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NathalieAriasFirstEssay 3 - 31 Dec 2019 - Main.NathalieArias
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Patent Protection: A Fallacy
-- By NathalieArias - 12 Oct 2019
Introduction
It is commonly said that “without intellectual property the proverbial starving artist would be at the mercy of giant corporations, who have existent market share and first-mover advantage” (Chopra),
Why not a link instead of a quote and an inadequate citation?
but the truth is that with them the artist is in this position. It is said that they would be starving because no one will pay them for their art since it would be free to use by everyone and free to copy, which would end in them not creating art anymore, disregarding completely free software makers which are very successful today. Hence, the solution would be to make their art not free, which is what has been done and what is shown specifically by patents. However, patent law as structured by the law is a fallacy in itself: patent’s objectives do not make sense nor if they did, are they met. Thus, laws should be changed, or the respective rights eliminated.
What does patent law have to do with art?
Patent's Objective Does Not Make Sense
On the one hand, patent law’s objective, as it is taught in law school does not make sense, because innovation is not the equivalent of a solution or a problem, but just a synonym for change (Stallman). According to the U.S.C. §101 (1988) and 35 U.S.C. §154(a)(2), Patent law refers to the invention and discovery of useful, new and non-obvious processes, machines, manufacture, composition of matter or any of their improvements. This invention or discovery may obtain a patent which will grant the holder a 20-year monopoly over the use, meaning any expression or implementation, of this invention. The goal of patents is to promote innovation by allowing the creators to benefit from their idea in a monopoly basis and, at the same time, recover the expenses incurred in research and development. However, this goal in itself does not make sense, since innovation is not a synonym for progress, which is what the U.S. Constitution states as the purpose of patent law: “to promote the Progress of Science and useful Arts” (U.S. CONST. art. I, § 8, cl. 8.). Innovation refers to change, and change can be both good or bad, depending on the impact it has and who receives it (Stallman). In history, not all innovation has been good, as shown by the many diseases created by man like the H1N1? avian flu, which had disappeared for 20 years before reemerging in 1977 due to lab experimentation (Khazan), or by the creation of the atomic bomb. Moreover, if progress were considered to be the ultimate goal, it is more likely that progress comes from a free use of innovation, where everybody is able to use what is beneficial to them and progress in that sense.
The purpose of patent law is not to secure a monopoly to inventors. It is to trade a limited-time monopoly for inventors in return for full public disclosure of the invention and a full explanation of the method for reducing the invention to practice. By eliding the purpose of securing public disclosure, the argument loses all its force: you cannot criticize the system for securing inadequate public benefit if you do not explain what the public benefit is.
Patents do not meet their goal
On the other hand, even when innovation is considered to be a reasonable goal, since every change comes with a risk, or when progress is considered to be the ultimate goal, this goal is not met by the current structure of patent law.
This is a false start. Congress is empowered "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." An end and a means of achieving it are specified as among the legislative powers of a legislature whose powers are limited. Eldred v. Ashcroft holds that Congress has plenary power to decide within that grant what does and does not promote the progress of science. Arguing that the law is not what it is, on the basis of a verbal quibble about a word ("innovation") not in the relevant material does not educate the reader.
Patent law hinders innovation because many inventors do not see the point in creating a new product or process because to create it, they might need to use someone else’s patent and they would not be able to profit from their investment. In addition, the inevitable accumulation of patents in big companies like Disney, Samsung, Alphabet and Intel scares some inventors which logically prefer to avoid innovation and prevent a lawsuit than incur in it. Moreover, patent law as structured today is not even able to promote progress since for progress, useful techniques need to be shared with those who can benefit from them and patents avoid this sharing. It is true that patents are not unlimited rights, since they are limited in time. However, during this time, mostly only the patent holder benefits from it, and, even when the patent expires, the innovation they protect cannot be implemented by others since too little information was disclosed under the patent to allow complete understanding and application of the knowledge. Thus, patent holders end up benefitting from their idea and recovering their investments and do not even allow progress to others after the expiration of the patent, since the creation is not completely disclosed to allow for its use. Therefore, no innovation or progress is achieved (Stallman).
Conclusion
In conclusion, innovation is not the goal that patents should have, but progress, since progress is what allows for the welfare of society as a whole. Moreover, patents do not promote innovation nor progress but hinder them since useful information is limited and people are not allowed to use it to improve products and services that might give them a profit. In consequence the system should change in two ways: patents should not be seen as property and they should protect society instead of a few. The creations that patents protect become part of the culture of society, of their knowledge. Thus, patents cannot be seen as property (“intellectual property”), as something with an unlimited nature that should be protected from others, because if they are seen this way, the incentive would be to keep others away from using them since the holder is the sole owner and the only one who should benefit from them (Chopra). This is what is happening today, and the result has been that power is concentrated in the few large companies that hold most of the patents. These companies cannot be seen as the ones to be protected by the law, since they have enough power to protect themselves. It is the remaining of society that should be considered by the law, because these people are the ones that are been deprived of useful information without a good underlying reason due to the lack of real purpose of these rights.
Works Cited
Why aren't these links? You are writing on the web.
- Chopra, Samir. “The Idea of Intellectual Property Is Nonsensical and Pernicious – Samir Chopra: Aeon Essays.” Aeon, Aeon, 12 Oct. 2019, aeon.co/essays/the-idea-of-intellectual-property-is-nonsensical-and-pernicious.
- Khazan, Olga. “Scientists Are Creating New, Incurable Diseases in Labs.” The Atlantic, Atlantic Media Company, 21 May 2014, www.theatlantic.com/health/archive/2014/05/when-viruses-escape-the-lab/371202/.
- Stallman, Richard. “Patent Law Is, At Best, Not Worth Keeping.” Loyola University Chicago Law Journal, 2013, doi:https://www.luc.edu/media/lucedu/law/students/publications/llj/pdfs/45_1_stallman.pdf.
- U.S. CONST. art. I, § 8, cl. 8.
I doubt there is anyone more sympathetic to the point of this
argument, and even I would not be convinced by it. A stronger
draft would explain the bargain underlying the forms of copyright
and patent Congress is empowered to make, and would recognize the
actual constitutional position. Criticism of patent law's
effects, explaining why the bargain envisioned by the law is not
fully achieved with respect to the only two industries in the
world that actually use patent law intensively, can then explain
why the 18th century goal is no longer achieved by the 19th
century instrumentation. Comparing patent law to other forms of
administrative law, which no longer use 19th century operational
mechanisms, is one place to start. Reviewing the political
economy literature on direct rewards for
invention—including some analysis of the differential
effectiveness of government rewards and monopoly property rights
in the development of pharmaceuticals themselves—can then
explain why patent law doesn't in practice today serve the goals
for which Congress was empowered to make it.
Did you mean to make the essay private? If so, remove both the "#" signs above.
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NathalieAriasFirstEssay 2 - 01 Dec 2019 - Main.EbenMoglen
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| | | Introduction
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<
< | It is commonly said that “without intellectual property the proverbial starving artist would be at the mercy of giant corporations, who have existent market share and first-mover advantage” (Chopra), but the truth is that with them the artist is in this position. It is said that they would be starving because no one will pay them for their art since it would be free to use by everyone and free to copy, which would end in them not creating art anymore, disregarding completely free software makers which are very successful today. Hence, the solution would be to make their art not free, which is what has been done and what is shown specifically by patents. However, patent law as structured by the law is a fallacy in itself: patent’s objectives do not make sense nor if they did, are they met. Thus, laws should be changed, or the respective rights eliminated. | >
> | It is commonly said that “without intellectual property the proverbial starving artist would be at the mercy of giant corporations, who have existent market share and first-mover advantage” (Chopra),
Why not a link instead of a quote and an inadequate citation?
but the truth is that with them the artist is in this position. It is said that they would be starving because no one will pay them for their art since it would be free to use by everyone and free to copy, which would end in them not creating art anymore, disregarding completely free software makers which are very successful today. Hence, the solution would be to make their art not free, which is what has been done and what is shown specifically by patents. However, patent law as structured by the law is a fallacy in itself: patent’s objectives do not make sense nor if they did, are they met. Thus, laws should be changed, or the respective rights eliminated.
What does patent law have to do with art?
| | | | | | On the one hand, patent law’s objective, as it is taught in law school does not make sense, because innovation is not the equivalent of a solution or a problem, but just a synonym for change (Stallman). According to the U.S.C. §101 (1988) and 35 U.S.C. §154(a)(2), Patent law refers to the invention and discovery of useful, new and non-obvious processes, machines, manufacture, composition of matter or any of their improvements. This invention or discovery may obtain a patent which will grant the holder a 20-year monopoly over the use, meaning any expression or implementation, of this invention. The goal of patents is to promote innovation by allowing the creators to benefit from their idea in a monopoly basis and, at the same time, recover the expenses incurred in research and development. However, this goal in itself does not make sense, since innovation is not a synonym for progress, which is what the U.S. Constitution states as the purpose of patent law: “to promote the Progress of Science and useful Arts” (U.S. CONST. art. I, § 8, cl. 8.). Innovation refers to change, and change can be both good or bad, depending on the impact it has and who receives it (Stallman). In history, not all innovation has been good, as shown by the many diseases created by man like the H1N1? avian flu, which had disappeared for 20 years before reemerging in 1977 due to lab experimentation (Khazan), or by the creation of the atomic bomb. Moreover, if progress were considered to be the ultimate goal, it is more likely that progress comes from a free use of innovation, where everybody is able to use what is beneficial to them and progress in that sense.
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>
> |
The purpose of patent law is not to secure a monopoly to inventors. It is to trade a limited-time monopoly for inventors in return for full public disclosure of the invention and a full explanation of the method for reducing the invention to practice. By eliding the purpose of securing public disclosure, the argument loses all its force: you cannot criticize the system for securing inadequate public benefit if you do not explain what the public benefit is.
| | | Patents do not meet their goal
| |
<
< | On the other hand, even when innovation is considered to be a reasonable goal, since every change comes with a risk, or when progress is considered to be the ultimate goal, this goal is not met by the current structure of patent law. Patent law hinders innovation because many inventors do not see the point in creating a new product or process because to create it, they might need to use someone else’s patent and they would not be able to profit from their investment. In addition, the inevitable accumulation of patents in big companies like Disney, Samsung, Alphabet and Intel scares some inventors which logically prefer to avoid innovation and prevent a lawsuit than incur in it. Moreover, patent law as structured today is not even able to promote progress since for progress, useful techniques need to be shared with those who can benefit from them and patents avoid this sharing. It is true that patents are not unlimited rights, since they are limited in time. However, during this time, mostly only the patent holder benefits from it, and, even when the patent expires, the innovation they protect cannot be implemented by others since too little information was disclosed under the patent to allow complete understanding and application of the knowledge. Thus, patent holders end up benefitting from their idea and recovering their investments and do not even allow progress to others after the expiration of the patent, since the creation is not completely disclosed to allow for its use. Therefore, no innovation or progress is achieved (Stallman). | >
> | On the other hand, even when innovation is considered to be a reasonable goal, since every change comes with a risk, or when progress is considered to be the ultimate goal, this goal is not met by the current structure of patent law.
This is a false start. Congress is empowered "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." An end and a means of achieving it are specified as among the legislative powers of a legislature whose powers are limited. Eldred v. Ashcroft holds that Congress has plenary power to decide within that grant what does and does not promote the progress of science. Arguing that the law is not what it is, on the basis of a verbal quibble about a word ("innovation") not in the relevant material does not educate the reader.
Patent law hinders innovation because many inventors do not see the point in creating a new product or process because to create it, they might need to use someone else’s patent and they would not be able to profit from their investment. In addition, the inevitable accumulation of patents in big companies like Disney, Samsung, Alphabet and Intel scares some inventors which logically prefer to avoid innovation and prevent a lawsuit than incur in it. Moreover, patent law as structured today is not even able to promote progress since for progress, useful techniques need to be shared with those who can benefit from them and patents avoid this sharing. It is true that patents are not unlimited rights, since they are limited in time. However, during this time, mostly only the patent holder benefits from it, and, even when the patent expires, the innovation they protect cannot be implemented by others since too little information was disclosed under the patent to allow complete understanding and application of the knowledge. Thus, patent holders end up benefitting from their idea and recovering their investments and do not even allow progress to others after the expiration of the patent, since the creation is not completely disclosed to allow for its use. Therefore, no innovation or progress is achieved (Stallman). | | |
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Works Cited | |
>
> |
Why aren't these links? You are writing on the web.
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- Chopra, Samir. “The Idea of Intellectual Property Is Nonsensical and Pernicious – Samir Chopra: Aeon Essays.” Aeon, Aeon, 12 Oct. 2019, aeon.co/essays/the-idea-of-intellectual-property-is-nonsensical-and-pernicious.
- Khazan, Olga. “Scientists Are Creating New, Incurable Diseases in Labs.” The Atlantic, Atlantic Media Company, 21 May 2014, www.theatlantic.com/health/archive/2014/05/when-viruses-escape-the-lab/371202/.
- Stallman, Richard. “Patent Law Is, At Best, Not Worth Keeping.” Loyola University Chicago Law Journal, 2013, doi:https://www.luc.edu/media/lucedu/law/students/publications/llj/pdfs/45_1_stallman.pdf.
- U.S. CONST. art. I, § 8, cl. 8.
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>
> |
I doubt there is anyone more sympathetic to the point of this
argument, and even I would not be convinced by it. A stronger
draft would explain the bargain underlying the forms of copyright
and patent Congress is empowered to make, and would recognize the
actual constitutional position. Criticism of patent law's
effects, explaining why the bargain envisioned by the law is not
fully achieved with respect to the only two industries in the
world that actually use patent law intensively, can then explain
why the 18th century goal is no longer achieved by the 19th
century instrumentation. Comparing patent law to other forms of
administrative law, which no longer use 19th century operational
mechanisms, is one place to start. Reviewing the political
economy literature on direct rewards for
invention—including some analysis of the differential
effectiveness of government rewards and monopoly property rights
in the development of pharmaceuticals themselves—can then
explain why patent law doesn't in practice today serve the goals
for which Congress was empowered to make it.
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Did you mean to make the essay private? If so, remove both the "#" signs above.
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NathalieAriasFirstEssay 1 - 12 Oct 2019 - Main.NathalieArias
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Patent Protection: A Fallacy
-- By NathalieArias - 12 Oct 2019
Introduction
It is commonly said that “without intellectual property the proverbial starving artist would be at the mercy of giant corporations, who have existent market share and first-mover advantage” (Chopra), but the truth is that with them the artist is in this position. It is said that they would be starving because no one will pay them for their art since it would be free to use by everyone and free to copy, which would end in them not creating art anymore, disregarding completely free software makers which are very successful today. Hence, the solution would be to make their art not free, which is what has been done and what is shown specifically by patents. However, patent law as structured by the law is a fallacy in itself: patent’s objectives do not make sense nor if they did, are they met. Thus, laws should be changed, or the respective rights eliminated.
Patent's Objective Does Not Make Sense
On the one hand, patent law’s objective, as it is taught in law school does not make sense, because innovation is not the equivalent of a solution or a problem, but just a synonym for change (Stallman). According to the U.S.C. §101 (1988) and 35 U.S.C. §154(a)(2), Patent law refers to the invention and discovery of useful, new and non-obvious processes, machines, manufacture, composition of matter or any of their improvements. This invention or discovery may obtain a patent which will grant the holder a 20-year monopoly over the use, meaning any expression or implementation, of this invention. The goal of patents is to promote innovation by allowing the creators to benefit from their idea in a monopoly basis and, at the same time, recover the expenses incurred in research and development. However, this goal in itself does not make sense, since innovation is not a synonym for progress, which is what the U.S. Constitution states as the purpose of patent law: “to promote the Progress of Science and useful Arts” (U.S. CONST. art. I, § 8, cl. 8.). Innovation refers to change, and change can be both good or bad, depending on the impact it has and who receives it (Stallman). In history, not all innovation has been good, as shown by the many diseases created by man like the H1N1? avian flu, which had disappeared for 20 years before reemerging in 1977 due to lab experimentation (Khazan), or by the creation of the atomic bomb. Moreover, if progress were considered to be the ultimate goal, it is more likely that progress comes from a free use of innovation, where everybody is able to use what is beneficial to them and progress in that sense.
Patents do not meet their goal
On the other hand, even when innovation is considered to be a reasonable goal, since every change comes with a risk, or when progress is considered to be the ultimate goal, this goal is not met by the current structure of patent law. Patent law hinders innovation because many inventors do not see the point in creating a new product or process because to create it, they might need to use someone else’s patent and they would not be able to profit from their investment. In addition, the inevitable accumulation of patents in big companies like Disney, Samsung, Alphabet and Intel scares some inventors which logically prefer to avoid innovation and prevent a lawsuit than incur in it. Moreover, patent law as structured today is not even able to promote progress since for progress, useful techniques need to be shared with those who can benefit from them and patents avoid this sharing. It is true that patents are not unlimited rights, since they are limited in time. However, during this time, mostly only the patent holder benefits from it, and, even when the patent expires, the innovation they protect cannot be implemented by others since too little information was disclosed under the patent to allow complete understanding and application of the knowledge. Thus, patent holders end up benefitting from their idea and recovering their investments and do not even allow progress to others after the expiration of the patent, since the creation is not completely disclosed to allow for its use. Therefore, no innovation or progress is achieved (Stallman).
Conclusion
In conclusion, innovation is not the goal that patents should have, but progress, since progress is what allows for the welfare of society as a whole. Moreover, patents do not promote innovation nor progress but hinder them since useful information is limited and people are not allowed to use it to improve products and services that might give them a profit. In consequence the system should change in two ways: patents should not be seen as property and they should protect society instead of a few. The creations that patents protect become part of the culture of society, of their knowledge. Thus, patents cannot be seen as property (“intellectual property”), as something with an unlimited nature that should be protected from others, because if they are seen this way, the incentive would be to keep others away from using them since the holder is the sole owner and the only one who should benefit from them (Chopra). This is what is happening today, and the result has been that power is concentrated in the few large companies that hold most of the patents. These companies cannot be seen as the ones to be protected by the law, since they have enough power to protect themselves. It is the remaining of society that should be considered by the law, because these people are the ones that are been deprived of useful information without a good underlying reason due to the lack of real purpose of these rights.
Works Cited
- Chopra, Samir. “The Idea of Intellectual Property Is Nonsensical and Pernicious – Samir Chopra: Aeon Essays.” Aeon, Aeon, 12 Oct. 2019, aeon.co/essays/the-idea-of-intellectual-property-is-nonsensical-and-pernicious.
- Khazan, Olga. “Scientists Are Creating New, Incurable Diseases in Labs.” The Atlantic, Atlantic Media Company, 21 May 2014, www.theatlantic.com/health/archive/2014/05/when-viruses-escape-the-lab/371202/.
- Stallman, Richard. “Patent Law Is, At Best, Not Worth Keeping.” Loyola University Chicago Law Journal, 2013, doi:https://www.luc.edu/media/lucedu/law/students/publications/llj/pdfs/45_1_stallman.pdf.
- U.S. CONST. art. I, § 8, cl. 8.
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