In order to understand why patents are property rights, we first have to understand what property rights are. The Austrian School of Economics theory of property rights is that they are a social construct necessary to efficiently distribute scarce resources. According to Austrians intellectual property is not scarce and therefore not property. Since IP is not property it is a monopoly and represents the immoral aggression on the part of the state.
The Austrians position is incorrect, logically, historically, and empirically. Property rights in the US are based on Locke’s formulation that property rights result from the act of creation. Note this is update for modern language. Austrians and Libertarians have purposely mischaracterized Locke to create a straw man argument as to why Locke was wrong. Adam Mossoff has an ...read more...
Disuniformity, is an academic paper that concludes the CAFC has had a marked increase in doctrinal disagreement over the last few years. The paper explains that the whole purpose of the CAFC was to provide doctrinal consistency in patent law. Perhaps the most interest parts of the paper are on what lead to the creation of the CAFC. Below are some parts I found interesting.
In the time leading up to the creation of the Federal Circuit, the United States faced economic recession, high unemployment, mass layoffs of scientists and engineers, and extreme inflation. P.2
Gee that sounds like today. Think there is any
A recent study report on PatentlyO clearly shows that President Obama and the histrionic chorus of the surge in lawsuits by Patent Assertion Entities (Mythical Patent Creations) is just not true. Changes in the law under the American Invents Act (AIA) that prohibited the joinder of defendants for the infringement of the same patent are the only reason for any apparent change and this was a known outcome of the AIA. The complete paper “Patent Assertion Entities (PAEs) Under the Microscope: An Empirical Investigation of Patent Holders as Litigants” can be downloaded here.
CLS Bank filed their brief in opposition to the Writ of Certiorari on November 6, 2013. Some people use words to understand the world and some people use words to manipulate other people. CLS’s brief falls into the second category. The brief can only be described as a dishonest mish mash of ideas that are often illogical, contradictory, and outright lies. On the merits of the Writ it is clear that the courts do not have a consistent standard for 35 USC 101, particularly with respect to software enabled inventions and so called business method inventions. Note that almost every invention is a business method invention because people want to commercialize their inventions, so they are part of a business. The first patent ever issued in the US was a method of making pot ash, which is a business and a method of operating that business.
I loved this book. Just when I thought I had it figured out another twist came. Intelligently written but easy to read. If you like books that break the rules and keep you guessing then you will love Pendulum of Justice. I highly recommend it.
Now that we have some idea of what wealth and economic growth are, let’s look at some examples of what is not economic growth. When Tony slaughters a cow and eats it he has consumed some of his wealth. He has one less cow, but he has food in his belly that he needs to live. Is he wealthier now? Well he needs food to eat in order sustain his life. If he starves to death, he is certainly not wealthier. However, Tony now has less of what he needs to sustain his life in the future. Wealth is the surplus above what one needs to live today. Consumption is not wealth. Interestingly, being overweight was traditionally considered an indicator of wealth. The excess fat meant you could sustain yourself without eating for longer because you could not find food, or because you were sick and could not hold food down. In fact, it was fashionable for women and men to be overweight
It is my contention that classical economics is not completely consistent with Ayn Rand’s Objectivist philosophy and even economists who are Objectivists have failed to provide an economic theory that is consistent with her ideas. For instance, George Reisman is one of the well known economists associated with Objectivism and Professor Emeritus of Economics at Pepperdine University. In his book Capitalism on page 40 he states:
Patents … derive their market value from the fact that they make it possible for the intellectual creators of new and additional wealth to benefit from their contributions by temporarily limiting the increase in wealth that their intellectual contributions bring about.
Virginia republican Bob Goodlatte has introduced the Innovation Act of 2013 that is touted as dealing with the problem of Patent Mythical Creatures. Goodlatte was a big supporter of the America Invents (not) Act, which was suppose to solve all the problems in patent law and was just passed in 2011. The Innovation Act of 2013 has six main parts and is supported (written?) by the Electronic Frontier Foundation, a group dedicated to eliminating intellectual property rights. The Bill would require special rules for Pleadings and Fee Shifting in patent cases. If these are good ideas, then
Like all good thrillers, this one leaves you breathless but also makes you think, “Could this really happen?” After you remember things that go on in the real world, your answer will probably be a resounding “Yes!” And that’s the scary part. As I was reading, my mind kept going back to The Fugitive—the
What is economic growth? We all think we know the answer to this question. It’s when GDP (Gross Domestic Product) is growing or positive, would be a typical answer. That is an abstract answer for most of us. We tend to focus more on the likely results of a growing economy, such as there are more high paying, high quality jobs; you are more likely to receive a raise above the inflation rate; you are more likely to have more money in your bank account; your access to education, health care, quality of food, etc. generally increase. But if population growth is 5% and GDP growth is only 2% then none of these good things happen. What we are interested in is real per capita increases in wealth.
- Patents Are Property Rights – Period
- Disuniformity: Paper on CAFC’s Failure to Provide Clarity
- Patent Litigation Explosion by PAEs: Obama Misleading the Public Again
- Alice Corp v. CLS Bank: Brief in Opposition to Certiorari
- Pendulum of Justice Now in Paperback
- What is not Economic Growth: Consumption and Destruction
- George Reisman: Are Objectivist Economists Consistent with Rand?
- Innovation Act of 2013
- Pendulum of Justice Reviewed By Steve Moore of Bookpleasures.com
- What is economic growth?