-- Some argue, crankishly, that disclosure is the only purpose of patent law --
Within a post related to the "purpose" of the patent system, Stephan Kinsella writes:
Now, in my view, to speak of “the purpose” of a statute is a confusion: statutes are cobbled together artificial legislative schemes, usually the result of many compromises. Congress has no “intent” or “purpose”; it’s composed of individual legislators who have their own motivations and purposes. A given legislator may have various purposes, including: rewarding special interest groups to increase the chance of campaign contributions, and so on. But we can hold a law up to its stated purpose, even if the real purposes of the legislators is different.
That there may be many subjective intents of legislators does not negate the presence of an objectively determinable functional analysis. The patent statute gives a right to exclude in return for disclosure. That's it.
Innovation produces a change in the way we live. Most patents don't yield innovation. Thus, it's hard to see the purpose of the patent system as one which incentivizes innovation. An issued patent gives an inventor a certain status in the marketplace. Innovation comes later.
***UPDATE. On 4 Jan 2012.
Relevant to the comment below and contrary to the assertion therein, IPBiz DID LINK to the Kinsella post containing the Kinsella quotation. Other than that, Kinsella's ramblings speak for themselves.
The functional outcome of US patent law is: in return for disclosing an enabled invention which is useful, new and not obvious, an applicant might get a right to exclude. That's all there is. The successful applicant, with the right to exclude, enters the marketplace and tries to make deals. Maybe the invention leads to innovation, maybe it does not. Most inventions do not change the way we live, so they are not properly termed innovations.
As to subjective intent of legislators, one doubts Congressman Waxman ever thought Hatch-Waxman would be used in the way it currently is, as to the six-month period of exclusivity.
Now, in my view, to speak of “the purpose” of a statute is a confusion: statutes are cobbled together artificial legislative schemes, usually the result of many compromises. Congress has no “intent” or “purpose”; it’s composed of individual legislators who have their own motivations and purposes. A given legislator may have various purposes, including: rewarding special interest groups to increase the chance of campaign contributions, and so on. But we can hold a law up to its stated purpose, even if the real purposes of the legislators is different.
That there may be many subjective intents of legislators does not negate the presence of an objectively determinable functional analysis. The patent statute gives a right to exclude in return for disclosure. That's it.
Innovation produces a change in the way we live. Most patents don't yield innovation. Thus, it's hard to see the purpose of the patent system as one which incentivizes innovation. An issued patent gives an inventor a certain status in the marketplace. Innovation comes later.
***UPDATE. On 4 Jan 2012.
Relevant to the comment below and contrary to the assertion therein, IPBiz DID LINK to the Kinsella post containing the Kinsella quotation. Other than that, Kinsella's ramblings speak for themselves.
The functional outcome of US patent law is: in return for disclosing an enabled invention which is useful, new and not obvious, an applicant might get a right to exclude. That's all there is. The successful applicant, with the right to exclude, enters the marketplace and tries to make deals. Maybe the invention leads to innovation, maybe it does not. Most inventions do not change the way we live, so they are not properly termed innovations.
As to subjective intent of legislators, one doubts Congressman Waxman ever thought Hatch-Waxman would be used in the way it currently is, as to the six-month period of exclusivity.
posted by Lawrence B. Ebert at 7:12 PM
1 Comments:
My post, which you didn't link to, is here: http://c4sif.org/2010/12/the-purpose-of-patent-law/
YOu say: "That there may be many subjective intents of legislators does not negate the presence of an objectively determinable functional analysis."
This is a bit too scientistic--taking an engineering or natural sciences approach to a normative discipline, which usually leads to error. For anyone who mistakenly thinks such arbitrary legislative decrees can have an objective or "functional" meaning, I suggest you read John Hasnas's classic paper, The Myth of the Rule of Law. http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
"The patent statute gives a right to exclude in return for disclosure. That's it."
But the patent "statute" is not isolated. The "law" is what legal rules are enforced in society, and that is a result of the actions of the courts and the legislature, in our system. Courts recognize the incentive effect as do legislators and other policy makers, and it is a common argument in favor of the patent sytem. But I am glad you acknowledge that the patent system does not stimulate innovation:
"nnovation produces a change in the way we live. Most patents don't yield innovation. Thus, it's hard to see the purpose of the patent system as one which incentivizes innovation."
That helps undercut one common argument given by pro-patent people.
So then you are left with incentivizing disclosure as the purpose of patent law. But of course it doesn't do this very much, since most things disclosed by patent applications would have been disclosed anyway by virtue of selling products embodying the idea; and for really valuable things that can be kept as trade secrets, they are still kept as trade secrets. So we hand out these monopolies and their accompanying huge cost to the economy, in exchange for basically nothing. As Alan Devlin notes in the paper I linked to:
"To a significant degree, inventions
of the kind that are appropriate for patent protection are self-revealing. Disclosure comes hand-in-hand with many patent grants. Of course, the extent to which different inventions are self-revealing surely occupies
a spectrum.92 But the truth remains that, other things being equal, innovators patent inventions that they believe are vulnerable to
reverse engineering. This is true even for some inventions that are not readily self-revealing. If the expected return from trade secret protection exceeds that available through the patent system, a rational inventor will adopt the former course. Thus, the concerns of many commentators that a patent system without disclosure would cause information to remain hidden indefinitely are misplaced.93
"Innovation produces a change in the way we live. Most patents don't yield innovation. Thus, it's hard to see the purpose of the patent system as one which incentivizes innovation."
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