The Depclaration of Independence and Individual Rights are generally assumed to be based on the concept of self-ownership. For instance, the article Who are the Real Liberals? in the American Thinker states “self-ownership entails an inviolable right to our lives, liberty, and property, which at the same time entails a prohibition from violating the rights of others.” According to the Article Jefferson was even accused of plagiarizing John Locke in writing the Declaration of independence. According to Nathaniel Branden in an article entitled Reflections on Self-Responsibility and Libertarianism argues that the United States stood “Freedom. Individualism. Private property. The right to the pursuit of happiness. Self-ownership.” And Walter Williams, the conservative economist states “That Americans have joyfully given up self-ownership is both tragic and sad” in an article entitle AMERICANS HAVE GIVEN UP SELF-OWNERSHIP. But now Leonard Peikoff, of the Ayn Rand Institute, says we got it all wrong and the idea of self-ownership is dangerous. This issue goes to the source of all property rights.
Leonard Piekoff, the founder of the Ayn Rand Institute and a philosopher, in a podcast asks if there a difference between the principle of self-ownership and the principle of individual rights? He first restates the questions as is there a difference between someone being the owner of their life and that he has a right to life? His answer is yes there is definitely a difference. Peikoff argues that ownership is a relationship between you and some external object. As a result it makes no sense to say you own yourself. Next he suggests that ownership is about possession. Finally, he says this whole idea of self-ownership is some sort of Conservative conspiracy and a bad idea. Others have argued against self-ownership because if you can own yourself then it implies that you can be owned by others.
The conservative that Peikoff seems to be arguing with is John Locke, the 18th century philosopher responsible for the idea of Natural Rights that underpinned the US Declaration of Independence. Locke stated “every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.” (Second Treatise on Government, Ch. 2, Sect.27.) Now some people have argued the preposition ‘in’ here does not imply self-ownership. This is based on a misunderstanding of property rights. A property right is a moral and/or legal claim to a right of action. Or as Ayn Rand, the philosopher and author of Atlas Shugged, states it “Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object.” Self-ownership then is the right to action with respect to oneself. Peifoff has used the wrong definition of property and variously confused property with possession and only applying to external objects. Possession may be one right that comes with property rights, but you may own a house and then lease it to someone else. If you do that you have traded your right to possession. Property is often confused with the object itself or with possession of the object, but as Rand’s definition makes clear this is conflating different concepts.
Peikoff also provides no justification for his idea that property only relates to external objects. This inconsistent with Ayn Rand’s definition and is inconsistent with how we use ownership in normal language. For instance Rand variously states:
Money rests on the axiom that every man is the owner of his mind and his effort. (For the New Intellectual, p. 89.
“What greater wealth is there than to own your life and spend it on growing?”
–Ellis Wyatt, Atlas Shrugged, Pt. 3 of book.
“For centuries, the battle of morality was fought between those who claimed that your life belongs to God and those who claimed that it belongs to your neighbors — between those who preached that the good is self-sacrifice for the sake of ghosts in heaven and those who preached that the good is self-sacrifice for the sake of incompetents on earth. And no one came to say that your life belongs to you and that the good is to live it.”
–John Galt, Atlas Shrugged, http://aynrandlexicon.com/lexicon/good,_the.html
“There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life.”
Ayn Rand Lexicon, Man’s Rights, The Virtue of Selfishness, 93
Without property rights, no other rights are possible.
Ayn Rand Lexicon, Man’s Rights, The Virtue of Selfishness, 94
Now it is true that Rand also said that “The right to life is the source of all rights.” (The Virtue of Selfishness, 93), but given all her other statements I think it is clear that she is talking about the right to one’s own life, not a disembodied right to life.
Neither Rand nor Locke argued that self-ownership was an axiom. Some people say Locke based self-ownership on god, but then why did he spend so much time explaining what rights we had a in a state of nature. As explained in Wikipedia, State of Nature:
For Locke, in the state of nature all men are free “to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature.” (2nd Tr., §4). “The state of Nature has a law of Nature to govern it”, and that law is Reason. Locke believes that reason teaches that “no one ought to harm another in his life, liberty, and or property”
Clearly, Locke was not relying just on a deity for his support of self-ownership.
Rand’s genius in ethics was to show that self-ownership was the result of the unique nature of man, namely that he is a rational animal. His survival requires his ability to exercise his own reason and when others attempt to limit his ability to use his mind, they are acting in a way that is inconsistent with his survival.
Peikoff argues that being the owner of your life is different than the right to life and I agree. If you are the owner of your life you not only have the right to life, but you have the right to create property, the right to free association, the right to travel freely, and on and on. A naked right to life does not provide any of these things. Peikoff might argue that the right to life includes those things necessary to sustain that life. But if you are being provided food and shelter enough to be alive, your right to life is being observed even if you are a slave or in a prison.
Ownership of oneself is absolutely vital to Rand’s and Locke’s idea of the origin of property rights. If you own yourself then you own those things your produce, but if you do not own yourself then there is no reason why the things you produce would be your property. Image an unowned robot that produces furniture or cakes. Without self-ownership, there is no reason for the robot to own those things he produces.
Self-ownership is not the axiom on which individual rights are built, it is a derived intermediate concept. However, it is a common starting point in a conversation about individual rights because it is easy to comprehend and is familiar to people who grew up in the United States or most common law countries. The idea of self-ownership is incorporated into the Declaration of Independence and in common law. Sir William Blackstone’s Commentaries was the most important treatise on common law in the 19th century. Locke’s idea of self-ownership permeates Blackstone’s Commentaries. Starting with the idea of self-ownership one can build a logical system that is almost as exact as Euclidean geometry. That system explains why we have property rights, how they arise, and who is the rightful owner of the property. It also explains why murder is illegal, why slavery is illegal, why theft is illegal, in fact most of our common law criminal law. It also explains contract law, why we have a right to free association, right to self defense (including the right to bear arms), right to free speech and on and on. It is an extremely powerful tool.
Does self-ownership open up the possibility of you being owned by someone else? If so this would be a powerful reason to avoid the concept of self-ownership. The default position is that you own yourself (morally) under self-ownership, so to be owned by someone else you would have to sell yourself. This means you would have to enter into a contract. But a contract requires two people who are able to enter into and fulfill it. Someone who does not own themself is not competent to enter into or fulfill a contract. The second you enter into a contract to sell yourself to someone else you no longer have the capacity to contract so the contract is invalid. In addition, for a contract to be valid it is necessary that both parties provide consideration. When you sell yourself into slavery you are not receiving any consideration, since you have no right to anything as a slave. Attempting to sell yourself into slavery is a logical contradiction. Self-ownership does not lead to the idea that you can be owned by others, but the exact opposite.
Some might complain that this argument is too legalistic. But we are talking about property rights and contracts and therefore the philosophy of law applies. Property rights and contracts have definitions and logical conclusions and one of those logical conclusions is that you cannot sell yourself into slavery because it is an invalid contract.
Self-ownership is not the axiom on which individual rights are built, but it is an intermediate concept that is consistent with individual rights. When starting from an intermediate conclusion it is always important to be aware of the underlying fundamentals to avoid making a mistake. Self-ownership means that you have a property right in your life and property rights are a right to action. This means that self-ownership encompasses the right to life, but it encompasses so much more.
An academic paper claims that the cost for royalties ($120 per phone) is about the same as the cost of the components in a smartphone. This was accompanied by a number of articles suggesting this was outrageous and unsustainable. For example see:
* The $120 Smartphone Patent Tax: Patent Royalties Cost More Than The Actual Hardware In Your Phone: This one from my favorite patent Luddite site, Techdirt.
The logical flaw underlying all these articles is that the value of products is determined by the amount of physical labor and/or the cost of the underlying materials. On this basis, the actual material costs of a cell phone are probably less than $5 and the labor (unskilled labor in the US is worth perhaps $10/hr) involved in making the phone might be worth $5, let’s throw in $10 for distribution and the hard costs of a smartphone are about $20.[i] The rest of the costs are the result of intellectual property, much of which is in the form of patents, but some is in the skilled labor, copyrights and trademarks. The actual cost of the intellectual property in a smartphone is closer to $380.00. Much of these costs are hidden. For instance, when Intel sells a microprocessor they charge you $50, for example, but the labor cost and material cost of the microprocessor is pennies. The reason they can charge $50 is because of the intellectual property, which means patents. From an economic point of view you are paying a dollar or so for the manufacturing and $49 in patent royalties.
Another logical flaw in these articles is that this is an unsustainable business model. First of all the underlying paper points out that sales of smartphones and tablets is now bigger than all the rest of the consumer electronics space, with over a billion smartphones sold in 2013. Clearly the business model is not falling apart. Second of all, the cost of Microsoft Office Home and Business 2013 is $219.00 and none of that is manufacturing cost. The cost of Microsoft Office is essentially all IP (Patents, Copyrights, etc.). Solidworks, which is 3D CAD software, cost $4000.00 and also has essentially no manufacturing costs, which means you are paying the equivalent of $4000 in royalties. The argument that the model is unsustainable is absurd.
The paper that started this economic stupidity is The Smartphone Royalty Stack: Surveying Royalty Demands for the Components Within Modern Smartphones. The paper is clearly designed to sway public and Judicial opinion in a manner that will be beneficial for Intel. Namely, Intel wants a patent system that emphasizes manufacturing, not inventing. Another goal of the paper is to get courts to reduce the amount of royalties that inventors receive.
“In particular, there has been significant recent focus on “royalty stacking,” in which the cumulative demands of patent holders across the relevant technology or the device threaten to make it economically unviable to offer the product.”
This statement is absurd on its face, as the paper itself points out.
“The market for smartphones has exploded. Smartphones sales for 2013 topped one billion units globally for the first time ever. In addition, global revenues for smartphone and tablet sales in 2013 are estimated to have surpassed for the first time revenues for the entire consumer electronics markets (e.g., televisions, audio equipment, cameras, and home appliances).”
Here is the real point that this paper is pushing:
“Further, the available data demonstrate a need for licensees to advocate and courts to rigorously apply methodologies for calculating royalties that focus on the actual value of a claimed invention put in context of the myriad other technologies in a smartphone and the components in which the technologies are implemented.”
I will admit that having courts set royalty rates is not ideal and the results can be squirrelly, which is why eBay should be reversed. The courts used to just prohibit the infringer from using the patented technology and then the parties had to work out a deal. But the Supreme Court decided that enforcing the only right you get with your patent is an injunction – actually it is not an injunction it is an exclusion order requiring the infringer to not trespass on (use) the patent owner’s property.
The paper admits that its methodology is limited and the actual cash cost going to pay royalties could be higher or lower. For instance, the paper does not track cross licensing, pass through, or patent exhaustion, all of which could significantly reduce the actual royalties paid. They clearly made an error if they did not account for patent exhaustion. If patent exhaustion was part of the royalty costs, then almost every high value component’s price is mainly due to patents. Correctly accounting for patent exhaustion would show a royalty per smartphone closer to the $380.00 per phone as explained above.
The paper is just dishonest when discussing the growth in the number of patents issued and the number of patent lawsuits. It shows in 20 years the number of patents issued in the US has increased from 100,000 per year to 250,000 per year. The implication is that this is an absurd increase in the number of issued patents, but if you do the math this turns out to be a 4.75% annual increase, about the same as the increase in worldwide GDP over the same time period. The paper also shows a graph depicting the number of patent lawsuits exploding around 2011. This increase is due to the America Invents Act, which limited the joinder of defendants in patent lawsuits. This has been well documented, as in the article The America Invents Act at Work – The Major Cause for the Recent Rise in Patent Litigation. The paper’s failure to point this out is just outright fraud. The fraud is perpetrated again when the paper points to the increase in the number of NPE lawsuits. These authors seem to have gotten their training from Al Gore and French economist Thomas Piketty.
[i] In fact you can buy cell phones for less $30.00 on the Internet. The cost of materials in a smartphone and a $30 cell phone is essentially the same. The material costs in a cell phone include the plastic which costs several cents, the metal for the conductors which might be worth a dollar, the silicon which in its raw form is worth almost nothing.
The authors (Sven Bostyn and Nicolas Petit) of this paper, PATENT=MONOPOLY – A LEGAL FICTION, argue that patents are not a monopoly based on standard antitrust analysis. It is very unusual for an academic paper to take such an unpopular position. They must have not got the memo that the goal of all academics is to vilify inventors, patents, and property rights. Below are some the lines I thought were interesting and my comments are below.
No other property right is so expensive, time consuming and expensive to obtain title to.
“In 2011, approximately 1,000,000 patents were granted across the globe. This would mean that 1,000,000 monopolies would have been created worldwide. This clearly, cannot be true.”
“Competition is very valuable, but innovation is probably equally, if not more, valuable.”
My main critique is that they did not explain how patents are a property right or the history of property rights and patents. Under Locke’s theory of property rights, patents and copyrights are property rights – they are granted because of the creative effort (labor) of the inventor/author. This was picked up by Sir William Blackstone in his Commentaries, where he affirms that patents and copyrights are property and therefore natural rights. This was enshrined in the constitution as “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
I have often pointed out that patents are a natural right under Locke’s theory of property rights. Locke stated, in modern language, that you own yourself so you have the right to those things you create. Many detractors have suggested that this absurd. According to Locke the three chief natural rights are life, liberty, and property. Locke states that protecting property rights is the main reason for forming governments.
Sec. 124. The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.
Inventions are the result the inventor’s labor and therefore property under Locke. Property is a natural right, so patents are natural rights. Despite this logical connection, many people have continued to deny that patents (property rights in inventions) are a natural right.
Locke’s ideas were incorporated in the law of the United States by William Blackstone’s Commentaries on the Laws of England. This treatise became the basis of common law in the US. Here is what Blackstone said about patents and copyrights (intellectual property). Note that he cites Locke’s ideas on property rights for his explanation for why intellectual property is Property.
There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions; so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right.
Now the identity of a literary composition consists entirely in the sentiment and the language: the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author’s consent.
This consent may perhaps be tacitly given to all mankind, when, an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway: but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert, and that, in the other, the whole property, with all it’s exclusive rights, is perpetually transferred to the grantee.
On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.
The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials meaning thereby the mechanical operation of writing, for which it directed the scribe to receive a satisfaction; for in works of genius and invention, as in painting on another man’s canvas, the same law gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence, Martial, and Statius. Neither with us in England hath there been (till very lately) any final determination upon the right of authors at the common law.
But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19 hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: and a similar privilege is extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statute 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 21 Jac., I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king’s patentee. (emphasis added)
The idea that patents are a natural right is incorporated in early American law as the quote below shows.
“we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.” (Davoll v. Brown, 7 F. Cas. 197, 199 [C.C.D. Mass. 1845].)
It is just obstinance or disingenuousness to suggest that patents are not part of natural rights.
 The Second Treatise of Civil Government; 1690; John Locke; CHAP. IX., Of the Ends of Political Society and Government.
The en banc rehearing of this case is considering whether the presumption of validity applies to under 35 USC 101. The statute involved in this question is 35 USC § 282 which states:
(a) In General.— A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. (Emphasis added)
CLS Bank argued in their brief that validity and eligibility are different and 35 USC 101 is directed to the latter. Nothing in the statute suggestions that there is a distinction between eligibility and validity. How can a patent be valid and not meet the requirements of 35 USC 101? It can’t. When you turn the question around you see the absurdity of this position. In addition, the reason for a Patent Office is to review inventions to determine if they are eligible for a patent. If the courts are going to ignore the determinations of the Patent Office, then we should just have a registration system. In every other area of law the courts are extremely deferential to administrative agency decisions, but not with patents. Ask yourself why this is. I would suggest the reason is that every other administrative agency increases the power of government, but the Patent Office increases the power of the people. It is patently unfair that an inventor has to defend their patent, two, three or more times and on multiple issues. If the EPA or the FCC or the FTC, etc. had to survive this scrutiny or legislation in general, almost none of the laws or regulations passed in the last decade would stand. It is time to end the double standard that gives a pass for every regulation that increases government power, while forcing private people to jump through hoops. In fact it is time to reverse the process, as the Founders intended.
NO RATIONAL person would buy CLS argument that there is a difference between validity and eligibility. But that does not mean the Judges on the CAFC or Supreme Court will not buy into CLS argument.
For more on the earlier decision CLICK HERE.
At first glance the Koontz v. St. Johns River Water Management District case does not appear relevant to patent law. It is a Fifth Amendment regulatory takings case revolving around wetlands and private property. But as I will explain in more detail below the underlying problem in both these cases is a lack of understanding of property rights. The facts of the Koontz case according to Fox News are
Coy Koontz in the 1970s bought a parcel of land, the majority of which later was classified a wetland. When he sought a permit to develop a portion of it in the 1990s, the Florida agency in charge of the area said Koontz would need to take steps to remediate the damage he would cause.
Koontz offered to give the agency 11 of the 15 acres, in exchange for a permit to develop the remaining land. In addition, the state government said he would need to undertake other improvements. Options ranged from numerous changes to the original plot to paying for enhancement of 50 government-owned acres miles away from the Koontz plot.
Though Koontz continued to offer the 11 acres, he refused to go along with the government’s other requirements and decided to sue.
Antonin Scalia’s comments at oral argument illustrate this lack of understanding of property rights. “I can’t see where there’s a taking here,” Scalia said, adding, “Nothing’s been taken.” Ronald Reagan must be rolling over in his grave – he appointed Scalia (For more of Scalia’s outrageous thoughts see The Soviet Union’s Constitution Was ‘Much Better Than Ours’). Scalia’s thought process, as best I can understand it, is that Koontz still has legal title to his land and his land is still there – it was not taken. Judge Scalia seems to not understand the difference between property rights, possession, and the object. (For more information click here) Property rights define a relationship between a person and an object or thing. When Mr. Koontz acquired title to the land, it did not have lien or an easement that required him to give up a part of land or pay for the enhancement of government land. The government changed his rights in the land. The Fifth Amendment states “nor shall private property be taken for public use, without just compensation.” Mr. Koontz right to develop his property and his right to enjoyment of his property have clearly been altered without compensation. The government has taken these rights in his land for public use, so it is clearly a taking.
Scalia has also shown an appalling lack of understanding of patent law and it is because he does not understand property rights. Property rights derive from the fact that a person owns their self and therefore they own those things they create. Patents are property rights that the inventor gets because they created a new invention.
Mr. Koontz attorneys work for the Pacific Legal Foundation. This group does good work protecting economic freedom, but they also do not understand property rights either. At least one of their lead attorneys believes intellectual property should not exist – see Another Confused Libertarian on Intellectual Property . These people believe that property rights exist or should exist only because they result in more optimum economic outcomes. Really, they should call they them ‘property privileges’ or ‘property expediencies.’ Their commitment to so-called property rights only lasts until they are convinced they know what better to do with your property.
So what we have is a case in which the supposed defenders of property rights do not understand them. What do you think the likely outcome will be?
Patent and Property Rights
When the so-called defenders of property rights, believe they are just a political expediency that produces the best outcome for the collective, you can bet they will never support patents, which are property rights in an invention. I have seen patent attorneys attempt to use this line of reasoning with patents. They are happy to have people characterize patents as a monopoly, but think this is irrelevant because they can show patents are good for the economy. These people do not understand the philosophical battle over patents or the definition of a monopoly. They believe that because the anti-property rights crowd believe in monopolies for electrical and water systems, they will be in favor of monopolies for inventions. However, they forget that in the electrical and water systems case the anti-property rights crowd supports this because it increases government power, not for the bogus efficiency argument. But patents increase the power of the individual, not the state. So it does not matter how well you can show that patents are important for economic growth and improve everyone’s life, they will not favor it because it increase the power of private citizens.
Property rights are derived from the right to own oneself. If you do not own yourself, you are not free and do not live in a free society. If you own yourself, then you own that which you produce, including inventions. The patents are monopolies argument is without any merit from a historical, definitional, and empirical point of view. Understanding that patents are property rights is the key to both solving the patent problem and the Koontz case.
For more on patents and monopolies see.
This post explains the characeristics of a monopoly and a property right and poses three questions to show the difference. Patents fit all the characteristics of a property right and none of a monopoly. Note that professional license, such as a law license has some of the characteristics of a monopoly.
If patents are a monopoly, as some suggest, then it should led to certain outcomes. A close examination shows that none of the supposed monopoly effects result from granting patents.
This post contains a number of quotes from philosophers explaining that patents are not monopolies.
This post explains the difference in the concepts of property rights, possession, and objects. Most economists and patent detractors confuse these concepts. The origin, definition, and legal basis of property right are explained.
This post compares the definition of a monopoly to the rights obtained with a patent. It shows that the rights obtained with a patent do not confer a monopoly.
The Supreme Court agreed to review the case Association for Molecular Pathology (AMP) and ACLU v. USPTO and Myriad Genetics (Fed. Cir. 2012). Myriad holds a patent for identifying certain mutations in the BRCA genes that correlate with an increased risk of breast and ovarian cancer. Myriad’s stock dropped nine percent on the news. This is the market’s way of saying they don’t believe the Supreme Court will uphold Myriad’s property rights. The Supreme Court has displayed a shocking lack of understand of patents and property rights. For instance, their decision in Mayo Collaborative Services v. Prometheus Labs., Inc. (Supreme Court 2012) if followed logical would hold that only magic is patentable. If I were handicapping this I would say there is a 75% chance that the Court will hold all the claims do not meet the requirements on 35 USC 101 (Patentable subject matter). This will be devastating to the biotech industry, probably wiping out billions of dollars of value in a single day.
This case revolves around the myth that you can patent a person’s genes. A number of books have been published on this theme and I have explained why this is nonsense in my post Patenting Life. The CAFC’s most recent decision discussed below also explains why this is not true.
The only issue involved in the Myriad case is whether the claims are patent eligible under 35 USC 101. In the Mayo case the Supreme Court mixed the concepts of 35 USC 101 (patent eligibility) with novelty (35 USC 102) and nonobviousness (35 USC 103). No doubt we will see more of this confused statutory interpretation by the Court in this case. The only minor justification for this confusion is that 35 USC 101 states the invention must be NEW and useful. However, 35 USC 102 clearly defines novelty (new) in detail and any invention that meets the requirement of 35 USC 102 should be considered NEW under 35 USC 101. This is something that should have been fixed in the America Invents Act that was just passed in 2011, but the drafters were too busy passing out goodies to Wall Street, pharmaceutical companies and large companies generally to actually worry about improving the clarity of statute.
CAFC ruling under reviewed
The ruling in the 2012 version of this case was very similar to the ruling in 2011 that I discussed in my post Association of Molecular Pathology v. USPTO. Below I provide what I think are the most interesting excerpts from the opinion.
Composition claims are all eligible under 35 USC 101.
They (The isolated strands of DNA) are obtained in the laboratory and are man-made, the product of human ingenuity. While they are prepared from products of nature, so is every other composition of matter. All new chemical or biological molecules, whether made by synthesis or decomposition, are made from natural materials. For example, virtually every medicine utilized by today’s medical practitioners, and every manufactured plastic product, is either synthesized from natural materials (most often petroleum fractions) or derived from natural plant materials. But, as such, they are different from natural materials, even if they are ultimately derived from them. The same is true of isolated DNA molecules. PP. 38-39
The highlight portion points out a general rule of patent law (actually nature) – all inventions are combinations of existing elements, these elements are formed from natural materials. You cannot create something from nothing – it’s called conservation of matter and energy. Unfortunately, this simple rule of physics is often ignored by the courts – probably because most of them do not have a scientific background and are therefore unfit to rule in patent cases.
A composition of matter is not a law of nature. P. 51
The anti-patent crowd has been trying to expand laws of nature to include anything that occurs naturally. A law of nature is something that explains a host of data and can be used to accurately predict how things will behave in nature, such as gravity. Using a counterbalance in an elevator uses gravity – a law of nature, but it is not a law of nature.
It is undisputed that Myriad’s claimed isolated DNAs exist in a distinctive chemical form—as distinctive chemical molecules—from DNAs in the human body, i.e., native DNA. P. 44
The critics of patenting human genes miss this point. The claims do not cover native DNA, they cover DNA that does not exist but for the intervention and ingenuity of humans.
Claims 1 of the ’999, ’001, and ’441 patents, as well as method claims 1 and 2 of the ’857 patent—all of which consist of analyzing and comparing certain DNA sequences—not to be patent-eligible subject matter on the ground that they claim only abstract mental processes. P. 55
I strongly disagree with this statement. Myriad clearly showed that the analyzing step requires machines that are clearly described in the specification. Even if a doctor had the print out of the results of analysis and then he compared the results without a machine, then this is contributory infringement. The only justification for the CAFC’s decision is hyper technical analysis of the claim that requires a recited machine in the claims. This sort of overly formal interpretation does nothing to protect the property rights of inventors, but does advance the interests of entities that want to steal other people’s inventions.
We once again, even in light of Mayo, arrive at the same conclusion of patent-eligibility because at the heart of claim 20 is a transformed cell, which is made by man, in contrast to a natural material.
By definition, however, performing operations, even known types of steps, on, or to create, novel, i.e., transformed subject matter is the stuff of which most process or method invention consists. All chemical processes, for example, consist of hydrolyzing, hydrogenating, reacting, etc. In situations where the objects or results of such steps are novel and nonobvious, they should be patent-eligible. P. 61
The idiots at the Supreme Court have attempted to break claims down and determine if each step is new. You can’t create something from nothing and a step which is completely new does not meet the requirements of 35 USC 112. This form of interpretation of the claims was specifically rejected by the 1952 Patent Act under 35 USC 103. But the anti-patent Justices on the Supreme Court are not interested in logic, the Constitution, or the law. They are only interested in forcing their policy visions on the American public.
We hold that claim 20 of the ’282 patent recites patent-eligible subject matter under § 101.
The Supreme Court is incompetent to hear patent cases and their jurisdiction over them should be removed by Congress.
In an article entitled “Sheila Bair: Two Years After Dodd-Frank, Why Isn’t Anything Fixed? , it points out that the LIBOR scandal, the MF Global’s bankruptcy, JP Morgan Chase’s “London Whale” and his trading losses, Barclays’ rate fixing, Peregrine Financial’s fraud have all happened despite the 2,319 page Dodd Frank Act has not stopped. A decade earlier we passed Sarbanes Oxley, which according to its sponsors was going to stop financial fraud, increase investor confidence in the market and in the accounting statements of public companies, and lower the cost to raise capital. But SOX did not accomplish any of this. It did not stop Lehman Brothers, AIG or any of the other financial problems uncovered in the 2008 meltdown. Even more ironic is that no one has gone to jail from these scandals, despite the CEO and others executive officers having to swear that their financial statements were accurate. So what is Ms. Bair, the 19th Chairman of the FDIC, solution – MORE REGULATION. Has Ms. Bair ever heard of the definition of insanity?
Ms. Bair argues that this proves that markets are not “self correcting.” But she fails to note that the US Government always bails out big Banks and Wall Street. Since the crisis of 2008, we have bailed on the banks with TARP, with zero interest rate loans from the Federal Reserve, and with QE1-3. Pat Choate has shown that we bailed on banks and Wall Street at least eight times in the thirty years before that. The markets are not self correcting because the Government does not allow them to work. The Federal Reserve is nothing more than a Bank bailout protection mechanism. Wall Street got special provisions in the America Invents Act to exempt them from competition from innovative startups. Wall Street is acting rationally, because it knows there are no consequences to for failure, but huge upsides if they succeed. That is not how the MARKET works Ms. BAIR – but it is how government works.
Every academic study has shown that Financial Regulation fails to achieve its goals and in fact hurts investors. For instance, see Liu, Tung, Santoni, Gary J., Stone, Courtenay C., Federal Securities Regulations and Stock Market Returns. This paper surveys several papers that all show securities regulation has been a failure. Here are some of the effects of SOX. In 1996 60% of worldwide IPOs went public in theUS. In 2005 only 20% of worldwide IPOs were in theUS. TheUS is the only major country to have fewer public companies today than a decade ago. There has been more than a 90% decline in the number of IPOs. This particularly hurts the technology startup market. It costs around $3 Million a year to comply with SOX as a publicly traded company.
What financial regulation does is increases the cost of obtaining funding for startup and eliminates competition among financial companies.
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