The Purpose of Patent Law

Posted Mar 22, 2014 23:46 UTC (Sat) by Max.Hyre (subscriber, #1054)
In reply to: US Supreme Court looks at patent trolling by giraffedata
Parent article: US Supreme Court looks at patent trolling

You've pointed out that a patent encourages inventors to tell the world what they invented, which can be a great thing. I've read that that was the original purpose of patent law.

Unfortunately, that's the stance taken by almost all commentators, but in the U.S., it's demonstrably wrong. The U.S. patent system is established by the Constitution, Article I, Section 8, clause 8: The Congress shall have power [...] To promote the progress of science and useful arts[.]
The ellipsis just skips over a bunch of powers unrelated to patents.

The period, though, indicates the end of the grant of power. However, the clause continues, with the only text in the document telling Congress how to exercise a power. Look closely, because every sentence was carefully crafted and polished to precisely define a facet of the government.

The Congress can promote progress.

Yeah, it does it by publishing methods and establishing monopolies, but establishing monopolies is not the purpose of the grant.

Any practitioner of the craft knows that software patents have done nothing to promote its progress, and in fact have held it back. Saying otherwise is, to be kind, disingenuous. Software patents do not fulfill the grant, and should be prohibited.

Some months ago, I was at the Supreme Court for the oral arguments in Molecular Pathology vs. Myriad Genetics, I asked a reporter why Molecular Pathology didn't simply assert that allowing patents on natural substances obtructs progress. He told me that one of the Court's bedrock principles was to decide cases on the narrowest-possible grounds, to minimize disruption of legal interpretations.

Unfortunately, such salami-slicing methods are counterproductive in deciding cases where the government's (in this case, the USPTO's) stance is so deeply wrong.

The question now is: What does it take to persuade the court to take the wider view in this case?

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The Purpose of Patent Law

Posted Mar 23, 2014 1:07 UTC (Sun) by giraffedata (guest, #1954) [Link] (1 responses)

You've pointed out that a patent encourages inventors to tell the world what they invented, which can be a great thing. I've read that that was the original purpose of patent law.
Unfortunately, that's the stance taken by almost all commentators, but in the U.S., it's demonstrably wrong. ...
The Congress shall have power [...] To promote the progress of science and useful arts[.]

I don't see any conflict there. First, patent law predates the US government, so the original purpose of patent law isn't defined by the US Constitution. Second, if we want to talk about the original purpose of US patent law, it's easy to claim that disclosing one's invention to others promotes science and useful arts, and that granting a monopoly causes an inventor to disclose.

Disclosing one's invention to others promotes science and useful arts because after the monopoly period, others can use the invention. And even duing the monopoly period, others can build upon the invention and, once having succeeded, work out a deal with the patent holder to use the result.

As for the rest of your comment, pointing out that the US has granted patents that don't promote science and useful arts (because there was neither a disclosure nor an invention investment that needed encouragement), I agree.

The Purpose of Patent Law

Posted Mar 27, 2014 23:53 UTC (Thu) by Wol (subscriber, #4433) [Link]

The first *modern* UK patent was, I believe, issued to encourage an inventor to disclose his invention. The invention was the "birthing paddle", which saved the lives of countless women in childbirth, but was kept as a trade secret by a family of doctors.

But patents long preceded that, and were regularly used to grant (usually undeserved) trade monopolies as favours.

Cheers,
Wol