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MatthewZornSecondPaper 8 - 21 May 2010 - Main.MatthewZorn
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What is a Patent? | |
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> | The patent system is bursting at the seams. In many areas, if not in all, the patent system no longer accomplishes what it is designed to do, mainly, to to promote the "Progress of Science and useful Arts" For evidence of this fact, look no further than the crumbling music industry or the broken pharmaceutical system. Given that the system is breaking down, other than dismantling it in its entirety, is there a way to fix it? This is the question I'd like to explore.1 | | | | |
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< | Under the Constitution, the Government has the power to promote “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.
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 constitutional. 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. | >
> | The current system gives patent holders many of the same rights a real property owner would have. 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 constitutional. 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. | | | The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if they want to. So, patents are optional. | | |
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< | Some of the editor's comments have been integrated into the paper. | >
> | (1) On the general validity of things like software patents, I wholly agree with Eben. I think that it is patently absurd that one may patent a software program which ultimately consists of a string of numbers. Moreover, his formalist legal analysis that "the appropriate invocation of the principal of novelty and non-obviousness to software results in zero software patents" must be correct. Frankly, if one can patent these sorts of numbers, why can I not patent pi? Of course I can't, because, if I could I would own just about everything.
But, this is not the focus of this paper. In fact, I'd suggest that the solution I am arguing for is opposite of Eben's goals and many of my own personal views on the issue. Mainly, I am trying to come up with a way to preserve the patent system and try to increase well being within current legal structures. | | | -- MatthewZorn - 20 April 2010
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