*Patents are a Constitutional Right

*Patents and Copyrights are the only right mention in the Constitution

*Patents are a Natural Right

*Patents are a Property Right – the basis of all property rights is creation/production and the same is true of patents.

*Trade Secrets are a Natural Right

*Patents can be viewed as a Social Contract where the inventor gives up their right to a trade secret in order to obtain a patent.

*All Inventions are a combination of known/existing elements/steps and known connections

*Patents are not monopolies  (A property right cannot be a monopoly)

*All Inventions use natural phenomena – we are not dealing in magic.

*Every element in every claim of a patent behaves in a predictable way – they do not violate the laws of physics – again we are not patenting magic.

*Claims define what the invention is.

*Every element (word) in a claim has to be given meaning – reading a claim is like reading an equation – not like reading prose.

*The definition of an Invention implies that it is Useful or has an Objective Result

*The definition of an inventor requires that they be the first person to create the invention, which results in the novelty requirement.

The claims are directed to three expert systems on a computer and inputting data about the patient.  The computer then ranks the treatment options and provides advisory information to the doctor about the treatment options.

The courts holding was

 The patents-in-dispute do no more than describe just such an abstract mental process engaged in routinely, either entirely within a physician’s mind, or potentially aided by other resources in the treatment of patients.

The Court also finds that the patents-in-dispute are invalid under the “machine-or-transformation” or “MOT” test utilized in some of the Supreme Court and Federal Circuit precedent.

Abstract Mental Process

The claims are clearly directed to a computer.  The computer is running three separate expert systems and provides a rank list of therapeutic options and advisory information.  Computers are not abstract mental processes.  They use electricity, they cause the state of transistors to change, they cause electrons to change position.  This is not an abstract mental process.  Judge Beryl A. Howell, the judge in this case needs to have her head examined if she believes a computer is an abstract mental process.  But what can you expect from someone who got their undergraduate degree in philosophy and probably never took a science or math course in college.  For Judge. Howell’s edification, I will point out that a computer is a general purpose electronic circuit.  Software is a way of wiring this general purpose electronic circuit.  So when a software program is executed it changes the wiring of the electronic circuit and makes it a specific electronic circuit.  Wiring an electronic circuit is not an abstract mental process.  This is just another depressing example of why we need courts and judges who understand technology and patent law in resolving patent disputes.

Because so many people, including patent attorneys appear to be confused about what an abstract mental process is, I will write a claim below that would fit the definition.

 A method of solving an integral in closed form, comprising the steps of :

mentally reviewing an integral to be solved;

selecting mentally one of a plurality of techniques for solving the integral; and

applying mentally a selected technique from one of the plurality of techniques to the integral, wherein the plurality of techniques include integration by substitution and integration by parts.

MOT

The invention clearly involves a computer.  A computer is a machine.  When an instance of code is executed by a computer it is a specific purpose electronic circuit.  A specific purpose electronic circuit converts electricity into states of transistors – thus the transformation prong is also satisfied.  But an attorney who has never taken a class in physics, let alone electrical engineering would not have this basic knowledge.

 The steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. P. 4

And adds:

 The three steps (of the claim) as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.  P. 10

Logically, the Supreme Court is saying that known steps or elements in combination with a law of nature is not patent eligible.  First every invention ever made involves steps (elements) that were known individually before the invention, and laws of nature.  You cannot create something out of nothing.  Section 112 means that you have to be able to describe your invention in terms known to those skilled in the art.  Thus the Supreme Court’s holding means that any invention that satisfies 112 is unpatentable under 101.  The only inventions that will satisfy 101 are those that violate laws of nature or involve creating something out of nothing – or magic.

Get out your cauldrons-

For the lawyers in the audience this case reintroduces the point of novelty test nonsense.

I have written extensively about this case in the following posts and will not reiterate my earlier points.

Justice Breyer: Patent Ignorance 

Mayo v. Prometheus: An Update

Mayo v. Prometheus – Supreme Court Grants Cert (Again) 

But for those not familiar with the case here is a little background

The patents (6,355,623 and 6,680,302) claim methods for determining the optimal dosage of thiopurine drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases. Thus, the questions in this case are whether determining optimal dosages of thiopurine drugs to treat autoimmune diseases exists in nature separate from man and whether this solves an objective problem? Clearly, determining optimal dosages does not exist in nature for any drug and the patent solves the objective problem of determining the optimal dosages of thiopurine drugs for autoimmune diseases.

Ayn Rand discussed this exact issue in Atlas Shrugged.  James Taggart is discussing Rearden Metal with his wife:

”…’he didn’t invent smelting and chemistry and air compression.  He couldn’t have invented HIS metal but for thousands and thousands of other people. HIS Metal! Why does he think it’s his? Why does he think it’s his invention?  Everybody uses the work of everybody else. Nobody ever invents anything.’ (Jim Taggart)  She(Jim Taggart’s Wife) said, puzzled, ‘But the iron ore and all those other things were there all the time. Why didn’t anybody else make that Metal, but Mr. Rearden did?’”  Kindle Location 5796-5802

These exact questions could be asked of the Supreme Court.  All these other steps were available to other people, but no one else discovered how to use thiopurine to safely treat Crohn’s disease.  In fact, the Supreme Court admits as much.

 . . . and it has been difficult for doctors to determine whether for a particular patient a given dose is too high, risking harmful side effects, or too low, and so likely ineffective.  p. 4

The reality is that this Supreme Court is anti-patent and anti-property rights.  The opinion states patents are monopolies in three spots and mentions rent seeking in one spot, but it does not mention that the Constitution clearly states that inventors have a RIGHT to their invention and it does not state that patents are property rights.  This case is just another example that the anti-property rights and anti-Natural Rights crowd is in control of our government.  This case will have long term negative ramifications for the US economy.  The US is losing its technological advantage because it believes that inventors should work for free.  Note that Singapore is taking another path and trying to figure out how to strengthen their patent laws (see Singapore and the US Divergent Patent Policies)

“The truth is that today’s patent litigation rate is less than half what it was in the mid-nineteenth century, a period widely recognized as the golden age of American innovation.”

The article puts today’s patent litigation rates in context.

According to Lex Machina’s authoritative “Database of U.S. Patent Litigation 2011,” the number of patent suits filed between 2001 and 2010 has held steady at less than 3,000 per year. Only about a hundred of these cases actually went to trial each year

To put it in even broader historical context, the estimated 100 patent suits currently filed in the smartphone industry is actually less than one-fifth the number of suits filed during the first “Telephone Wars” of Alexander Graham Bell’s time. Back then, the American Bell Telephone Company and its successor, AT&T, litigated a whopping 587 patent cases alone.

Perhaps even more importantly the article explains that a strong patent system creates a division of labor between inventors and manufacturers.  According to Adam Smith the division of labor is key to increasing our wealth.

“The growth of market trade in patents raised the returns to invention and encouraged a division of labor whereby technologically-creative individuals increasingly specialized in their comparative advantage—invention,” observed Lamoreaux and Sokoloff. “It was the expanded opportunities to trade in patented technologies that enabled the independent inventors of this golden age to flourish—and that stimulated the growth of inventive activity more generally.”

By 1865 the per capita patenting rate in the U.S. was triple that of Britain, and the vast majority of those citizen-inventors were what we now call “non-practicing entities,” or NPEs, who licensed their patents to others to commercialize into new products.  Indeed, patent and legal records from the nineteenth century indicate that more than two-thirds of the 160 so-called “great inventors” of the Industrial Revolution, including Thomas Edison, were NPEs.

Please check out the full article at:

“No, the Patent System Is Not Broken”

The law on point is:

 35 U.S.C. 171 Patents for designs

“Whoever invents any new, original, and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.”

There does not appear to be any reason why the designer of the headlamp should not receive a design patent according to the law.  Under the case law it appears that there might be some argument that the design patent does not apply because it falls under the repair exception to patents.  However, if the patent holder got a design patent on the headlamp, then this would not appear to apply since the headlamp is not being repaired it is being replaced – manufactured.

The economics on point do not appear to be so straight forward.  If the designer of an automobile determines the price of a car based on their total return, then they probably include the residual income they expect to make from repairs.  If this is the case then the law will just increase the cost of new automobiles and reduce the cost of repairs, but the total cost of ownership will stay the same.  In addition, if the bill becomes law it is likely to reduce the value of original designs.  As a result, we will trade unique designs for me too designs.  This is likely to help low cost me-too producers at the expense of innovators.  The economics of the situation are ambiguous at best, but it is likely to hurt manufacturers at the expenses of the financial industry (insurance companies).  Given the recent performance of financial companies and the fact that they have inordinate influence on Washington, I am inclined to say the net result will be detrimental to average Americans.  Manufacturers tend to employ many average Americans at good wages.  Finance companies tend to inordinately enrich a few people at the top.

The real problem with this bill is that it is not based on a discussion of property rights.  It is an example of power politics at its worst, much like the SOPA and PIPA bills.  It pits the lobbying power of the automotive industry against the lobbying power of the insurance industry.  In other words this is just another example of how our country has deteriorated into a Civil War without guns.  Each group uses the government to steal from the other group, which is why I call it a Cold Civil War.

From a property rights perspective a manufacturer should be able to obtain a design patent for each part that is manufactured – assuming it is an original design.  Given the narrow nature of design patents, it should be relatively easy to modify the design to avoid the patent.  For instance, a slight change in the headlamp assembly should avoid the design patent.  In a free market, a consumer should have the choice to select a car that has a common design and the cost of repairs are low because few design patents apply or a highly stylish design where the cost of repairs are high because many design patents apply.  The cost of insurance would also vary based on this information.  As a result, the insurance industry should not be disadvantaged.  The fact that they insurance industry is whining about this just shows that their goal is to obtain unjustified profits (based on a property rights point of view) at the expense of manufactures.  Of course, we don’t live in anything like a free market and there is all sorts of other government interference in the market that one or the other side might make them believe they have the right to ignore the property rights of the other group – Government bailouts of insurance companies and automobile companies come to mind.

The US is no longer a nation of laws, because we no long have a meaningful Constitution and we no longer protect or understand property rights.  The PARTS Act is just another sad example of how we have become a country in a COLD CIVIL WAR.

The reason for marking you product with a patent number is that it provides “constructive notice” to infringers of your patent.  Damages for patent infringement accrue from the date of actual or constructive notice to the infringer.  As a result, the damages you may recover will be larger the sooner an infringer is deemed to have notice of your patent.

From a practical point of view, having a website explaining which patents cover which products is significantly easier and less expensive than marking the actual product or the product’s packaging.  If it is not too expensive to also mark your product or its packaging I would suggest that inventor’s do both.

Here is how Section 16 of the AIA reads:

(a) VIRTUAL MARKING.—

(1) IN GENERAL.—Section 287(a) of title 35, United States Code, is amended by striking ‘‘or when,’’ and inserting ‘‘or by fixing thereon the word ‘patent’ or the abbreviation ‘pat.’ together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent, or when,’’.

(2) EFFECTIVE DATE.—The amendment made by this subsection shall apply to any case that is pending on, or commenced on or after, the date of the enactment of this Act.

 

The paper discusses how the statutory language of awarding damages has changed over time and the evolution of injunction relief.  Below I will quote the historical statutes from the paper.  But before I do that I want to point out three problems with the presently available relief for patent infringement.

1. Injunctions Are Optional Upon a Finding of Infringement

2. No Enhanced Damages for Purposeful Negligence.

3. Reasonable Royalties are Never Adequate Compensation.

1. Injunctions Are Optional Upon a Finding of Infringement

The patent right is the right to exclude.  It is the height of absurdity to win a patent lawsuit and not obtain an injunction.  If I win a lawsuit then I should be able to enforce my right, which is the right to exclude.  You cannot exclude someone from trespassing on your property in the past.  Thus the right to exclude means the right to exclude in the future or an injunction.

Unfortunately, this bit of illogic is brought to you by the statute 35 USC 283, which states that injunction may be granted in accordance with the principles of equity.  This means in theory that you can win a patent lawsuit and still not be able to enforce your right to exclude.

The law should be changed so that an injunction should issue as part of any suit in which a patent is found to be infringed.

2. No Enhanced Damages for Purposeful Negligence.

The treble damages provision for patent infringement is only for ‘willful’ infringement.  This means that companies can practice purposeful negligence and the worst case outcome for this is to pay the patent holder the damages they caused.  See point 3 below.  In addition, the In re Seagate Techs., LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc) overturned the longstanding principle that an infringer must exercise a duty of due care.  As a result, the enhanced damages provision has become meaningless.  An infringer has no duty of care to not infringe and can then defeat any charge of willfulness by purposeful negligence.  The threat of enhanced damages is now almost meaningless and provides no deterrent effect to keep people from infringing patents.

The law should be changed so that enhanced damages should be available in the case of negligent infringement.  This is the only way to protect our inventors for technology thieves.

3. Reasonable Royalties are Never Adequate Compensation.

In any lawsuit there is a non-zero chance that you will win even if you are guilty.  If the damages are found to be a reasonable royalty, then the logical choice is always to negligently infringe a patent.  In the worst case the infringer will only pay what they would have had to pay the patent holder if they had negotiated a license and there is a chance they may win the lawsuit incorrectly and pay nothing.  Now, you may object that if they are forced to pay lost profits as damages this is a real deterrent.  This is true, but the reality is that it is very hard to prove lost profit and the patent holder must show that ‘but for’ the infringing activity they would have made the sale.  In the case of a large company infringer and a small company patent holder, the patent holder is likely to end up with even less damages under the lost profits calculation.  As a result, many large companies pursue a policy of efficient infringement.  This policy is morally reprehensible, but it does make economic sense.

The law should be changed so that the minimum damages is reasonable royalty plus some percentage amount such as 20% to provide an adequate protection for America’s inventors.

Below are some of the interesting highlights from the excellent paper PATENT DAMAGES by Bill Cochran.

Act of 1790

The first patent act, the Patent Act of 1790 provided that an infringer must:

…forfeit and pay to the patentee such damages as should be assessed by a jury, and moreover, to forfeit to the person aggrieved the infringing machine.

 

Act of 1793

Three years later, this was changed in the new Act of 1793, §5.  It was a significant departure from the Act of 1790, and a significant departure from the common law of torts.  This new Act (§)5 provided:

That if any person shall make, devise, and use or sell a thing so invented, the exclusive right of which has been secured to any person by patent, without the consent of the patentee . . . the person so offended shall forfeit and pay to the patentee a sum that shall be at least equal to three times the price for which the patentee had usually sold or licensed to other persons the use of said invention.

 

Act of 1800

The Act of 1800 removed the requirement that the patentee had to be selling a product and recognized the value of maintaining exclusivity and not just liability.  Thus, the new Act of 1800 returned to the concept of damages, requiring the infringer to:

…forfeit and pay to the patentee a sum equal to three times the actual damages sustained  by such patentee.

 

The Act of 1819 §(c) read:

. . . that the Circuit Courts of the United States shall have original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their respective writings, inventions, and discoveries; and upon any bill in equity, filed by any party aggrieved in any such cases, shall have authority to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of any authors or inventors secured to them by any law of the United States, on such terms and conditions as the said courts may deem fit and reasonable

This appears to be the first instance that an “injunction” could be obtained against an infringer.

The Act of 1836, §14, read as follows:

Whenever in an action for damages for making, using, selling the thing patented . . . a verdict shall be rendered for the plaintiff, it shall be in the power of the court to render judgment for any sum above the amount found by the verdict as the actual damages sustained by the plaintiff, not exceeding three times the amount thereof.

 

Act of 1870

 

. . . and the court shall have power, upon a bill in equity filed by any party aggrieved, to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any rights secured by patent, on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the claimant [complainant] shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has suffered thereby, and the court shall assess the same or cause the same to be assessed under its direction, and the court shall have the same powers to increase the same in its discretion that are given by this Act to increase the damages found by verdicts in actions upon the case…

 

The Patent Act of 1922 stated:

. . . and upon a decree being rendered in any such action for infringement the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby, and the court shall assess the same or cause the same to be assessed under its direction.

If on the proofs it shall appear that the claimant has suffered damage from the infringement or that the defendant has realized profits therefrom to which the complainant is justly entitled, but that such damages or profits are not susceptible of calculation and determination with reasonable certainty, the court may, on evidence tending to establish the same, in its discretion, receive opinion or expert testimony, which is hereby declared to be competent and admissible, subject to the general rules of evidence applicable to this character of testimony; and upon such evidence and all other evidence in the record the court may adjudge and decree the payment by the defendant to the complainant of a reasonable sum as profits or general damages for the infringement…

 

 

The Act of 1946 reads as follows, now being numbered as 35 USC §70:

[after authorizing injunctions, the first paragraph continues] …and upon a judgment being rendered in any case for an infringement the complainant shall be entitled to recover general damages which shall be due compensation for making, using or selling the invention, not less than a reasonable royalty therefor, together with such costs, and interest, as may be fixed by the court.  The court may in its discretion award reasonable attorney’s fees to the prevailing party upon the entry of judgment on any patent case.

The court is hereby authorized to receive expert or opinion evidence upon which to determine in conjunction with any other evidence in the record, due compensation for making, using, or selling the invention, and such expert or opinion evidence is hereby declared to be competent and admissible subject to the general rules of evidence applicable thereto.

The court shall assess said damages, or cause the same to be assessed, under its direction and shall have the same power to increase the assessed damages, in its discretion, as is given to increase the damages found by verdicts in actions in the nature of actions of trespass upon the case; but recovery shall not be had for any infringement committed more than six years prior to the filing of the complaint in the action.

This is the first statement about reasonable royalties.

Act of 1952

Section 284 states:

 

Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.

 

When the damages are not found by a jury the court shall assess them.  In either event the court may increase the damages up to 3 times the amount found or assessed.

 

The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.

 

However, the decision in In re Seagate overturned a longstanding principle that an infringer must exercise a duty of due care.

 

Present statute

§283.  Injunction

 

The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

 

As stated by the Federal Circuit in Smith International, Inc. v. Hughes Tool Co., 718 F.2d 1573 (Fed. Cir.), cert. denied, 464 U.S. 996 (1983):

Without this injunctive power of the courts, the right to exclude granted by the patent would be diminished, and the express purpose of the Constitution and Congress, to promote the progress of the useful arts, would be serious undermined.  The patent owner would lack much of the “leverage,” afforded by the right to exclude, to enjoy the full value of his invention in the market place.  Without the right to obtain an injunction, the right to exclude granted to the patentee would have only a fraction of the value it was intended to have, and would no longer be as great an incentive to engage in the toils of scientific and technological research.

In eBay v. MercExchange, L.L.C., 547 U.S. 388 (2006) , the Supreme Court made it clear that obtaining injunctions in patents is no different from obtaining an injunction is any other civil matter relying upon equitable relief.  The plaintiff must prove four factors:

1. The Plaintiff will suffer irreparable harm without an injunction.
2. The remedies at law, which are money damages, are inadequate to compensate for the injury.
3. Considering the balance of hardships between the plaintiff and the defendant, an injunction is warranted.
4. The public interest would not be disserved by issuing an injunction.

 

 

In Mayo v. Prometheus, the Supreme Court is again addressing patentable subject matter. During oral arguments, Justice Breyer came-up with a hypothetical invention to help him draw the line on patentable subject matter.

JUSTICE BREYER: Suppose I discover that if … someone takes aspirin … for a headache and, you know, I see an amazing thing: if you look at a person’s little finger, and you notice the color [indicates that] you need a little more, unless it’s a different color, you need a little less. Now, I’ve discovered a law of nature and I may have spent millions on that. And I can’t patent that law of nature, but I say: I didn’t; I said apply it. I said: Look at his little finger.

MR. SHAPIRO: Sure.

JUSTICE BREYER: Okay? Is that a good patent or isn’t it?

MR. SHAPIRO: No … Well, because you — you’ve added to a law of nature [to] just a simple observation of the man’s little finger.

First of all taking aspirin is not a law of nature.  The law of nature would be how the body reacts to aspirin, but the process of taking aspirin is not a law of nature.   If you use this information to observe whether someone is taking too much or too little aspirin, then you have applied that “law of nature” to a human problem.  Namely, how to know how much aspiring one should take for a headache.

The Supremes struggled to find a hypothetical to understand 35 USC 101 according to the reports.  Here is a simple 35 USC 101 test that even they should be able to apply correctly.

Anything that man creates to solve an objective problem is an invention.  If a device/service is not found in nature separate from man then it is an invention.  For example, the ability to create fire or harness it is an invention of man.  No other animal has the ability to create or harness fire.  Man did not have some sort of inherent knowledge of how to create or harness fire, so creating fire is an invention.[1]

Applying this information to the above hypothetical, aspirin is created by man.  It does not exist separate from man, so this hypothetical is clearly within 35 USC 101.  Taking aspirin is not a part of nature.  Observing the effects of taking aspirin is not a part of nature.

Mayo’s argument in this case boils down to patents should not exist, or at least should not be apply to Mayo.

The patents claim methods for determining the optimal dosage of thiopurine drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases.  Thus, the questions in this case are whether determining optimal dosages of thiopurine drugs to treat autoimmune diseases exists in nature separate from man and whether this solves an objective problem?  Clearly, determining optimal dosages does not exist in nature for any drug and the patent solves the objective problem of determining the optimal dosages of thiopurine drugs for autoimmune diseases.  CASE DISMISSED.  This case is straight forward and should never have been granted certiorari by the Supreme Court. I have previously written about this case at Mayo v. Prometheus – Supreme Court Grants Cert (Again).

I consider it bad news that the Supreme Court granted certiorari in this case, because they have gotten so many patent cases wrong in the last five years.  Their understanding of patent issues would make a first year patent associate blush.  However, the last patent case they decided, Stanford University v. Roche Molecular Systems, showed some signs for hope.

Mayo has attempted to obscure the issues, by blurring the differences between section 101 & sections 102 & 103.  For instance “Mayo argues that the claims’ physical steps should be disregarded because they are old in the art.” (p. 1 Prometheus Brief)  Whether these steps are new or old is totally irrelevant to the 101 question.  This question is only relevant to the question of novelty and non-obviousness.  But even with respect to the question of novelty and non-obviousness this statement is non-sense.  It is a violation of both logic and legal precedent.  Every invention ever created is a combination of known elements (steps) because of conservation of matter and energy – you cannot create something from nothing.  From a legal precedent point of view, this is an attempt to reinstitute the point of novelty test, which was always nonsense because it violates conservation of matter and energy.

Mayo also attempts to argue that Prometheus has patented a law of nature.  This is absurd – the optimal dosage for an individual human being of thiopurine drugs, is a law of nature?  Admittedly, I am not an expert in pharmacology but there is no way that determining an individual dosage for a specific person is a law of nature.  Mayo knows this is non-sense, so they attempt to make the argument respectable by again disregarding parts of the claims.  A law of nature would be something like the absorption rate of a drug into a cell is based on certain factors.  An application of that law of nature, for instance to tailor a drug so it has a faster or slow absorption rate is an invention.

Mayo then puts forth the fraudulent argument that every patent should be evaluated by the courts as to whether it “promotes science and the useful arts.”  First, of all the preamble to Article 1, Section 8, Clause 8 is not limiting and never was meant to be limiting.  It is standard knowledge to every patent attorney that preambles are not meant to be limiting.  The Constitutional clause uses the word “RIGHT” and by right the Founding Fathers meant “natural rights”, which are not subject to some utilitarian purpose. The right to Life, Liberty, and the Pursuit of happiness are not subject to some utilitarian goal, they are unalienable – inherent in being a human being.  The fraudulent nature of this argument can be seen in the fact that its proponents never suggest that every trashy novel, movie, or painting should not receive copyright protection because it does not advance science and the useful arts.

Mayo then puts forth another argument made by every parasite – namely that patents are a monopoly.  This is just nonsense.  Patents are a property right not a monopoly. The statute defines patents as a personal property right and patents meet all the tests of a property right.  Namely, 1) Does the right arise because the person created something?  Creation is the basis of all property rights.  The law is just recognizing the reality that the person is the creator and without that person the creation would not exist.  This is consistent with Locke’s Natural Rights and Ayn Rand’s Objectivism. 2) If someone else was the creator would they have received the right in the creation? This ensures that the right does not arise from political favoritism. 3) Is the right freely alienable?  Freely alienable means that right can be sold, transferred, divided, leased, etc.  This is a key feature of property rights. Patents fit all three criteria and are property rights.

Mayo then puts forth the PATENTABLY absurd argument that the patent system could be replaced by government funding of inventions.  The absurdity of this argument can be summed up in one word – SOLYNDRA. First of all, the Supreme Court does not have the authority to make the decision to scrap the patent system and replace it with government funding.  This argument by Mayo borders on delusional.  Even Congress does not have the right under the Constitution to eliminate patents that would require a Constitutional Amendment.

Mayo has neither the facts or the law on its side so its approach is to purposely confuse the issues and to outright lie.  Mayo should be ashamed to have its name associated with the parasitic attempt to rob the invention of others.

This article was written by Gary Lauder is Managing Director of Lauder Partners, a Silicon Valley-based venture capitalist and co-inventor of a dozen patents. More info on this issue can be found on his Web site.