Patents and the Constitution

The US Constitution makes no specific mention of patents or copyrights, much less "intellectual property".
People argue about their Holy Intellectual Property as if it did, but it doesn't.

Now, intellectual property is not unique as a synthesized element of the US Constitution.

For example, privacy, in certain degrees and forms, is implied by habeas corpus, as well as by the general content and tenor of the Bill of Rights. But much of what is argued around principles of privacy goes well beyond, or even conflicts with, the Constitution.

The line item veto, which could do much to reign in legislative and budgetary bloat, is declared to be against the balance of power decreed in the Constitution, in spite of Article 1 Section 7 containing the words, "... he shall return it, with his objections to that house in which it shall have originated, ... ."

I really wish Americans would read their Constitution with as much diligence as some read the Bible (or as others read attempts at disproving the same).

This is what it says about the subject, in Section 8:

The Congress shall have power 
...
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.

It does not say anything about property. In fact, the phrase, "limited times" seems to stand against any true property right being granted against either writings or inventions. The wording suggests more of a temporary lien against the marketplace, in the economic sense of rights to the work.

And there really is still no structural or institutional aspect of existing government that properly addresses the control aspects of the rights to a work, particularly in the context of the milieu within which an inventor or author works.

And it does not say patents or copyrights. It talks about something that we have tried to address with patents and copyrights, but it does not use those terms.

Concerning patents, I would note that patents existed in Europe prior to the US Constitution, as an essential funding element of the system of nobility which was the understructure of royalistic government. And I would note that the Constitution informs us that

No titles of nobility shall be granted by the United States ...

Why does the Constitution ban titles of nobility? What abuses of power did titles of nobility allow? What extra-legal impositions of regulations did they support? What extra-legislative financial burdens did they impose?

Can I ask the same questions about intellectual property, with patent claims being used in court to reach far beyond the patented subject, far beyond the invention claimed? With improper and invalid patents being forced through an overburdened patent office? With continuances that allow effectively extending the patent forever? With lawyers willing to use the resulting ambiguities to bully potential competitors and extract excessive license fees from just about anyone?

Certain patent lawyers suggest that the current brouhaha is nothing new. They are sort-of-right. Read, for example, Edwin Howard Armstrong's history. (And then re-read about Bell, Edison, and other great American inventors.)

But past failures do not excuse continued failures.

And there is a definite difference in degree, now.

(By the way, copyright has it's own set of problems, but I don't want to argue too many adversarial positions at once here.)
Patents, at this point, have failed the Constitutional mandate. Inventors in any field bearing any sort of economic interest end up with no rights against large (yes, faceless, insensitive, and insensate) corporations.

I would like to argue that the GPL does, for software, a far better job at meeting the Constitutional mandate than the patent system. But that would be a distraction, and the suggestion that the GPL be used as a replacement for the patent system would be a bit Draconian. And lend to its own forms of power abuse.

Draconian, because, especially to the extent that an invention is not used in any standard, forced sharing does run against the principles of recognizing freedom. Stingy people are allowed to cut off their own noses to spite their own faces in a truly free world. And enforced sharing does actually tend to prevent people learning (often the hard way) why sharing is better.

Still, the GPL does provide a far better framework for standards than the current "RAND" or "FRAND" (Fair, Reasonable, And Non-Discriminator, but in whose opinion?) requirements used in practice by many standards organizations today.

The patent office is way over-worked. That's bound to lead to bad patent practice.

The lack of a proper technology database for searching for prior art is a serious failure. The patent office has begun to address that failure, but it's several decades too late, now, for software patents.

The patent office's examiners are always going to be behind the leading edge of any advanced technology. Industry will pull the best scientists out of the patent office for all reasons.

The industries have not been supporting the patent system as they should have. They should be penalized by basically shuttering all patent protection down in the field until the industries are willing to provide manpower, financial support, and the means to set up the searchable databases. Entrenched interests (think they) have no motive to support the patent system's proper functioning, and there is no other place to get the sort of expertise and funding patent examiners need.

(I should mention that the majority of the software industry, excepting the gorillas such as Microsoft, Oracle, and Apple's upper management, was happy without patents for a long time. And that could have been just fine, since software exists mostly on the mathematics side of the no-man's land between the abstract and non-patentable on the one hand, and the applied and patentable on the other.)

If there are players in a particular industry who want patents to extend into that industry, they should be first with the funding for the examiners and the libraries (and databases, now) necessary.

The funding should be required to be blind, of course. No strings attached. The patent libraries and databases must be developed in-house, by the patent office itself, to avoid conflicts of interest.

And setting up regulations to prevent examiners from being influenced by their former employers is always tricky.

Courts must not be allowed to second-guess the patent office with technically unqualified juries and judges. It is not a jury of peers when inventors and scientists come to court against each other and the jury can't understand the salient technical points. And a judge who has never written a program should recuse him or herself when asked to preside over discussions of derivation between one program and another.

(It occurs to me that we have an odd paradox. Qualification to judge requires understanding of the law. But we have too many lawyers. But we do not have enough citizens -- scientists, technologists, inventors, etc. -- with enough familiarity with law to function in a court, as judges, jurors or as witnesses. Do we need to make law a required subject in high school? Extend primary schooling two years so we can do so meaningfully?)

We have to strip the patent system way back, in the amount of money it can appear to magically generate (at the expense of the consumers in the marketplace), and in the extent of control it allows.

Ex-nihilo invention was always a conceit.

Invention is dependent on the milieu, and patent law has to quit behaving like anything is unique. Independent invention should lead to multiple persons holding the various rights, not to one person gaining exclusive rights through the vagueries of chance and timing and whatnot.

Abstract invention has to be returned to the literary sphere where it belongs. Copyright has to be satisfactory for that, or nothing. (And the US should be leading the way in extracting itself from the insanities of the Berne Convention. 70 years after the author dies is in any way temporary?)

Free society allows commentary. But I wasn't going to argue this here.

And there has to be a patent equivalent to the Library of Congress, freely searchable by ordinary people. (The Library of Congress needs a better database, too.)

Otherwise, there is no way to secure the rights of inventors to their inventions, just a holdover from medieval feudalism, and modern re-inventions of systems of nobility.

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