
> | The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being byi incentivizine authors to invest time and money in their art. | | | | |
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< | And, it is at this point of realization2 that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for judges to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a perverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas.3 And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness. | >
> | There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most comtemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become execssive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive. | | | | |
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< | But a true lawyer is not merely a judge or a law professor. A lawyer is an advocate for a client. Which means law school in its current manifestation is not producing lawyers. Being an advocate for a client is not just about reading and interpreting law. It is about addressing client needs that almost always stretch beyond reading and interpreting statutes and caselaw. Or it can be about finding a non-lawspeak way to sell the fools gold back to the vendor. Being a client's advocate, requires knowledge of a different language: the language of society, the very thing lawspeak is supposed to represent. | | | | |
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< | And so we descend from Mount Justice holding these expensive tablets of knowledge. And as you reach the bottom, you leave behind your verbose language, silly and imprecise metaphors, opaqueness, and clever tricks that initially helped create an understanding--but are now simply in the way of any discernable meaning. You stop editing and talking in lawspeak (because you realize it is just crap). And then you speak in a language everyone will understand--direct and to the point. You say what should have said in far fewer words: | >
> | How are we fixing the the System? | | | | |
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< | It's all absurd. | >
> | Various methods of curing these defect have been employed. One such solution are patent pools where companies agree to cross-license their patents. The key in any solution is to strike a balance between the “patent” framework and the “no patent” framework. Patents are designed to protect the gains an inventor will receive in order to incentivize investment. Such a justification is rooted in the fact that there is a social gain from new and better iPads (pick your favorite gizmo). But, clearly, at some point we tread into the realm of the “anti-commons” where we are protecting too many rights and social welfare declines due to obstruction. On this side of the continuum, the patent system mainly functions to line the pockets of the elite. In many areas, this consequence is unfortunate but not tragic. However, in health care, the consequence is absurd—people are dying because companies want to get rich. This must change. | | | | |
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> | Another way to change the System | | | | |
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Tributaries of thought:
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> | Let me suggest an alternative tactic that is being bandied about by academics but is rarely used by the holder of the tactic. Take or threaten to take people's patents back. Patents are only good if they are being used. Pharmaceutical drug patents are only good if the drugs they produce are affordable to the people that need them. As the profit margins of drug companies expand to appalling margins, the government should threaten to take the lifeblood out of these companies' balance sheet: their patents. This would be real health care reform. Because the root problem has never actually been coverage but the fact that people need coverage because health care is so damn expensive. | | | | |
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(1) The same can be said “red” and “green” as positions on a color spectrum. Which is an interesting topic in its own right: What is “red”? Obviously, like all colors, the color red is a wavelegnth (according to wikipedia imprecisely 630–740 nm) and so its not a completelyvaucous word. But that is a pretty wide range that shows not all reds are created equal. Two people referring to red will probably be referring to distinctly different things. In some situations, like a traffic light, a large difference will not matter. In other situations, like matching clothes at a Columbia Law social function, the discrepancies in the two reds can be catastrophic. After all, there is nothing worse than mismatching the same color. Thus, when applying the word “red,” the context of the situation is critically important. In theory, a greater understandingcould be reached by using its actual wavelength, or more realistically using other qualifiers like “dark shade of red” or “blood red.” | >
> | Employing such a tactic could bring about a revolution in health care practices. The Government could (but realistically will not) strong arm Merck, Pfizer, and the like into affordable drugs. The decree would be as follows: lower the price on Drug X or I will own drug X. Equally important, the Government could broker cross-licensing agreements and avoid the gridlock Heller deplores. The decree would be as follows: license your patent to company X or I will do it for you. Both of these decrees seem to be well within the Constitutional definition of “public use.” Is there anything more important and more used by the public use than health care? These intrusions would also be well protected by statutory language as use for the “United States.” | | | | |
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> | For a number of political reasons this revolution will probably be deferred to another generation's future. Nevertheless, such a vision would be consistent with the Constitution's decree to protect the “general welfare.” It would strike that delicate balance between protecting the inventor's enterprise and ensuring public benefit. | | | | |
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< | (2) Alternative metaphor: It is like digging for three hours to find a glitzy, ornate, treasure chest only to find that it is empty inside. It doesn't really make sense here, or anywhere, but I just keep thinking about it. | >
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< | (3) Modern lawspeak and financial derivatives have striking similarities. Part of the reason financial were created was to increase fluidity and make exchange more efficient. Both lawspeak and derivatives are imaginary creations—whose value, as the name would suggest in the latter, is entirely derived from a real life thing. In other words, they are not things in themselves. Neither are inherently bad, and used reasonably provide many positive benefits and improve the quality of their respective systems. But, when abused, each works against what the system is trying to do. Too much lawspeak makes (1) judicial opinions opaque, (2) allows judges to hide their (possibly unjust) reasoning, (3) makes law overly complex that it sucks away efforts that could be used to learn other law skills, (4) can promote an unbalanced way of thinking. Most of all, lawspeak makes the law inaccessible to the people it needs to protect. When abused, financial derivatives make the investment system opaque and add too much risk to the system. Both are practically incomprehensible to the common person, and, often incomprehensible to the people who use them.
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> | My last paper was inconsistent with the purpose of this exercise (writing and editing). Please edit this one instead (unless you really want to edit the other one, which is still here). | | | | |
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> | -- MatthewZorn - 20 Apr 2010 | | |
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