Tuesday, June 09, 2015

Robin Feldman on the "conservative" position on patent reform????

In February 2015, Robin Feldman and Mark Lemley put out a piece on SSRN titled Does Patent Licensing Mean Innovation? [Stanford Law and Economics Olin Working Paper No. 473 ] The article suggested licensing did not transfer technology, and IPBiz criticized the naive academic view put forth therein.

See for example
Survey evidence of Feldman/Lemley criticized; the story of Copaxone

In a June 9 post titled
Is there a conservative view on patent reform?
, Robin Feldman does not answer the question, and further states:

Imagine a candy maker who invents a new dye for candy and a doctor who later discovers that the formula is useful for treating injuries. With proper patent drafting, the candy maker will have the right to exclude everyone from using the dye in any way, and the doctor will have the right to exclude everyone from using the dye to treat injuries. These are classic overlapping patents, and neither the candy maker nor the doctor can use the dye to treat injuries without the permission of the other. The point is simply that for many reasons, patents are quite different from what one might assume, and they are a long way from real property.

Many people consider the classic patent blocking case to be the diode and the triode. Because the triode (an improvement over the diode) was in fact a diode, the first-in-time diode patentee could not use the triode (a better technology for many things) without the triode owner's permission. The triode patentee needed the diode owner's permission to practice. There was a standoff. Of course, the diode owner was free to use the technology of diodes themselves.

In Feldman's example, the candy maker presumably obtained a composition of matter patent, blocking the doctor. The doctor would need the candy owner's permission to practice his patent, or to license it. The candy owner would need the doctor's permission to practice the claims of the doctor's patent, but would be in a good position for bargaining, because the doctor was completely blocked.

**Separately, Feldman strongly disagrees with the idea that intellectual property should be considered real property:

From a Constitutional perspective, the respect for real property evidenced in Constitutional language and history is worlds apart from what is reflected in the Constitution’s intellectual property clause. The intellectual property clause gives Congress the power to grant rights for limited times in pursuit of a specific goal. This creation of a narrow public franchise for limited policy reasons stands in sharp contrast to the Framers’ conception of core private property rights, and the way in which those rights are treated in the Constitution.

In fact, in January there was an important dissent from Justices Thomas and Alito in the Teva case. The case concerned an esoteric area of patent law, but their opinion included historic perspectives that highlight the contrast between patents and property.

The Anglo-American legal tradition has long distinguished between “core” private rights—including the traditional property rights represented by deeds—and other types of rights. These other rights [include] “privileges” or “franchises” which public authorities have created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature. Notwithstanding a movement to recognize a core property right in inventions, the English common law placed patents squarely in the final category as franchises. . . (citations omitted). [from the dissent]

As the text of the dissent explained further, our own Framers adopted a similar scheme. In other words, from a constitutional perspective, patent rights simply are not analogous to property rights.

One suspects that Congressman Rohrabacher would be able to articulate the conservative position on intellectual property.


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