Here is another confused and confusing academic paper, The US, China and the G-77 in the era of responsive patentability Queen Mary Journal of Intellectual Property, Vol. 2 No. 4, pp. 315–328. The paper seems to suggest that it will be bad news for the US and the West if China and other BRIC nations create successful patent systems that result in their technological leadership. The solution according to the paper appears to be aggressive use of anti-trust law. However, the paper is far too incoherent to be sure exactly what the author’s point is.
The paper starts with some telling lines.
It appear that “‘anything made under the sun by man’” is patentable, but it is also clear that the sun never sets on the patent system.
Responsive patentability means that anything is patentable anywhere. Restrictions on patentable subject matter are read down or circumvented through clever claims drafting.
Most citizens in poor states cannot afford to pay patent prices for access to needed medical and food technologies.
Responsive patentability is unresponsive to the preferences of poor people.
The author, Mr. Drahos, is a professor of law and heads the Chair in Intellectual Property at Queen Mary University of London. Interestingly, Mr. Drahos is not a patent attorney and in fact does not have the technical background necessary to be a patent attorney or to sit for the patent bar. How universities think that it makes sense to have a professor who is incompetent to be a patent attorney teach patent law is beyond me.
The paper is full of broad unsupported statements such as those above. Why should the sun set on the patent system? Should the sun set on the criminal system, on the property rights system? Mr. Drahos offers no explanation. Why should there be a restriction on patentable subject matter? If so what should those restrictions be? Again Mr. Drahos offers no explanation.
What is the point of stating that poor people cannot afford patented foods or medicines? Poor people cannot afford many things. That is the definition of being poor. So what is Mr. Drahos point?
Finally, the statement that responsive patentability is unresponsive to the preference of the poor is totally unsupported. Should the criminal law system be responsive to the preferences of the poor? Why should the poor’s input be more important than anyone else? Is physics, algebra, chemistry, calculus responsive to the preferences of the poor? Should they be?
Patent law should be based on logic and reason. It should be firmly grounded in property rights and it should not deviate from this logic for the poor, the rich, or socialists like Mr. Drahos.
Ignoring the obvious bias of the paper it appears to be making a point about China becoming a technological leader and how the US and West should respond to this challenge. The paper explains:
China’s market socialism may yet evolve into a close variant of US knowledge monopoly capitalism. This ending to China’s development story would not surprise readers of Animal Farm.
For a patent wealth maximization strategy to succeed a country’s innovation system must generate core technologies.
Under this criterion the system can be said to work if one country is able to use it to extract monopoly rents from other countries, thereby making it an overwhelming net winner from the system.
From these statements it appears that Mr. Drahos is concerned that China might become a creator of technologies, particularly core technologies, instead of just a consumer. The paper appears to imply this would be bad. I cannot see how the world will be worse off if more people are inventing important technologies that make everyone’s life better. Again the paper fails to explain this assumption, but there are clues to why Mr. Drahos is so concerned with this outcome, for instance, the ominous reference to Animal Farm.
After setting out this dire situation, Mr. Drahos proposes at least a partial solution.
Let us assume for the sake of argument that a succession of five-year plans turn China into a patent superpower with control over many core technologies. How might the US respond to such a situation? One possibility is that it would simply issue compulsory licences over those foreign technologies it believed were vital to its national interests. Over the course of the twentieth century, antitrust law has been intellectual property’s constant regulatory shadow. For significant periods of the twentieth century it was a shadow that loomed over intellectual property owners to check the exclusionary uses of their monopoly powers. There is a resilience to antitrust principles in the US that should never be underestimated.
Mr. Drahos solution to an inventive China is to ignore property rights either with compulsory licensces or antitrust law. Modern antitrust law is anti-property rights and turned the law against monopolies on it head. The Statute of Monopolies of 1623 limited the power of the Crown (government) to interfere with private property rights. The Statute of Monopolies excluded patents for inventions because they result from the creative effort of the inventor and therefore are property rights. On the other hand modern antitrust law increases the power of government to interfere with private property rights. The underlying theory of antitrust law is the efficient market hypothesis. This hypothesis postulates that wealth is created by falling prices for existing goods and services and this is the result of competition to sell existing goods and services. However, this is incorrect and inconsistent with modern economic research. Increases in per capita income are the result of increases in technology – inventions. Antitrust law undermines the incentive to create and invest in new technologies and therefore hurts our economic health.
When the US was facing an economic and technological challenge from Japan in the 1970s, the answer was to strengthen US patent law. It worked spectacularly. The US regained both its economic and technological leadership in the 1980s and 1990s. Then the US started weakening its patent laws around 2000 and has continued to do so. Once again the US is stagnant technologically and economically. The clear answer to a technological challenge by China is for the US to strengthen its patent rights and all property rights not to resort to antitrust law, which is what the US did in the 1970s.
Let’s deconstruct Mr. Drahos paper. He hates patents and does not think they should exist. His citation of Michele Boldrin and David K Levine, who have written a book suggesting the elimination of patents, demonstrates this point. Mr. Drahos has argued elsewhere that patents are not “property”, which is consistent with his ‘monopoly’ analysis. But Mr. Drahos isn’t just against patents, he is against property rights generally. For example he quotes Fidel Castro with approval.
Fidel Castro in a speech at a G-77 Summit in Havana in 2000 claimed that developed countries ‘control 97% of the patents the world over and receive over 90% of the international licenses’ rights’. He went on to observe that the ‘new medications, the best seeds and, in general, the best technologies have become commodities whose prices only the rich countries can afford’. Castro finished with a strong appeal for unity and cooperation amongst the G-77.
Castro as a communist is against all property rights. Mr. Drahos concern in this paper is not that the US might fall behind technologically, it is that other countries might adopt a strong property rights legal system that including patents. The patent discussion in this paper is just a crutch from Mr. Drahos to push a radical Marxist ideology. It is an embarrassment that this paper is considered academic or scholarly research and that Mr. Drahos has a job as a professor of law and chair in intellectual property.
The US, China and the G-77 in the era of responsive patentability Queen Mary Journal of Intellectual Property, Vol. 2 No. 4, pp. 315–328.
There appears to be a lot of confusion on whether patents and patent laws are property rights and property laws or regulations. For instance, Steve Forbes in an article entitled, America’s patent system is all wrong for today’s high-tech world starts that article by complaining that the Obama Administration is always looking for a way to “regulate and interfere in the free market.” Mr. Forbes goes on to complain about Non-Practicing Entities (NPEs) asserting patent rights and ends the article by complaining that “don’t we have enough regulatory hurdles to jump in the first place?” I have seen this same theme that patents (all IP) are regulations in a number of blogs. These people do not seem to understand property rights. Part of the confusion may be that we do not have clear definitions of what property rights are and what regulations are. For instance, I looked up a number of definitions of property rights and the definition from Black’s Law Dictionary is representative.
What is PROPERTY?
The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.
This definition is incomplete at best. For instance, is a taxi medallion a property right? Is a license to a part of the electromagnetic spectrum from the FCC a property right? Is a government monopoly to provide electrical power within a certain geographic region a property right? All of these are exclusive legal rights.
Personally, I would consider a taxi medallion or a FCC license a regulation. So I looked up a number of definitions of regulation, and the one below from Free Online Dictionary is representative.
1. The act of regulating or the state of being regulated.
2. A principle, rule, or law designed to control or govern conduct.
This definition is so broad as to encompass any law. For instance, is the right to free speech a regulation? Is the right to your house a regulation? Are the laws against murder a regulation? Is the Homestead Act a regulation? All of these control or govern conduct. When we are talking about regulations most people mean something like building codes or OHSA rules or the FTCs requirement that all bicycles are required to have retroreflectors on the pedals. We generally do not think of the laws against murder, burglary, or even the rules on recording title to land and houses as regulations. But if you look at these two definitions, property rights and property laws are a subset of regulations. This is clearly nonsense.
Most histories of the modern regulatory state in the US place its origin around 1900 and refer to agencies such as the Interstate Commerce Commission (whose original function was to regulate railroads), the Federal Trade Commission, the Securities and Exchange Commission, etc. This provides a clue to the correct definition of regulation and shows that we do not mean common law property rules or common law crimes when we are speaking of regulation.
According to Steve Forbes and most people when we think of a regulations we think laws and rules that interfere with the free market. Unfortunately, people use very loose definitions of ‘free market’. For instance, some people think a free market is one that has “perfect competition”, which suggests that anti-trust laws are part of the free market as might be the FTC. A better starting place to find out what is a regulation and what is a property right is the logical foundation on which this country was created – Natural Rights. Natural Rights define property rights based on the idea that if you own yourself you own the product of your labor. Thus you own land because you spent the effort to improve it, e.g., the Homestead Act. (Today most of us trade our labor for currency that we then use to purchase ownership in our house or land based on our Natural Right to contract. But the principle still applies.) Inventions are the creation of the inventor and therefore the inventor has a property right in their creation. I have created a three part test to determine whether something is a property right.
1) Does the right arise because the person created something?
2) If someone else was the creator would they have received the right in the creation?
3) Is the right freely alienable?
If the answer is yes to all three questions, it is a property right. A patent fits all three as does ownership in land. Note that taxi medallions, electrical power monopolies, and FCC licenses all have at least one no to the above definition. Thus a regulation is something that interferes with a person’s property rights, such as EPA wetland rules or the right to use your property to start a business. Other regulations, such as minimum wage laws interfere with a person’s right to contract.
A regulation is a government rule that interferes with a person’s Natural Right to property or right to contract.
Patents and NPEs do not fit that definition. This definition clearly defines that property rights are not regulations and limits regulations to true meddling in ‘free markets’.
It is generally recognized that jobs or tasks require certain skills in order for a person to competently perform them. For instance, a general practice medical doctor is not competent to perform brain surgery. This does not mean that if the general practice doctor underwent a couple of years training, they could not become competent. Competence is defined as:
b. A specific range of skill, knowledge, or ability.
(According to Free Dictionary Online)
In patent law it is generally recognized that a patent attorney needs both a strong technical background and an understanding of patent law. Patent attorneys have to take a separate bar exam on just patent law and have to prove they have taken a certain number of college level science and engineering courses. Do any of the Supreme Court justices meet this definition?
John Roberts, A.B. History Harvard College, J.D. from Harvard
Antonin Scalia, A.B. History Georgetown University and University of Fribourg, Switzerland LL.B. Harvard
Anthony Kennedy, B.A. Political Science Stanford University and London School of Economics, LL.B. Harvard
Clarence Thomas, A.B. English Literature Holy Cross College, J.D. from Yale
Ruth Ginsberg, B.A. Government Cornell University, LL.B. Columbia Law School
Stephen Breyer, B.A. Philosophy Magdalen College, Oxford, LL.B. Harvard
Samuel Alito, B.A. Princeton, J.D. Yale
Sonia Sotomayor, B.A. History Princeton University, J.D. Yale
Elena Kagan, A.B. History Princeton, M. Phil. Oxford, J.D. Harvard
Not a single Supreme Court justice has passed the patent bar and not a single Supreme Court justice has an engineering or science background. Clearly, by this standard the Supreme Court justices are in-competent to rule on patent matters.
You might argue that while the Justices do not have the required background, they are still smart enough to rule competently on patent matters. This argument also fails. No competent client or attorney would ask any of the Justices to write a claim for a patent. No patent law firm would hire any of the justices to write claims for their clients or ask them to do an infringement or clearance opinion. I think this is overwhelming evidence that the Justices do not have the practical background to rule on patent cases. This incompetence has been demonstrated in a number of recent cases. Below are just a few examples of their inability to understand patent law and technology.
*Oral Argument: Association for Molecular Pathology v. Myriad Genetics (Technical Incompetence):
The Justices made analogies to baseball bats and chocolate cookies in trying to understand this case involving genetic testing for breast cancer. No person competent in genetics would find any of these analogies helpful. Can you imagine a lecture on genetics where they attempted to use these analogies to explain what is happening in a genetic test? Clearly, the Justices do not understand the technology and are attempting to make invalid – absurd analogies in an attempt to do so.
*Mayo Collaborative Services v. Prometheus Labs., Inc. Supreme Court 2012 (Legal Incompetence):
The Supreme Court held “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 35 USC 103 states
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The Supreme Court specifically ignored the statute. The law specifically prohibits looking at each step /element of a claim separately.
This also demonstrates the Supreme Court’s ignorance of Physics. Every invention ever made involves steps (elements) that were known individually before the invention; and is subject to the laws of nature. You cannot create something out of nothing – it’s called Conservation of Matter and Energy. You cannot violate the laws of nature.
The opinion also 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. The patent statutes specifically state that patents are (have attributes of) personal property. 35 USC § 261. The Justices ignored both the Constitution and the statute.
*Bilski v. Kappos (Legal Incompetence): The Court confuses statutory subject matter 101 with Novelty 102 and Non-Obviousness 103. For instance, Justice Kennedy writes:
“In light of these precedents, it is clear that petitioners’ application is not a patentable “process. Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk: Hedging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.” p. 15. Whether Bilski claims a well known economic practice is irrelevant to a 101 analysis that is the province of 35 USC 102 & 103. This also shows that the Justices do not know how to read a claim. The claims of Bilski are related to hedging, but do not claim hedging in general. Bilski defined a system that used hedging to provide flat rate billing to small customers that could not hedge their own risks. The Justices read the claims as if they were prose, when any competent patent attorney knows that claims have to be read like an equation. Each word has to be given meaning.
*KSR Int’l Co. v. Teleflex Inc. (Legal and Technical Incompetence): The Court stated, “A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions.” P. 417. Every invention is a combination of prior art elements. The Court is ignoring 35 USC 103 see above. Every element functions as it should according to physics, it cannot violate the laws of physics.
The Supreme Court goes on to states, “In many fields there may be little discussion of obvious techniques or combinations, and market demand, rather than scientific literature, may often drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, for patents combining previously known elements, deprive prior inventions of their value or utility.” Id. At 419. (This sort of writing should get you an F in English composition 101) Almost all inventions are driven by market demand. Inventors are in the business of making money. According to the Supreme Court inventors should only get patents on inventions for which there is no demand. Do they even read their own opinions?
*eBay Inc v. MercExchange, L.L.C., 2006 (Legal Incompetence): The Court held a permanent injunction should not automatically issue as part of a judgment of infringement. A patent is a legal right to exclude, 35 USC 154, others from making, using, selling (offering for sale), or importing the invention. The Supreme Court’s eBay decision is in violation of the law 35 USC 154.
Having the Supreme Court rule on patent matters makes about as much sense as having an English literature professor (who never took any college level physics) teach quantum mechanics.
The Supreme Court in ASSOCIATION FOR MOLECULAR PATHOLOGY ET AL. v. MYRIAD GENETICS, INC., ET AL retroactively withdrew the property rights of hundreds if not thousands of inventors, by stating patents to isolated forms of DNA are not patent eligible. The relevant part of the 5th amendment states:
nor shall private property be taken for public use, without just compensation
Patents are private property, they are owned by private individuals and the statute says they have attributes of personal property. The Myriad decision is not just relevant to Myriad but thousands of patents. It was a long established policy of the Patent Office to issue patents to isolated strands of DNA. This decision changes that policy and invalidates these patents, which eliminates the patent holders’ property rights. There was not compensation, so the question is whether this is a public use? People often state that patent right revert to the public, but of course what really happens is there are no rights in the invention. The situation is roughly analogous to the EPA regulating that no building can occur on wetlands. Governmental land-use regulations that deny the property owner any economically viable use are deemed a taking of the affected property. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1982), First English Evangelical Lutheran Church v. County of Los Angeles (1987). Here the Supreme Court has denied a group of patent holders and economically viable use of their property.
These sort of broad policy changes by the courts are clearly unfair to patent owners. The patent owner who applied for a patent when it was the clear policy of the Patent Office to allow patents on isolated strands of DNA has not done anything wrong. If the policy had been different then they might of structured their claims to their patent differently or invested their efforts in other areas of invention. At the least the aggrieved patent holders should have a right to a reexamination that allows them to introduce new claims based on the Myriad decision.
There has been a lot of media attention about so called patent trolls. I am intimately familiar with these issues, but the characterization is incorrect. There are legal trolls, some of whom specialize in patents, but they prey upon the same problems that infects all of our legal system and so there is nothing unique regarding patents. As happens so often, the government creates one problem and then people see the symptom and propose more improper government policies, which will just cause more problems.
I had a small software startup that was contacted by a legal troll. The troll had selected the company because its website stated it was in a somewhat similar space to the patents they were attempting to enforce. I analyzed the claims and it was clear the company was not practicing the patented invention. When I contacted the troll they were unwilling to review the case or the claims. They did not appear to be interested in the truth. The company decided it would rather die litigating than take a license they did not require. They also worried that taking the license would make it harder to be acquired.
Another case that illustrates the point, happened before the term “troll“was invented. A patent counsel for a large Fortune 500 company received a complaint for patent infringement of over 30 patents. Under the CAFC rules at the time, the company would have to spend at least three hundred thousand dollars on opinions just to respond to the complaint. A couple of days later the troll offered to settle for about one hundred thousand dollars, knowing full well that both the costs and time constraints made this a great hold up game. The patent counsel was so pissed off about this clear extortion, that he refused to give in and found there was a cross licensing agreement that gave his company the right to use the patents. Nevertheless, this was an attempt to extort the company for a quick Christmas bonus and all that happened to the troll was they had to eat crow and some minor legal fees.
These situation arose not because of patent laws that protect the rights of inventors, but because of our overly burdensome federal litigation system and because Rule 11 sanctions are almost never enforced against legal trolls. The reality is that legal trolls have been using the complexity of the law and the absurdly lenient standard for pleading to extort money from companies since at least the 1970s. These Legal Trolls use medical malpractice, product liability, securities laws, and many others areas of law for this purpose. However government is one of the biggest legal troll of them all. They use the environmental laws to extort money from companies, OHSA rules, the IRS and many others.
In the case of medical malpractice lawsuits, 90% of those that go to trial fail. In a rational system you would expect about a 50% rate of success. Otherwise it should be in the interest of the parties to settle.
Here is an article, Annual Meeting Holdup: Securities Class Action Lawyers’ Latest Scheme, on the latest holdup innovation by securities plaintiff attorneys.
But, as I pointed out, the government is the biggest legal troll of them all. The EPA regularly demands people comply with their arbitrary ruling or face bankrupting daily fines. One example of this, Sackett v. EPA, made it to the Supreme Court. The EPA has not only given itself the ability to assess this fines separate from a court or a trail, but they have argued successfully that they do not need to get a warrant to investigate a person. This case is hardly unique. In fact EPA administrator Al Armendariz admitted the EPA purposely terrorizes companies to force compliance among subsequent targets. He compared it to the Romans, when they conquered a village they would crucify five people arbitrarily to ensure compliance.
The SEC refuses to define “insider trading.” Accusing people of insider trading has been the favorite political stepping stone for attorney generals out of New York. See Rudolf Giuliani and Elliot Spitzer. How can you be charged with a crime the government won’t define? How do you know if you violated the law? How can you have mens rea? The securities laws are just politics disguised as law – also see anti-trust laws.
Clearly, we have a problem with legal trolls not with patents. So how do we fix the problem? I will ignore how to fix the abuses of our government. First,we need to clearly define what we mean by legal troll. I would define a legal troll as any group that uses the complexity of the legal system to make a profit when they know their case is dubious. Based on this definition there are two main components: the complexity of the legal system and baseless lawsuits.
In an attempt to promote justice our legal system reduced the requirements for pleadings and provided a wide open discovery process. These are the two main reasons why lawsuits are so expensive. The requirement for a good faith investigation of the facts before filing a complaint should be made stricter. However, it is utopian thinking that judges are going to enforce this. I will propose a solution in the next section for this. The discovery process should be time limited and page limited. Discovery should not be used as a fishing expedition. Another problem is that we have an over worked Federal Judiciary. This is in part because we do not have enough federal judges and partly because we have federalized too many crimes/regulations. On the patent level we should have judges who have technical backgrounds and have passed the patent bar.
Rule 11 sanctions are supposed to prevent frivolous lawsuits, but judges almost never apply them and when they do it is so arbitrary as to appear politically motivated. I suggest that the Rule 11 type sanctions should be a private right and award. This would balance the risks of filing frivolous lawsuits. In addition we might want to consider a loser pays type rule.
We do not have Patent Trolls we have Legal Trolls. The biggest Legal Trolls of all are governments.
According to Kiwi Blog “A good move from the Gov’t on patents” there is a new Patent Bill that will prohibit patents on software. Logically, this suggests that there is something special about software that is incompatible with patents. In order to determine, we first have to have a clear understanding of what software is and what a patent is. A patent is a property right that a person earns by creating a new invention. But what is an invention? An invention is anything created by man that has an objective result. This definition clearly delineates that inventions are not things in nature or occurring naturally. An invention, also, is not everything created by man. For instance, a painting or a song is a creation of man, but they do not have an objective result. Songs and paintings fall into the category of aesthetic creations. Their goal is to elicit a subjective response and people will react differently. An invention has an objective result. For instance, a controllable heavier than air powered craft, such as the Wright brothers invented has the objective result of controllable powered flight. Software is a set of written instructions that are converted by a compiler (interpreter) into a wiring scheme that opens and closes transistors. Software that is not converted into instructions is just a bunch of bad writing.
Now that we have a clear definition of a patent and software, we can examine whether there is something special about software that would cause it to not be patentable. The written instructions of software do not have an objective result, unless they converting into a wiring scheme. Therefore, software code is not patentable. No country has patent laws that apply to software code. The way this is normally stated is that software per se is not patentable.
If this was all the New Zealand bill was proposing, we could stop here. But all indications are that the proposed law would not allow patents for inventions in which software was used to wire an electronic circuit. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into an application specific electronic circuit. If software is not patentable it leads to absurd results. For instance, if I design a pacemaker using logic circuits, it is patentable. However, if I use a microcontroller to do the exact same thing, it is not patentable.
Software per se is not patentable. Executed software is just a way of wiring an electronic circuit. Electronic circuits have objective results, are a creation of man and therefore an invention. There is no logical reason to distinguish between software-implemented inventions and other inventions. This bill is based on emotion or an anti-property rights agenda or both.
David Kelley gave a talk on Ayn Rand vs. Friedrich Hayek On Abstraction. (If you want to read Mr. Kelly’s paper on point click here) This is a very important talk and explains the difference between Austrian economists and free market (objectivists). It also helps explain why Austrian economists who say they are for free markets are against patents, which are property rights in one’s invention.
Ultimately, Hayek is a warmed over Platonist. According to Hayek our perception and reason are limited (Plato). It is this limit to reason that is Hayek’s justification for a free market. Basically, Hayek argues that because our reason is limited it is sheer folly to suggest that central planning can ever work. Rand on the other hand sees no limit to reason and notes that reason is man’s basic tool of survival. But each man must reason for them self. To force (central planning) someone to do something against their reason is immoral and eliminates the creativity and ingeniousness of everyone subject to the central planning decree. This means we have a small group of people attempting to “solve” problems instead of many people and the people making the decision are not the ones that feel it’s effects. As a result, central planning is an open loop process, which as any engineer knows is a very inaccurate process. In addition, central planning does not take all the variables into account, since only each individual can know exactly what their circumstances and needs are.
I believe Austrians gravitate to Hayek’s ideas because it saves religion (Christianity) from reason and the free market. Hayek’s ideas on the limits of reason puts him in the company of Kant, Hume and Plato. Hayek in that sense is both anti-reason and anti-science, which leaves plenty of room for religion.
It also explains why Austrians do not understand patents. Property rights to Austrians are based on social convention or utilitarianism but not based on reason. According to the Austrians we have property rights (privileges, arbitrary grants) because of tradition or because they believe (not know – reason is limited) it results in the best use of resources. As Hakek states:
[M]orals, including, especially, our institutions of property, freedom and justice, are not a creation of man‘s reason but a distinct second endowment conferred on him by cultural evolution.
Patents were once characterized as monopolies (see English history), so Austrians cannot reason out the difference between what were called patents before the Statute of Monopolies and what are patents today. For Rand, creation is the basis of property rights and all human creations start with one man’s mind. Because of this Rand made it clear patents/copyright (Intellectual property) are the basis of all property rights.
For more see Defending Capitalism: Ayn Rand vs. Hayek
More specifically on Hayek’s concept of Abstraction:
If Hayek’s ideas had any validity, then a person whose eyesight was restored after being blind from birth could immediately (visually) identify an apple or red, which we know is not true. If Hayek’s ideas were true then we would have to have some inherent understanding of the double slit experiment in quantum mechanics or the idea that time slows down as we approach the speed of light, but this is clearly nonsense.
This paper is exploratory not definitive. Comments and input is greatly appreciated. My interest in the comparison between Rand and Locke started when I wrote my book The Decline and Fall of the American Entrepreneur. My investigation was spurred on by reading the excellent book The Power and the Glory: The Key Ideas and Crusading Lives of Eight Debaters of Reason vs. Faith, by Burgess Laughlin. In my opinion, John Locke is often misrepresented by both his supporters and detractors. I admit that I do not have the time or energy to review Locke’s original writings in depth at this time. Your input is appreciated.
Charles Murray has suggested that Ayn Rand’s ideas are just a rehash of Locke, Nietzsche, and Adam Smith. I reject this out of hand. Nietzsche’s uberman influenced Rand’s fictional characters, but she rejected Nietzsche as her philosophical ideas matured. Adam Smith’s book Theory of Moral Sentiments is not consistent with Rand’s ideas at all. He wrote this book before he wrote The Wealth of Nations and the two do not appear to be entirely consistent with each other. As a result, it is hard to pin Smith down on his ethics and epistemology. The differences between Rand and Locke are more subtle.
My book mainly discusses patent law in terms of Natural Law or Locke, because that is the historical basis for the founding of the US and US patent law. Readers of my blog State of Innovation may wonder what this has to do with patent law. My answer is everything, since this is about the fundamental basis of property rights.
In my opinion all philosophers fall either into camp of Aristotle or Plato. Aristotle’s metaphysics is that we can trust our senses and there is only one universe or as Rand stated it A is A. Plato’s metaphysics is that there is more than one world and our senses cannot be trusted to understand them or that our senses only give us a vague impression of the real world. Rand and Locke are both Aristotelian in the realm of metaphysics.
Some people may object that Locke advocated there was a deity. Locke did appear to make somewhat contradictory statements on god and faith, but he was writing at a time in which you could have your head cut off for being on the wrong side of a religious debate. Locke appeared to be a deist and believed;
His philosophy on human progress proposed the following: a) human beings can progress by acquiring knowledge, b) reason and action are subject to natural law, and c) the mind (as consciousness) is subject to scientific inquiry (Smith, 1997).
A Deist believes in god or a deity that created the laws of the Universe and has no effect thereafter.
John Locke’s epistemology was Reason. Reason is the means of integrating and conceptualizing perceptions by means of logic. It is distinguished from rationalism which starts with reveled truths and then applies a logical system derived from these assumptions. This is distinguished from empiricism which holds that man’s only source of knowledge is his senses without any recourse to concepts. The logical positivists did us one favor in showing that all logical systems are based on either an assumption, such as Euclidean geometry’s idea that a straight line goes on forever and two parallel lines never intersect, or based on an observation.
Some people argue that Locke was an empiricist. Locke was attempting to use the techniques of science to analyze ethics and political philosophy. (Note that he also defined the metaphysics and epistemology used by science.) People who argue that Locke was an empiricist usually argue that modern science is based on empiricism. This is incorrect based on the definition given above. Science builds on observation, but it is highly conceptual and many discoveries in modern physics derive from following the logical consequences of theory. For instance, the Higgs Boson particle was first predicted by following the math of field theory and now may have been verified by experiment. Locke was not an empiricist either, based on the definition given above. He is widely quoted as having said “logic was the anatomy of thought”, which would be inconsistent with empiricism.
Rand’s epistemology was Reason also. One difference is Rand’s refutation of Kant’s epistemology that emotion is a valid path to knowledge and his attempts to limit reason. However, Locke came before Kant and therefore could not have commented on Kant. Ayn Rand spends a lot of time explaining how concepts are formed and how they relate to the real world or specific instances. An example is reproduced below:
The same principle directs the process of forming concepts of entities—for instance, the concept “table.” The child’s mind isolates two or more tables from other objects, by focusing on their distinctive characteristic: their shape. He observes that their shapes vary, but have one characteristic in common: a flat, level surface and support(s). He forms the concept “table” by retaining that characteristic and omitting all particular measurements, not only the measurements of the shape, but of all the other characteristics of tables (many of which he is not aware of at the time).
It is my understanding that Rand is explaining in modern language the concepts of Aristotle or refining them. This seems consistent with John Locke’s epistemology.
This is where we see the major differences between Rand and Locke. In my brief survey of Locke’s ethics, I found two competing concepts for Locke. One is his ideas about Natural Rights and the other is a hedonistic perspective on ethics. Locke’s hedonistic perspective on ethics is in conflict with Rand’s selfishness and I would suggest in conflict with Natural Rights.
Locke’s hedonistic ethical views start with the idea that people naturally want to maximize their pleasure and minimize their pain. Locke’s Natural Rights starts with the idea that moral laws are divine, but he does state these divine laws are discoverable by reason. This second part makes it consistent with his deist metaphysics. He does not seem to reconcile these two competing ethical systems. I will focus on Locke’s Natural Rights ethics.
Locke’s formulation of Natural Rights starts with his concept of man’s rights in a state of nature. In a state of nature a man owns himself. Since he owns himself he has a right to defend himself. Man also has a right to those things he creates, which is where the right to property comes from. From these concepts the moral repugnancy of slavery follows as well as most of traditional criminal law, contracts, and property law. Locke does not explicitly state that man is an end in himself like Rand, however ownership in one’s self certainly implies this. To the extent we focus on Locke’s Natural Rights, Rand and Locke are not in conflict and I would suggest Rand’s ideas are a refinement and provide a deeper insight. Like Relativity and Quantum Mechanics expand our knowledge over Newtonian physics, but are not in conflict with it.
Ayn Rand’s ethics starts with idea that human life has value and ethics is the actions necessary to allow man to live. By live she does not mean mere existence, but thriving. Everything else she derives from an evolutionary point of view. In Galt’s speech she states,
There is only one fundamental alternative in the universe: existence or nonexistence—and it pertains to a single class of entities: to living organisms. The existence of inanimate matter is unconditional, the existence of life is not: it depends on a specific course of action. . . . It is only the concept of ‘Life’ that makes the concept of ‘Value’ possible. It is only to a living entity that things can be good or evil.
From this she defines focuses on man and his unique tool of survival, which is his mind.
In order to sustain its life, every living species has to follow a certain course of action required by its nature. The action required to sustain human life is primarily intellectual: everything man needs has to be discovered by his mind and produced by his effort. Production is the application of reason to the problem of survival. (Emphasis added)
It is reason that requires an ethics of individuality, where each person’s life has value separate from the species. This is not true of other organisms.
Man’s mind is his basic means of survival—and of self-protection. Reason is the most selfish human faculty: it has to be used in and by a man’s own mind, and its product—truth—makes him inflexible, intransigent, impervious to the power of any pack or any ruler. Deprived of the ability to reason, man becomes a docile, pliant, impotent chunk of clay, to be shaped into any subhuman form and used for any purpose by anyone who wants to bother. (Emphasis added)
Thus Rand ends up with an ethics in which each individual person is their own end. The exercise of their mind is the means by which they attain values to live. In order to achieve their values they must not only think but act. In order for this to be true, man must own himself, which is the starting point of Locke. The main difference between Locke and Rand is that Rand starts with a scientific or metaphysical basis of the nature of man to derive her ethics. Locke starts with the assumption that each man owns themselves, but Rand proves why this must be true. Her starting point is that every living organism must value its life or go extinct. Note there are ethical systems that do not value human life, so this cannot be taken as a given. We will explore these more later. The second biggest difference between Rand and Locke is she shows the central place of reason and the mind in man’s existence. Evolution had not been discovered at the time of Locke, so he could not use it to develop his ethics. Another major achievement of Rand was to debunk the supposed is-ought dichotomy.
In answer to those philosophers who claim that no relation can be established between ultimate ends or values and the facts of reality, let me stress that the fact that living entities exist and function necessitates the existence of values and of an ultimate value which for any given living entity is its own life. Thus the validation of value judgments is to be achieved by reference to the facts of reality. The fact that a living entity is, determines what it ought to do. So much for the issue of the relation between “is” and “ought.”
This issue was supposedly first raised by David Hume who lived after John Locke died. As a result, this was not a problem which Locke could address. In fairness to Hume, Rand starts with one assumption or observation in order to solve this problem, mainly that a living entity has to value its own life. As I pointed out earlier it is impossible to have a logical system that is not based on at least one assumption or observation.
I have suggested that a deeper understanding of these issues can be had by understanding that evolution is the application of the second law of thermodynamics (entropy) to living organisms. Note I am not the first person to suggest that evolution and entropy are related. Applying entropy concepts to living organisms is fraught with potential logical errors. I have attempted to avoid them in my writings, but in passing these around I have found that even my most ardent supporters found them a little difficult to get through. My most well received post along this line is Sustainability isn’t Sustainable. My other posts on point can be found below.
Life is a fight against entropy. Entropy as applied to economics is the concept of diminishing returns. It shows that inventions are the only way to overcome entropy – production without invention leads to the Malthusian Trap. As a result, this idea is consistent with Rand’s idea that the mind and reason are the primary means of survival but refines this to the understanding of the critical role of inventions.
Why is this important? Because the intellectual battle today is against those people who have combined an incorrect interpretation of entropy with Kant’s emotion driven epistemology. These people do not believe human life is valuable, in fact they believe humans are evil because they believe we accelerate the entropy of the Universe. Other living species do not harness and use energy (outside their physical body) so they do not accelerate the entropy of the universe and therefore are not evil. These people advocate the death of at least five billion people as a moral good. The basis of their morality is founded on a flawed understanding of entropy and physics. For more information see The Pseudo Scientific Basis of Environmentalism. Defeating this evil philosophy intellectually is vital to anyone who values human happiness.
Locke formulation of property rights is based on the Labor Theory of Property, which is commonly stated as when you mix your labor with natural resources you obtain property rights in your creation. This has been purposely mischaracterized and attacked by Locke opponent. Adam Mossoff has an excellent paper on point entitled Locke’s Labor Lost. Locke’s concept of property is that your productive effort crates a property right in the thing you created. One problem or misinterpretation of Locke’s theory of property rights is that labor means physical labor. This is most likely a mischaracterization, but leaves open the question of whether intellectual property such as patents is property.
Rand’s theory of property rights is that they derive from your right to life.
The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave. (Emphasis Added)
But Rand’s understanding that man’s mind is the most important tool for survival causes her to put intellectual property rights as primary.
Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind. (Emphasis Added)
Ayn Rand’s more detailed understanding of man leads to the primacy of man’s mind and reason as his tool of survival. This leads to a deeper understanding of property rights and the primacy of intellectual property rights. My refinement of Rand’s ideas leads to the primacy of property rights for inventions.
Locke and Rand are not in conflict philosophically, but Rand provides a coherent ethics based on the fundamental nature of man and living organisms, which Locke did not. Rand’s main difference in her epistemology is to dispense with the need for a deity, even one whose only effect was to create the world and her tackling of Kant’s emotion is a path to knowledge. I see the relationship between Rand and Locke as the difference between Newton and Einstein or Algebra and Analytic Geometry; refinement not opposition. I believe that Rand’s ethics can be further refined by understanding how entropy and evolution are related. This leads to a slightly different understanding of property rights, but more importantly provides a direct argument against the religion of environmentalism and the related we are running out of natural resources Malthusian economic argument.
 Ayn Rand’s Critics, Capitalism Magazine, by JAMES VALLIANT, http://capitalismmagazine.com/2011/08/ayn-rands-critics/, accessed 3/20/13.
 The Empiricist John Locke, http://nmalbert.hubpages.com/hub/The-Empiricist-John-Locke, 3/18/13.
 “Concept-Formation,” Introduction to Objectivist Epistemology, 11–12
 The state of nature concept has been much maligned by Marxists and others. They have purposely distorted his argument into an anthropological statement. This clearly was not Locke’s intent and shows an intellectual dishonesty on the part of Marxists.
 For those people who do not know, Relativity and Quantum Mechanics are in complete agreement with Newtonian physics except in the realms of very fast systems, very high gravitational fields, and very small distances. This is part of how we know they are correct.
 It is surprising that Rand was indifferent on the idea of evolution. Her ethics is clearly based on the same concepts. I believe the reason for this is she was worried it would lead to erroneous ideas about Determinism.
 What Is Capitalism?” Capitalism: The Unknown Ideal, 16
 The Comprachicos,” Return of the Primitive: The Anti-Industrial Revolution, 84
 “The Objectivist Ethics,” The Virtue of Selfishness, 17
 This is a favorite argument of Christians. They believe it shows morality is impossible without god. This is inconsistent with both Locke and Rand.
 The Science of Economic Growth 1-3, http://hallingblog.com/the-science-of-economic-growth-part-1/, http://hallingblog.com/the-science-of-economic-growth-part-2/, http://hallingblog.com/the-science-of-economic-growth-part-3/; and
The Pseudo Scientific Basis of Environmentalism http://hallingblog.com/the-pseudo-scientific-basis-of-environmentalism/.
 “Man’s Rights,” The Virtue of Selfishness, 93
 Rand, Ayn, Capitalism: The Unknown Ideal, Signet, New York, 1967, p. 130.
In an opinion piece on Fox News entitled “America’s patent system is all wrong for today’s high-tech world”, Mr. Forbes argues that “patent holding entities that do not produce anything in the way of devices or technology are disrupting the free market and stifling innovation for consumers.” Patent pools were first created during the sewing machine patent wars in the 1850s. (For more information see Adam Mossoff’s excellent paper The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s. ) During the sewing machine wars it was found that overlapping patent rights made it impossible to produce the best sewing machine for the customer. As a result, a patent pool was created to clear these rights and allow manufactures to produce state of the art sewing machines. A patent pool is nothing more than a clearing house for people’s rights in their inventions, much like ASCAP works for copyrights. Patent pools allow for the efficient division of labor between inventors and manufactures and reduce wasteful litigation. In this sense they are similar to how title insurance works for “real” property. Patent pools were and are a free market device that allows for the efficient clearing of property rights by contract. Patent pools combine people’s right to their property with their right to contract. Both of which are part of a free market. It is disappointing that Mr. Forbes who styles himself a free market proponent has missed these obvious facts.
Mr. Forbes uses the standard rhetoric of the antitrust laws. These laws are not part of the free market, and were championed by people who opposed the free market and property rights, such as Teddy Roosevelt. The FTC’s attack on patent pools and licensing in the 1970s did more damage to the economy than the 911 attackers did. For more information on the FTC’s traitorous attack on US property rights see Jobs, the Economy and Patents.
The article states a number of other fallacies. For instance, Mr. Forbes repeats the idea that there were too many dubious software patents issued. Any objective study of this issue has shown that it is nonsense. For instance, see the paper Of Smart Phone Wars and Software Patent.
The article also asserts that patents that are about to expire necessarily have a lower market value. First of all the market determines the value of patents, not Mr. Forbes arbitrary dictates. Second, patents that are older and cover technology on which numerous other inventions are built are more valuable because they are building blocks. Algebra is not less valuable today than it was when it was discovered, it is more valuable because other areas of math build on that knowledge.
Mr. Forbes suggestion in his conclusion that patents are regulations shows a profound ignorance of property rights and the free market.
 My only complaint with Mr. Mossoff paper is that he suggests that a patent thicket existed. A patent thicket cannot exists in a free market, at least as the term was originally defined. There are a number of papers on point, if you want a link to them let me know.
 Real property in law refers to land and permanent structures. This is similar to the use of real in math to refer to real numbers. Imaginary numbers are real in that they exist as do patents, other intellectual property and personal property (Cars, tools, etc.).
Reason Magazine has released a video, entitled How Patent Trolls Kill Innovation. The magazine banner states that they support “Free Minds and Free Markets” but this video relies on the same irrational, emotion driven logic as the media. I cannot point out all the errors in this video, but below I will highlight some of the major points. Before I do that , let me show some of the sleazy attempts by Reason Magazine to use emotion and hidden assumptions to advance their argument, instead of reason and logic.
Emotion and Faith
*The video starts with the hidden assumption that patents are not property rights – faith not reason.
*The video uses the phrase “patent trolls” to immediately define who is right or wrong without actually proving their case – an emotional appeal.
*The video selects a small entrepreneur to narrate their story – using the typical liberal tactic of pretending this is a fight between a small virtuous entity against a big faceless entity. The reality is that so-called “Trolls” sue large entities much more often than small businesses. Emotional appeal, not reason.
*The video uses an “expert”, Julie Samuels, from a biased source, (Mark Cuban’s lobby group) who has no qualifications in the subject. She has a degree in Journalism and Law, which means she is NOT A PATENT ATTORNEY and does not have the technical skills to understand the underlying technology of patents. Faith not reason.
The video never asks if Austin Meyer did a patent search and clearance opinion before building and selling his software. You would not build a house without doing a title search to make sure you owned the land. Given Mr. Meyer’s surprise that he was being sued for patent infringement, he almost certainly did not undertake this simple due diligence step.
Using Other Peoples’ Property
Mr. Meyer complains that he may have to pay the patent holder for the life of his product. Yes, that is what happens when you use someone else’s property. This is like a steel manufacturer complaining that they have to continue to pay for coal or pay rent for a building they do not own.
Note that the underlying technology is critical to Mr. Meyer getting paid, but he doesn’t want to pay for it.
The anti-patent crowd always complains that these suits are brought in East Texas. If someone refused to pay you rent for staying in your house, would you chose the slowest court in the country or a faster court? Federal Court for the Eastern district of Texas has been one of the fastese to bring invention squatters to justice.
The video makes the implicit assumption that non-practicing entities (NPE) are evil. However, Edison was a NPE, as was Tesla, as was almost every great inventor in the last 200 years, as our most major corporations, as most of our Universities and Government labs. Our Founders looked at the issue of requiring inventors to practice their invention in order to keep their patent and rejected it. They voted for a FREE MARKET system where people could be independent inventors, just like writers do not have to be publishers in order to obtain or keep their copyrights. This is consistent with Adam Smith’s division of labor theory.
The video takes the stand that if you buy the patent rights instead of being the inventor,this is somehow evil. First, all corporations buy their patents – often by paying wages. Corporation don’t invent so they have to buy their patents. Second, we do not argue just because you didn’t build your house you cannot rent it out .
Mr. Meyer states in the video that the technology he wants to use is old, from the 80s. If this were true, Mr. Meyer would be free to use it. But, instead, he wants the updated version of the technology that ensures he gets paid, he just doesn’t want to pay for it.
The Patent Should Not Have Issued
Neither Mr. Meyer nor the so called expert, Julie Samuels, are patent attorneys. They are NOT QUALIFIED to evaluate the scope of the claims of a patent. It is interesting how lay people (I include attorneys who are not patent attorneys in this definition) believe they can just read a patent and evaluate it, but they would never try to do the same thing with a Warranty Clause in a contract or an Indemnity Clause. No one would believe a Journalism major or an attorney (non-technical) is qualified to comment on software technology; but somehow they are qualified to comment on patents on software? This is like asking a plumber to comment on the design of a Nuclear Power Plant.
Patents and the Free Market
Patents are property rights, just like a property right in a farm. The basis for all property rights is creation. Inventions are clearly creations. Property rights are part of the free market. Those countries that are the freest economically have the strongest patents laws, are the most innovative, and have the highest standards of living. REASON MAGAZINE is pushing a point of view that is much more consistent with a Marxist’s labor theory of value than Capitalism.
REASON MAGAZINE is neither promoting REASON or FREE MARKETS in posting this video.
People who believe that software should not be patentable often argue that there are only so many combinations of instructions that can be made. Since the universe of instructions is limited all possible combinations are conceivable and therefore obvious and of course each instruction acts in a predictable manner. If we used this line of reasoning for music, which only has thirteen unique notes (all of which act in a predictable manner), you would assume that over the course of history every song has been written. And yet we find that people keeping coming up with new songs. It is very rare for two songs to be the same or even similar unless the second composer had access to the first composer’s song. With so few basic building blocks, much fewer than any high level computer language, how is this possible. We hear the Free Software Priests tell us it happens on the time in the world of software. Perhaps a little math can help us unravel this conundrum. The number of possible combinations for combining thirteen notes at one time is 6.2 billion. Now it would be fair to say that some of the combinations would never be found in any musical score, but this is just for one note in time. If we assume the average song is three minutes longs at 100 BPM (Beats Per Minute), which at the lower middle range of a metronome, and a unique combination of notes is played every beat, then we end up with 1.8 trillion possible songs. It is not too surprising, given this that artists do not simultaneously create the same song and that we have not run out of songs.
This whole line of reasoning also degrades what the creator of a song does. It suggests that they just string together random notes and then decide which random group sounds is pleasing. To listen to each of these possible combinations would take 10.8 million years. Even if one in a thousand of these combinations was a useful song that would require fifty hours of listening and then having the discernment, intelligence, and diligence to pick it out of that random group. Something I bet only a skilled musician could do with any meaningful success rate. So it is clearly absurd to suggest that just because the number of unique notes in music is very limited that it takes no or even ordinary skill to create a quality song. It is even more absurd in the case of software. The number of instructions in high level software is in the hundreds or more. While each instruction may not be unique changing the variables on which it operates makes it different. So clearly software has many more building blocks. But the Free Software Priests might complain that most software is executed one instruction at a time. This is true, but even a slow processor, such as the 80386 could execute three Million Instructions Per Second (MIPS) so in comparison to the thirteen unique notes at 100 BPM we are talking about more than 1.6 million unique combination per beat. Clearly the numbers get astronomical. The Free Software Priests (FSPs) are pedaling their own Kool Aid in order to steal other people’s work or cover up their inadequacies as programmers.
PS. Chemistry is made up of only 102 elements. How long do you think it would take you to discover a simple element like methane by randomly combining elements? There are at least 108 million possible combinations and this hardly covers the problems of how to create these combinations. The FSP are not dealing in logic and reason, they are dealing in propaganda that hides their anti-property, anti-individual, anti-reason thesis.
 In one octave there are only 13 notes including sharps and flats. Other octaves are just harmonics of these notes.
It is common for people and economists to state that patents are a monopoly. Because patents are a monopoly, it is argued that they negatively affect the pace of innovation and slow down the diffusion of inventions. The only redeeming feature of patents they concede is that if provides a profit incentive to invent, but then it inhibits follow on inventions and the dissemination of knowledge. If this thesis is correct, it should be testable. Let’s test this hypothesis.
1) Countries with strong patent systems should innovate less than countries with weak patent systems.
2) Countries with strong patent systems should have slower dissemination of new technologies than those countries with weak patent system.
If PROPERTY RIGHTS
1) Countries with the strongest patent systems should innovate more than countries with weak patent systems.
2) Countries with strong patent systems should have faster dissemination of new technologies than those countries with weak patent system.
Let’s take a look at the facts, according to the World Intellectual Property Organization (WIPO), the top ten most innovation countries and the bottom 10 countries for 2012 are:
5. United Kingdom
8. Hong Kong (China)
10. United States of America
132. Syrian Arab Republic
134. Cote d’Ivoire
138. Lao PDR
In a report from National University of Singapore they show a chart of the Fraser index vs. Ginarte-Park index. The Fraser Index is a ranking of economic freedom and the Ginart-Park index is a ranking of patent strength. The chart shows an almost perfect correlation between the two. For those of you who are not familiar with economic freedom indices, there are several and they all show that economic freedom correlates positively with economic growth, wealth, education access, health, longevity, the environment, civil rights, etc.
They also had a couple of charts for the countries with the strongest patent systems for four different years and those with the weakest patent systems. I do not know all the countries that were included in this survey.
|U.S.A. 39.30||U.S.A. 39.06||U.S.A. 39.06||U.S.A. 42.75|
|Netherlands 28.20||Belgium 32.23||Belgium 36.22||Netherlands 41.36|
|Switzerland 28.12||Netherlands 31.47||Netherlands 35.22||Denmark 41.26|
|Germany 28.01||Switzerland 30.55||U.K. 33.57||Finland 41.01|
|Japan 27.14||Germany 28.73||Germany 33.14||U.K. 40.15|
|Nicaragua 2.38||Nicaragua 2.38||Guyana 3.17||Niger 5.38|
|Peru 2.22||Bolivia 2.30||Pakistan 3.17||Guatemala 5.10|
|Guatemala 1.90||Guyana 1.69||Jordan 2.95||Nicaragua 5.00|
|Guyana 1.78||Guatemala 1.50||Guatemala 2.15||Rwanda 4.64|
|Jordan 1.72||Peru 1.31||Peru 1.73||Zaire 3.51|
If we examine the first postulate, does it appear the most innovative countries have the strongest patent systems or the weakest patent system? Which countries do you think have the strongest patent systems – the USA, Singapore, Switzerland or Niger, Pakistan, Sudan? It is clear that the most innovative countries according to the WIPO survey have the strongest patent systems. If we look at the charts from the National University of Singapore (NUS) we see those countries with the strongest patent systems are clearly the most innovative. Although the WIPO data and the NUS data are from different time frames we see some overlap between those countries with the strongest patent systems (NUS) and the most innovative (WIPO) and the same is true for the weakest and least innovative.
If we examining the second postulate, does it appear that the countries with the most technology diffusion have the strongest patent systems or the weakest patent system? Which countries do you think have the most technology diffusion – the USA, Singapore, Switzerland or Niger, Pakistan, Sudan? It is clear that those countries with the strongest patents have the most technology diffusion.
The macroeconomic evidence does not support the thesis that patents are a monopoly. The data shows the exact opposite of what this theory predicts.
The empirical evidence is overwhelming that patents are a PROPERTY RIGHT not a MONOPOLY.
I have written extensively on whether the defining characteristics of a patent are consistent with the definition of a monopoly or the definition of property rights. For instance see:
This post explains the characteristics 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.
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 only way to suggest that patents are a monopoly is define “market power” so broadly that any property rights confer market power. I admit that I reject this argument. A property right is not a monopoly and this is an attempt by people with a political agenda to attack the concept of property rights.
PATENTS are PROPERTY RIGHTS under the law, by definition, and according to all statistically significant macro-economic evidence. People who suggest otherwise are pushing a political agenda or do not understand the definition of the words monopoly and property rights.
According to the New York Times Article Inventor Challenges a Sweeping Revision in Patent Law, a lawsuit has been filed to challenge the Constitutionality of the “first to file” provisions of the America Invents Act (AIA). The lawsuit was filed by Mr. Stadnyk who holds several patents related to motorcycles. He compares his fight against the AIA to the battle against Obama Care, which I believe is very appropriate. Both were large complicated pieces of legislation laden with special interest goddies. Both ignored the clear meaning of the Constitution. Given this it is surprising that Mr. Stadnyk selected an attorney who is not committed to the Constitution. Mr. Stadnyk attorney is Jonathan S. Massey, who is a protégé of Laurence H. Tribe. Mr. Tribe has been a leading advocate of the ‘living Constitution’ concept and believes the Commerce Clause is an open ended excuse for the expansion of government power. Hopefully Mr. Massey will be able to argue effectively despite these leanings. I also hope that they hire a patent attorney. As the Supreme Court has proven over a century of confused decisions, most attorneys do not understand patent law and cannot pick it up by just reading the confused decisions of the Supremes.
I and others have argued that the First-to-File (FTF) provision of the America Invents Act (AIA) is unconstitutional. For instance see First to File is it Constitutional, which is a open letter by a number of law professors. The essence of the argument is that Article 1, Section 8, Clause 8, grants Congress the power to protect inventors’ rights in their creations, not the first person to file at the Patent Office. I suspect the opponents will argue the following points:
*Standing: Mr. Stadnyk holds a number of patents, but these are not going to be effected by the AIA. Mr. Stadnyk may have filed a number of patent applications, but these are not going to be effected. If I were the opponents, I would argue that only a patent application that was denied under the first-to-file rule, but would have been issued under a first-to-invent (FTI) system would be well enough developed issue to provide standing. If they succeed with this argument it could be years before a plaintiff had standing to sue.
I think the counter argument is that any inventor whose actions have been effected (changed) because of the change in the rule should have standing. I think this may be the most difficult argument for Mr. Stadnyk to win because it will allow the courts to avoid the difficult questions presented by this suit.
*First Inventor-to-File: The proponents of the FTF system have argued that the AIA is really a first inventor to file. What does that mean? How can you be the first inventor to file? What does the word inventor mean? INVENTOR means the first person to create an invention. There is no such thing as the first inventor to file. There can only be one (one group of) inventor. All others are just re-creators. For example, if I, with no knowledge of Calculus, were to recreate it today that does not make me the discover of Calculus and the equivalent of Newton or Leibnitz. Even if my discovery is close in time to the inventor’s, I am still just a re-creator. This is no different than science or the winner of a race, or the winner of a football game. There is only one winner and there is only one inventor.
Now advocates of the AIA will argue that the first person to create an invention is not always considered the inventor under the present system. Under the rules of interferences the second person to create the invention can be considered the inventor, if they did it without any knowledge of the first creator’s work and if the first creator abandoned their efforts to perfect the invention or concealed the invention. If someone abandons an invention, then it was not created or at the least it provided no benefit to world or even the inventor. You cannot award a patent or inventorship to someone who does not tell you about their invention. In the case of abandonment, I do not see how that person can be considered an inventor. The other case is concealment. In that case, the proponents of the FTF system should argue that no patent should issue not that we should change our whole system to accommodate this very rare circumstance.
*Alice in Wonderland Argument: Proponents of the FTF system will argue that the word INVENTOR can mean anything that Congress decides it means. If that were true, why write a Constitution. IF Congress can define every word as it wishes, then it is pointless to write down a founding document. This is a nonsensical argument, but one the statists on the Supreme Court are likely to find appealing.
*Promote the Progress of Science and Useful Arts: Proponents of the AIA are likely to argue that the Constitutional purpose of a patent system is to ‘promote the progress of science and the useful arts’ and Congress can do anything to further that purpose. First of all this theory confuses the purpose of the preamble with the actual right involved. The purpose of a preamble is explanatory, but not mandatory. This is exactly the way preambles work in patent law. Second, the Constitution says the EXCLUSIVE RIGHTS of inventors. It is the only RIGHT mentioned in the original Constitution and when the founders used the word right they meant natural rights. The purpose of government is to secure these rights – see the Declaration of Independence. The purpose of government is not to promote the progress of science and the useful arts that is the result of securing the exclusive rights of inventors (and authors).
The proponents of the AIA will not admit it, but all empirical evidence shows that a FTI system is more effective at promoting science and the useful arts than a FTF system. This is not surprising since a FTI system rewards the creator not just the person who can game the system the best.
*Treaty Obligation: The advocates of the AIA will argue that our treaty obligations require the US to award patents to foreigners under the FTF system. This is true. However, treaty obligations do not trump the Constitution. We should renegotiate these treaties not trash the Constitution.
It would be nice to believe that patent law is not influenced by politics, but a century of activist Supreme Court Judges shows this is not the case. The most egregious example was the 1949 case Jungersen v. Ostby & Barton Co., 335 U.S. 560, 572 (1949) where Justice Jackson ignored the Constitution and stated that “The only valid patent is one which this Court has not been able to get its hands on.” None of the present Supreme Court Justices understands patent law as well as a first year patent law associate and so this case will probably turn more on politics than the law or logic.
The paper Illuminating Innovation: From Patent Racing to Patent War, by Lea Shaver, is a draft of an article to be published in the Washington and Lee Review, is another example of the deteriorating state of academic research. First, I will examine the primary hypothesis of the paper and second I will examine the factual errors and inherent biases of the paper.
The underlying assumption of the paper is:
For more than two centuries, U.S. patent law has assumed that patents promote innovation. Yet for all the profound impact that patent law has on industry and society, we have little empirical evidence to test this “innovation assumption.” In fact, there are good reasons to believe that patents may also impede innovation, by creating barriers to competition.
Really? How about the clear differences between countries that have patent systems versus those that did or do not. In the early 1800s the strongest patent systems in the world were in the US and England, which were the leaders of the Industrial Revolution. The Industrial Revolution was really an invention revolution as the book The Most Powerful Idea in the World: A Story of Steam, Industry, and Invention, by William Rosen documents. Why didn’t this innovation occur in Africa, or the Middle East? They did not have an anticompetitive patent system? Or even why didn’t it occur in France or Germany or Japan?
There is also strong empirical evidence that human beings did not escape the Malthusian Trap until the advent of a patent system, which are property rights in inventions. The only way to increase real per capita income is by increasing our level of technology. This has been shown by such diverse economists as Robert Solow, Paul Romer, Jacob Schmookler, and Gregory Clark. The first large group of people to escape the Malthusian Trap were the English and the Americans. Japan did not escape the Malthusian Trap until they copied the US’s patent system. For more information see The Source of Economic Growth.
Ms. Shaver completely ignores the work of economist B. Zorina Khan, who has undertaken an extensive survey of the effects of patents on innovation. But she does cite her work while ignoring its conclusions. For those interested in a true academic study of the history of patent law in the US see the book The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920 (NBER Series on Long-Term Factors in Economic Development) by B. Zorina Khan. Note I do not agree with all of Professor Khan’s conclusions, but it is an extremely well researched book.
Both the development and dissemination of technology occurs at a more rapid rate in those countries that have the strongest patent laws. The empirical evidence is overwhelming that stronger patent system results in increase innovation and wealth creation. Professor Lea Shaver’s statement that there is a lack of empirically evidence is outrageous and shows that the professor’s paper is really a propaganda piece.
The Paper: Flaws, Errors, and Distortions
This paper is so full of factual errors, distortions, and propaganda that it is impossible to point them all out or correct them. But it is necessary to point out at least some of them, so that they do not go unchallenged. These errors and distortions are pointed out in roughly the order they were brought up in Professor Shaver’s paper.
The abstract to the article starts with the provably incorrect hypothesis (see above),
Patent law assumes that stronger protection boosts innovation, yet empirical evidence to test this “innovation hypothesis” is lacking.
The article purports to use the example of the invention of the incandescent light bulb to determine if stronger patent protection boosts innovation. It explains that this is not the story of brilliant inventors and bright inventors. No its,
It is a story of corporate maneuvering and high-stakes litigation, as Thomas Edison and his competitors employed patents as weapons in their battle to dominate the electrical industry.
What does the author believe patents are for? Does she believe people collect patents like blue ribbons without any business goals? Does the author believe it is wrong for the owner of a factory use it to dominate a market? Does she understand the purpose of property rights is to enhance the owner’s ability to increase production and lower costs? In other words, does this so-called professor of law understand the purpose of property rights?
Since this statement is in the author’s introduction, it is clear that she has a bias before she has even examined the facts.
She goes on to state,
The smartphone is today’s light bulb. A complex machine, developed through the collaborative and competitive efforts of many engineers, rather than a single mythological inventor.
This shows the author’s bias against the light bulb, which she calls a “humble device.” I doubt the author could build this “humble device” with the materials that Edison had at the time. I am sure her law and sociology degrees have prepared her for building and understanding technology – not.
She also exposes her collectivist ideology when she elevates “collaborative” efforts and suggests that a single inventor is mythological.
The author proves that she does not understand property rights when she states
Patent law is a tremendously influential aspect of modern economic regulation.
Patent law is not economic regulation it is the property law of inventions. It recognizes the simple fact that but for the creator, the invention would not exist.
It is hard to believe how incredibly corrupt our academic institutions have become, but Ms. Shaver sums it up in one sentence.
Within the substantial social scientific literature employing and commenting on case study methodology, some researchers prefer case studies because of normative commitments that achieving objective, accurate explanation of complex social phenomena is unattainable or undesirable. From these researchers’ point of view, there is no “truth” in social science, only “interpretation.”
Let me translate this academic BS. Ms. Shaver is suggesting that objective and accurate explanations are UNDESIRABLE. Well we can start with your paper Ms. Shaver, it is clear that you have no interest in being accurate or objective, your conclusions are based on your feelings not on the facts. The paper and bandwidth to print your drivel is an extravagant waste of the individual human greatness that created the Internet, computers, electronics, incandescent light bulbs, and the printing press.
Ms. Shaver’s dishonesty knows no bounds. She cites Adam Mossoff’s paper on the sewing machine as support for her anti-patent tirade. Adam Mossoff discusses how the markets were able to clear the patent rights of sewing machine inventors, but Ms. Shaver pretends his article supports limiting patent rights.
Next, Ms. Shaver complains
In the case of the light bulb, these long-term dynamics included massive litigation, the consolidation of a previously competitive industry, and a half-century lull between when incandescent light technology was first patented and when it finally became widely accessible to the American public.
Ms. Shaver complains how long it took to disseminate this technology in the US. Did the electrical light technology disseminate faster in China or India or Saudi Arabia, which had did not patent rights at the time. No. In fact, this technology was disseminated faster in the USA than anywhere else in the world, which had the strongest patent protection in the world. But this does not fit Ms. Shaver’s narrative and so she ignores these clear facts.
Ms. Shaver proves her complete ignorance of both the technology underlying the incandescent light bulb and her lack of understand of the function of claims in a patent when she states,
Even today, British schoolchildren are taught that Joseph Swan, not Thomas Edison, won the race to invent the light bulb.
What children are taught is not relevant to understanding of how patent law works. There is a difference between the historian and the patent attorney. If Ms. Shaver had consulted a patent attorney, which she is not, she would have learned that Swan invented a low resistance, short lived light bulb that had no commercial application and Edison had invented a high resistance, long lived light bulb, with immense commercial potential. But I doubt Ms. Shaver, whose prelaw education was in Sociology could even understand why a high resistance incandescent light bulb was so important. For those of you who do not have a technical background a low resistance filament meant that you needed copper cables with very large diameters to even light a city block. The cost of these large copper cables meant Swan’s incandescent light bulb was limited to being a laboratory curiosity.
Ms. Shaver then makes this bewildering statement.
Once electric light was ready for commercialization, many companies competed with Edison’s in the marketplace. Compared to his rivals, however, Edison was particularly successful in litigating his patents.
Perhaps this was because Edison was the inventor of the light bulb and many other things that made it practical invention, including inventing an improved dynamo, fusing systems, electrical connectors including the standard light bulb socket still used today. Why does Ms. Shaver believe Edison invented these? So his competitors could steal his inventions? To help out his competitors? Of course, Edison litigated when his competitors stole his technology. Ms. Shaver clearly does not understand the role of property rights in free society. She also does not understand merit or cause and effect. According to Ms. Shaver, failing to share your property with people who did not produce it is anti-competitive. A phrase she uses several times in the paper.
Ms. Shaver then goes on to discuss the concept of “Patent Racing” by Mark Lemley. Professor Lemley is neither a patent attorney nor does he have a technical background. According to Mr. Shaver, Lemley shows
In case after case, Lemley’s article illustrates, multiple inventors, working on the same technological problem, have arrived at the same solution at nearly the same time.
Mr. Lemley’s lack of understanding of both the underlying technologies and the law shows he has no idea of what an invention is. His conclusions about simultaneous inventions is not supported by the facts or the literature. For more information, see the economist’s Jacab Schmookler’s book, Inventions and Economic Growth, where he examined this nonsense of simultaneous inventions.
Professor Lemley’s lack of technical knowledge leads to his lack of understanding of the difference between inventions. For instance, he does not understand the difference between a patent for a low resistance incandescent light bulb and a high resistance light bulb. He does not understand the difference between a patent on high resistance light bulb and a socket for connecting a light bulb to an electrical distributions system. According to Mr. Lemley these are all simultaneous inventions. Mr. Lemley is another complete charlatan, who pretends to undertake academic research, but is actually is a propagandist who would make Joseph Goebbels proud.
Then Ms. Shaver suggests that the invention of the light bulb was inevitable.
From the perspective of market incentives and of technological groundwork already laid, therefore, a commercially practical light bulb may have been a near inevitability.
If it was inevitable why did the invention of the light bulb occur in the US and not in France or Russian or Ecuador? Why did it occur in the nation that had the strongest patent laws protecting the rights of inventors? Ms. Shaver ignores the obvious.
Ms. Shaver’s ignorance and arrogance knows no bounds, she states:
Despite all this support in the historical record, Lemley’s theory of patent racing has been vehemently disputed by business professor John Howells and his co-author, Ron D. Katznelson. These critics specifically take issue with Lemley’s use of the light bulb as an example of incremental invention. They argue that Edison’s contribution in fact “unlocked the field,” cannot be placed on a par with contributions by any other inventor, and was deserving of a “pioneer” patent. My own closer examination of the light bulb case puts me on the side of Lemley rather than his critics.
Ron Katznelson has a PhD in electrical engineering and has been the founder of numerous, successful technology startups. Ms. Shaver has a degree in Sociology and Law and Professor Lemley also does not have a technical background. Basically Ms. Shaver and Mr. Lemley are completely unqualified to make this determination. Her opinion is without any basis. She knows this so she does not actually support her conclusion, she just asserts it.
Ms. Shaver admits that “lamp patents were not respected” but she complains about the subsequent litigation. She seems to believe that the legal system should support theft in the name of “competition.”
Ms. Shaver goes on to apply her conclusions to the smart phone industry. On the one hand she praise cooperation between competitors and on the other hand she suggests a dominate player is anticompetitive. Isn’t cooperation anticompetitive also Ms. Shaver? Once again Ms. Shaver has shown she is not interested in logic, reason, or a well functioning patent system. She is interested in using any propaganda that will stick to suggest patents are evil monopolies. Ms. Shaver complains that patents lead to monopolies, but ignores the overwhelming evidence that startups rely on patents to protect themselves from larger competitors. For instance, see Tesla whose patent on alternating current allowed Westinghouse to challenge Edison. Countries that have the strongest patent system have the most dynamic markets with new competitors challenging incumbent firms. Weak patent systems not only entrenches the large dominant companies she rails against, but destroys innovation.
This paper is a farce and Ms. Shaver is propagandist pretending to be a scholar. If Yale Law School had one shred of integrity it would fire Ms. Shaver immediately.
Illuminating Innovation: From Patent Racing to Patent War, by Lea B. Shaver, Yale Law School, Washington and Lee Review http://ssrn.com/abstract=1658643
Lea Bishop Shaver
The generally agreed beginning of section 103 is the Supreme Court case of Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851). This case first articulated the idea that an improvement that was the subject of a patent had to be more than “the work of the skilful mechanic.” The case involved making door and other knobs of all kinds of clay used in pottery, and of porcelain. The Supreme Court decision made the common error of pointing out that each of the elements in the invention were individually known.
But in the case before us, the knob is not new, nor the metallic shank and spindle, nor the dovetail form of the cavity in the knob, nor the means by which the metallic shank is securely fastened therein. All these were well known, and in common use, and the only thing new is the substitution of a knob of a different material from that heretofore used in connection with this arrangement.
Every invention in the history of the world is a combination of known elements/steps. The reason for this is Conservation of Matter and Energy – you cannot create something from nothing. This idea is implicit in 35 USC 112, which requires the inventor explain their invention so that one skilled in the art can practice the invention.
Back to Hotchkiss, the ruling states the well known idea that for an invention to be patentable, it must be more than just the work of a skillful mechanic. Today this is stated as the invention must have taken more than just the work of “one skilled in the art.” For a very interesting discussion of the history of the nonobviousness requirement see Novelty and the Hotchkiss Standard.
Note that Justice Woodberry ‘s dissent in the Hotchkiss case argued that the statute only required the invention be new and did not say anything about the work of a skillful mechanic. Was there any justification in the statute for the Supreme Court’s ruling in Hotchkiss? The 1790 Patent Act stated that the Patent Board was only to grant a patent if the invention was “sufficiently useful and important.” The patent statute of 1836 also contained a clause that said the Patent Office could deny a patent to an invention the Commissioner deemed to be “insufficiently useful and important.” However, it appears that this part of the statute was almost never invoked. Either way, the statute did not give this power to the Supreme Court or any other Court. As a result, Hotchkiss was a clear case of judicial activism. The Court just made up a requirement that was not in the statute and could not be considered just an interpretation of the law.
Why the Non-obviousness Standard is Unworkable
Words have meaning. Let’s examine the meaning of the words NOVEL and OBVIOUS in the context of statute. The key portion of the non-obviousness statute states:
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. (underlining added)
Based on the wording and the fact that section 103 was added later than the novelty requirement, logically 103 is intended to be an additional requirement above the novelty requirement. According to Dictionary.com, novelty means “of a new kind; different from anything seen or known before: a novel idea.” The non-obviousness requirement logically requires something more than an invention be novel. According to Dictionary.com, obvious means, “easily seen, recognized, or understood; open to view or knowledge; evident.” It is axiomatic to patent law that whether an invention is non-obvious, has to be determined at the time the invention was made or in other words before the invention was known. How can an invention that has not been created, be easily seen, recognized, or understood; open to view or knowledge or evident (obvious)? Clearly, an invention that has not been made cannot be open to view and how can you have knowledge of something that does not yet exist? Evident means, according to Dictionary.com, “plain or clear to the sight or understanding.” Is it any wonder that non-patent attorney judges cannot make sense of Patent Law? The law is contradictory on its face.
Is Section 103 Constitutional?
The Constitution states at Article I, Section 8, Clause 8:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The drafters of the Constitution only defined ONE RIGHT in the Constitution and that was the Right of inventors and authors. When the founders talked about ‘the right’ they meant a Natural Right. A natural right is a right that exists, whether government exists or not – of course enforcing that right is another story, which is why governments are instituted among men, see Declaration of Independence.
If the Constitution says that inventors have a right in their discoveries, the first question should be: what is an invention? Some people have suggested that an ‘invention’ can be anything that Congress decides it is. But this is clearly nonsense. If that were the case, then the Constitution would be meaningless. This is not ‘Alice in Wonderland,’ words have meaning. So what is an invention? Inventions belong to the genus or class of human creations. However, not all human creations are inventions. For instance, a painting or a musical score is a human creation, but it is not an invention. Reproduction or making another copy of something is not invention and not a creation in the sense used herein.
We need to differentiate inventions from other human creations. Inventions belong to the species of human creations that have an objective result. What do I mean by an objective result? Examples will probably be the best way to examine this. A painting is a human creation, but it is not an invention. A painting has a subjective result – namely the viewer’s reaction. Logically, all human creations either have an objective or a subjective result or goal, there is no other choice. This point can appear confusing with respect to mathematics. Does a Fourier Transform have an objective result? For patent attorneys, the requirement is commonly referred to as the invention must be ‘useful’ under 101. The synthesis of a new chemical is not patentable if the inventor cannot describe a practical use (industrial applicability) for the chemical. The same is true of mathematical formulas. The definition of an invention requires that it be useful or have, what I call, an objective result, which explains the basis of 101. A mathematical formula by itself is not useful or does not have an objective result.
An invention is a human creation, which means that a human was the creator of the invention. That person is called the inventor. Because we are discussing creation, not reproduction, to be the inventor you have to be first. That is where the Novelty (102) requirement comes from. There is nothing in the definition of Invention that implies any sort of non-obviousness requirement or ‘more than a skilled mechanic.’ Neither the Supreme Court nor Congress have the power to ignore the Constitution, which requires that The Exclusive Rights of inventors be secured. Therefore, 35 USC 103 is unconstitutional.
The origin of Section 103 was a Supreme Court case that failed to follow the law. The more than a skilled mechanic grew into the nonsense of requiring a flash of genius. The codification of this bit of judicial activism results in the non-obviousness requirement for patents. This terminology was double speak: requiring something that was unknown to be apparent. The definition of invention does not include any sort of non-obviousness requirement and the Constitution requires Congress and the Courts to uphold the exclusive rights of inventors. As a result, section 103 is unconstitutional.
Words have meanings and judicial activism has consequences. The non-obviousness standard has inhibited the creation and introduction of new technologies and therefore made us all poorer. As just one example of this see Robert Kerns, inventor of the intermittent windshield wiper. Because of the non-obviousness standard, automobile manufacturers were able to steal his invention and drag out court cases for years. Robert Kerns had a PhD. in electrical engineering and was an intelligence officer in the armed forces as a teenager. Instead of inventing or teaching, Dr. Kearns spent his life litigating against an auto industry that felt no shame in stealing his invention. Another tragic example is that of Edwin Armstrong, inventor of the superheterodyne receiver and FM. RCA’s theft of FM radio destroyed this genius to the determent of all mankind.
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