State of Innovation

Patents and Innovation Economics

Explaining Patent Law Through the Lens of Natural Rights

For engineers and scientists it is easier to understand the major concepts of patent law from the perspective of natural rights, since it is consistent with their scientific training.  Natural rights and science share the assumptions that the world is comprehensible and that reason plus observation can be used to understand how nature operates.  A third assumption needed for this analysis is that a person owns themselves.  This assumption is consistent with John Locke’s conception of natural rights.

Real Property

Property law results from the analysis that if a person owns themselves, then they own the product of their labor.[1] An example from United States history is the Homestead Act.  The concept behind the Homestead Act is that land is not owned by anyone until it is improved by a person’s labor.  Once the person has improved the land, then they are the owner.  Similar concepts are used to define who owns a wild animal.  Once a person owns property they can trade if for other property and this is the basis of a market economy.

It is interesting to note that the natural rights labor theory of property explains why slavery is immoral.  If you own yourself, then no one else has the right to own you.  It also explains why murder and manslaughter are immoral, why stealing is immoral, why assault and battery are immoral and why we have laws against all these actions.  In all these cases you are either violating a person ownership in themselves or their ownership in property.  The natural rights labor theory defines how property should be allocated and how people come into possession of property morally and legally.  The labor theory of property explains all of our basic criminal laws and property laws.

Trade Secrets

So how does natural rights apply to patent law?[2] Since you own your labor, you own both your mental and physical labor under natural rights.  Clearly, you cannot be forced to divulge the secrets of your mind, which leads to the idea of trade secrets under the law.  You can bind other people to keep a trade secret using contract law, which is a legal promise to do something.  Since you own yourself, you have a right to bind yourself legally to a promise you make, so contract law is consistent with natural rights.  As a result, it is possible to bind people to a trade secret.

Patents allow you to disclose your idea and still keep an ownership right in the invention.  Is patent law consistent with natural rights?  Some people argue that patents are not consistent with natural rights, since once an invention is disclosed it requires force to keep other people from making, using, or selling your invention.  However, this is no different than real property rights.  In order to keep someone from using you land, once you have improved it, requires force against those that would steal your property also.

Novelty

Similar to property law, if you are not the first one to improve or create an invention then you cannot have property rights in the invention.  This is explains the novelty[3] requirement for patent law.  For more information on the novelty requirement see Understanding Patent Novelty.   In order to be the inventor you have to be first.  Some critics complain that this is unfair when someone else later independently creates the same invention.  However, independent later invention does not add to the store of human knowledge.  If I were to conceive special relativity without any knowledge that Einstein had already discovered special relativity, this would not make me the discoverer of special relativity.  I did not add any information to the store of human knowledge, by my independent discovery.  The same is true of inventors, just because someone independently comes up with an idea after the inventor, does not make them an inventor.  An inventor is the person who adds to the store of human knowledge.  Being second, even without knowing that you are second does not add to the store of human knowledge or make you an inventor.  The patent laws require the inventor to be the first in the world to create the invention.

Utility

An invention has to be useful[4] in order to obtain a patent.  This follows from the concept that you obtain property rights because of the labor you exert.  Labor means useful effort, not just random actions or thoughts.  If an invention is not useful, it is just a random collection of items.

Description

Since you own the product of your mind then you have a natural right to your invention or a natural right to a patent.  In order to secure that right, you have to apply for title to the invention.  This is similar to the Homestead Act, which required an application for title (patent) to the land.  In order to obtain title to an invention you are required to apply for a patent.  The patent application requires that the inventor describe the invention in enough detail that one skilled in the art is able to practice the invention.[5] This requirement is necessary to determine that the inventor was in possession of the invention when they applied for the patent.  This is similar to property law where the owner has to show possession of the land (animal) and improve the land in order to obtain title.

Claims

The patent must include claims that define what the inventor considers his invention.[6] This is necessary for the public to know what area of technology is owned by the inventor and serves the same function as the metes and bounds (boundary) of title to land.  Without this notice function, it would be unfair if someone accidentally trespassed (infringed) on your property and was required to pay damages for this trespass.  Claims describe a novel combination of elements and connections.  For instance, a bicycle would be described as a combination of a frame, connected to wheels by axles and a transmission system between one of the wheels and set of pedals.  Under patent law your invention is defined by the “claims.”  A claim is a written definition of your invention, such as the description of a bicycle above.  Under patent law your invention is infringed by any product (process) that includes all the elements and connections in your claim arranged as in your claim.

Publication – Notice & Dissemination

Historically patents have been published upon allowance of the patent application.  This allows other people to know what is the inventor’s property, which is necessary for the public to know when they are trespassing on the inventor’s property.  In addition, the publication of the invention increases the store of human knowledge.  Commonly, the publication of how to practice the invention is considered the trade for obtaining a patent instead of relying on trade secret law.  This is commonly referred to as the social contract for patents, which requires the inventor to tell the public how to practice the invention in return for patent rights. It follows from natural rights that in order for a person to be convicted of trespass they have to know that they were trespassing on another’s property.  In the case of patents, this requires publication of the patent application.

Statutory Bar

It is necessary to apply for a patent within one year of publicly disclosing or selling your invention in the US.  If you were allowed to apply for a patent years after disclosing the invention, it would be unfair to your competitor.  They might invest millions of dollars to make a product incorporating your invention and then years later you would sue them for infringement.  Since they would not have had notice of your property rights in the invention, they could not know that were trespassing on your property.

Best Mode

The patent laws also require that the inventor describe the best mode of practicing the invention.[7] What does the best mode mean?  In the case of Edison’s light bulb it means that you are required to describe that creating a vacuum inside the glass bulb makes the light bulb lasts significantly longer.  Failure to describe the best mode means that you have failed to describe you invention fully and is a violation of the social contract.

Obviousness

Patent law also requires that claims be nonobvious in addition to being novel.  I do not believe that the nonobviousness requirement of patent law is supported by natural rights.  However, under the present law this is an additional requirement for obtaining a patent.  The nonobviousness requirement (“inventive step” in Europe) has caused all sorts of mischief by the courts.  For more information see Understanding the Nonobviousness Requirement and Obviousness – Flow Chart.

These are the major concepts of patent law.  These concepts are particularly important for inventors to understand when applying for a patent.  Note this post is not arguing that patent law was historically derived from natural rights, however Professor Adam Mossoff’s paper shows that natural rights theory did play a role in the development of patent law in the United States.[8]


[1] Labor means productive effort see Mossoff, Adam, “Locke’s Labor Lost” University of Chicago Law School Roundtable, Vol. 9, p. 155, 2002, (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=446780).

[2] Mossoff, Adam, “Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ‘Privilege’ in Historical Context”, Cornell Law Review, Vol. 92, p. 953, 2007, MSU Legal Studies Research Paper No. 03-21, (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892062##).

[3] 35 USC 102

[4] 35 USC 101

[5] 35 USC 112, first paragraph

[6] 35 USC 112, second paragraph

[7] 35 USC 112, first paragraph

[8] [8] Mossoff, Adam, “Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ‘Privilege’ in Historical Context”, Cornell Law Review, Vol. 92, p. 953, 2007, MSU Legal Studies Research Paper No. 03-21, (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892062##).

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December 4, 2009 - Posted by | -How to, -Philosophy, Patents | , , , , , , ,

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