State of Innovation

Patents and Innovation Economics

What’s Wrong with Patents Today?

A recent order by the Court of Appeals for the Federal Circuit (CAFC) summarizes everything that is wrong with patent law today (and perhaps the US generally).  The CAFC in an order in Cascades vs. Epson, Sony stated “there is no inconsistency in concluding that patent rights are property and that the source of that right is a public right conferred by federal statute”  A number of things should stand out in this statement, for instance the idea that a right is granted by a federal statute.  This means are rights come from government, not as the Declaration of Independence says that they are inalienable.  If rights come from our government, then they can be taken away by the government, which means they are not “rights” but grants.  This idea goes back to the Devine Right of Kings.  The American Revolution was fought over the idea that there is no such thing as the Devine Right of Kings.  However, in the United States today it is clear that the law does not apply to the government, just like it did not apply to the King, it only applies to private citizens.  For instance, see Hillary Clinton, the IRS, Eric Holder, the NSA, the EPA, and on and on and on.

The next thing that should strike you is the phrase “public right.”  What is a public right?  A right is a moral claim to take action and in which no one can morally stop them from taking that action.  Only individuals can take action.  A group all doing the same thing is just a group of individuals in which all of them are taking action.  This nonsense of a public right goes hand in hand with group identity politics, such as women’s rights, Black rights, gay right.

Patents are issued in the name of the inventor(s) not the company employing them, because they recognize that people create inventions not entities.  The inventors legally own the invention (patent) first and then they assign it to the company.  This clearly shows that inventions are owned by the individual(s) not the public.  What is a public right anyway?  Here is how Wikipedia explains a public right.

In America, public rights, as compared to private rights, belong to citizens but are vested in and vindicated by political entities. Public rights cannot be vindicated by private citizens. A right must normally be a private right to be vindicated in court.

A patent does not and never did fit this definition.  A patent is private right and the government is recognizing that right not creating it.  A patent is not like the “right” to a trial by jury, which is not really a right but a procedural guarantee and is still not a public right according to the definition from Wikipedia.

May 13, 2017 Posted by | -Law, News, Patents | , , | Leave a comment