There is a section of the report on solutions that does try to create independent invention as evidence of obviousness. I would wonder if people on this comment section have ideas to strengthen or improve this, but this was the aim:
From the end of the report, Section A. 7. "Create new statutory language to specify that independent creation by others is evidence that the patented idea is not "non-obvious" to someone skilled in the art; if others are creating the same idea at the same time independently then this indicates the idea is obvious to someone of average skill in the art." (bottom of Page 16)
Hi, when we were putting this report together I surveyed many patent lawyers, patent expert types and tech policy people and asked them if this principle was expressed as an economic "curve." Unfortunately none of them, including myself were familiar with the Tabarrok Curve. I have read some of Tabarrok's work at one point, but never encounted his Curve. I recognize they are very similar concepts and have been considering revising the piece accordingly. Thanks for pointing it out, but wanted to clarify as it wasn't intentional.
It's a false premise to assume that without IP you would have no new inventions, I think the data is pretty solid on that point.
As for strict scrutiny, I am aware that patents are not currently under strict scrutiny (DUH), which is why I am saying the construct we use should change. Rational basis is silly, it's an extremely low barrier. Economic liberty should be protected by strict scrutiny (or something similar) across the board.
Your right to a cabin has zero limitations upon my natural rights. In a state of nature I would never have been able to take your cabin anyway. But rights to a patent directly affects my natural rights. If I want to release a smartphone I have to navigate 400,000 patents, that's a major, government imposed, restriction upon my liberty. If I use rounded rectangles or slide to unlock then that's a violation of Apple's patents. If I use one-click check out on my website, that's a violation of Amazon's patents.
Every week on Tuesday the patent office grants 6,000 things that Americans can't do, and those last for 17/20 years. I think it's pretty obvious how 380,000 patents a year directly effects economic liberty, and even individual liberty. Masnick runs a podcast, should he have to pay someone for the privilege of using that "invention." The impact upon liberty for real property versus for patents is just not even comparable. It's a silly argument (and I think you know this).
I would also refer you to Thomas Jefferson who had a good explanation of the distinction:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody." (Jefferson to Isaac McPherson http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html)
Jefferson should be read in context, as he was originally against the patent clause because he thought it dangerous, but he does a great job of distinguishing between rivalrous and nonrivalrious property within policy making contexts.
Further, the application of principles that apply to rivalrous goods are not an obvious fit to then apply to non-rivalrous goods. We protect a property right to chattel and real property in particular strongly because, in part, your receiving my chattel and real property requires my deprivation of that chattel and real property.
But in the case of patents, if I come up with the same idea at the same time, were you deprive of anything? You may not be able to earn as much money as if you had a sole monopoly, but I see little in the Patent Clause that guarantees you maximum return. So enforcing statutorily created property rights for patents as a regulation means that our liberty, specifically our natural rights to engage in trade and business, is inherently violated or abridged. In contrast, we never had the liberty to take someone else's house to begin with.
In other areas of law when we violate someone's natural rights, such as limiting someone's right to speech, that is done with "strict scrutiny" requiring it be narrowly tailored for a compelling governmental interest. Would patent policy pass a strict scrutiny (or similar) test?
There's a lot that's inaccurate and misleading information here, but just as a clarification.
If patents limit liberty, in fact quite severally so, then we can agree that that limitation should be done when it's most beneficial for its intended purpose, with minimal costs to society as a whole. Which is to say, patents can incentivize innovation, but also reduce innovation when wrongfully granted or with poor policy. This is a typical regulatory type policy analysis. The regulatory anlysis is generally inappropriate in the context of real and chattel property because granting permanent rights to chattel and real property have no discernable effect upon others.
My right to a house in the woods, doesn't limit your right other than your ability to use my house. This isn't the case with 380,000 patents which can affect all of us.
When a property interest is created through statute, it's effectively a form of regulation. That regulation must generally be done for the public interest, in patents cases to "promote the progress of the sciences and useful arts."
The property rhetoric is inaccurate and unhelpful, because we don't grant people rights to real property or chattel property because it's good for the public, but because people own their own property. So there is a big difference between property interests created through statutes, like spectrum auctions, taxi medallians, fisherman catch-shares, and patents/copyright, and real property.
This difference is loosely the difference between regulation and free market oriented policy. This is embodied in the terminology of monopoly. While monopoly now has a different meaning based upon economics, it's an important distinction, especially to the Founders. Especially given that Adam Smith explained that monopolies including patent/copyright are not free market (but are useful).
Once we conclude that patents are a form of regulation, that takes effect through the granting of a property interest, we need to ask what would an optimal system of regulation look like to solve a market failure. This is why property based rhetoric is unhelpful, granting real and chattel property rights has minimal or no effect upon others liberty and freedom. But if you imagine a world where EVERYTHING is patented, forever, that's a world of zero freedom and liberty. You would have to get permission to turn on your laptop, to sell t-shirts, to send an e-mail etc. So obviously patents can limit liberty, the question is when is that limitation limited enough but also beneficial enough. This is not a pro/con analysis that we do with actual property.
I haven't read the full opinion to be honest. But the Supreme Court has pretty regularly said that patents are not the same as property. I cite to a few cases, but it's not cherry picking there are 100's of them, the Supreme Court specifically refers to patents as monopolies 100's of times in majority opinions.
In that segment you pulled, they are still actually not saying that patents are necessarily property - they are saying that patents operate as an exclusive property right. The distinction is this, when the govt gives taxi medallians, it is a form of property, it is alienable (you can sell it), but clearly that property right is created through statute so it's also regulation. It's not a "natural right" to property. Similarly, patents are created by statute.
Now that holding relied upon the idea that removing or reducing patents requires just compensation under Takings Clause. One view of the Takings Clause is that it's about expectations, so even taking away a taxi medallians medallian should be compensated if they paid a market value for that good.
As for what the Court said, I'm an originalist, so if a Court in 2015 says something dumb I kind of shrug my shoulders.
Here's one case specifically on copyright that makes a similar conclusion, Feist v. Rural:
"The limited scope of the copyright holder's statutory monopoly. . . reflect as balance of competing claims upon the public interest. . . The primary objective of copyright is not to reward the labor of authors, but 'to promote the progress of science and useful arts."
And on patents: "The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility." Brenner v. Manson (1966)
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Re: Obvious when you think about it.
There is a section of the report on solutions that does try to create independent invention as evidence of obviousness. I would wonder if people on this comment section have ideas to strengthen or improve this, but this was the aim:
From the end of the report, Section A. 7. "Create new statutory language to specify that independent creation by others is evidence that the patented idea is not "non-obvious" to someone skilled in the art; if others are creating the same idea at the same time independently then this indicates the idea is obvious to someone of average skill in the art." (bottom of Page 16)
Re:
Hi, when we were putting this report together I surveyed many patent lawyers, patent expert types and tech policy people and asked them if this principle was expressed as an economic "curve." Unfortunately none of them, including myself were familiar with the Tabarrok Curve. I have read some of Tabarrok's work at one point, but never encounted his Curve. I recognize they are very similar concepts and have been considering revising the piece accordingly. Thanks for pointing it out, but wanted to clarify as it wasn't intentional.
It's a false premise to assume that without IP you would have no new inventions, I think the data is pretty solid on that point.
As for strict scrutiny, I am aware that patents are not currently under strict scrutiny (DUH), which is why I am saying the construct we use should change. Rational basis is silly, it's an extremely low barrier. Economic liberty should be protected by strict scrutiny (or something similar) across the board.
Your right to a cabin has zero limitations upon my natural rights. In a state of nature I would never have been able to take your cabin anyway. But rights to a patent directly affects my natural rights. If I want to release a smartphone I have to navigate 400,000 patents, that's a major, government imposed, restriction upon my liberty. If I use rounded rectangles or slide to unlock then that's a violation of Apple's patents. If I use one-click check out on my website, that's a violation of Amazon's patents.
Every week on Tuesday the patent office grants 6,000 things that Americans can't do, and those last for 17/20 years. I think it's pretty obvious how 380,000 patents a year directly effects economic liberty, and even individual liberty. Masnick runs a podcast, should he have to pay someone for the privilege of using that "invention." The impact upon liberty for real property versus for patents is just not even comparable. It's a silly argument (and I think you know this).
I would also refer you to Thomas Jefferson who had a good explanation of the distinction:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody." (Jefferson to Isaac McPherson http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html)
Jefferson should be read in context, as he was originally against the patent clause because he thought it dangerous, but he does a great job of distinguishing between rivalrous and nonrivalrious property within policy making contexts.
See above comment, I already addressed several of your points before you posted.
Further, the application of principles that apply to rivalrous goods are not an obvious fit to then apply to non-rivalrous goods. We protect a property right to chattel and real property in particular strongly because, in part, your receiving my chattel and real property requires my deprivation of that chattel and real property.
But in the case of patents, if I come up with the same idea at the same time, were you deprive of anything? You may not be able to earn as much money as if you had a sole monopoly, but I see little in the Patent Clause that guarantees you maximum return. So enforcing statutorily created property rights for patents as a regulation means that our liberty, specifically our natural rights to engage in trade and business, is inherently violated or abridged. In contrast, we never had the liberty to take someone else's house to begin with.
In other areas of law when we violate someone's natural rights, such as limiting someone's right to speech, that is done with "strict scrutiny" requiring it be narrowly tailored for a compelling governmental interest. Would patent policy pass a strict scrutiny (or similar) test?
There's a lot that's inaccurate and misleading information here, but just as a clarification.
If patents limit liberty, in fact quite severally so, then we can agree that that limitation should be done when it's most beneficial for its intended purpose, with minimal costs to society as a whole. Which is to say, patents can incentivize innovation, but also reduce innovation when wrongfully granted or with poor policy. This is a typical regulatory type policy analysis. The regulatory anlysis is generally inappropriate in the context of real and chattel property because granting permanent rights to chattel and real property have no discernable effect upon others.
My right to a house in the woods, doesn't limit your right other than your ability to use my house. This isn't the case with 380,000 patents which can affect all of us.
When a property interest is created through statute, it's effectively a form of regulation. That regulation must generally be done for the public interest, in patents cases to "promote the progress of the sciences and useful arts."
The property rhetoric is inaccurate and unhelpful, because we don't grant people rights to real property or chattel property because it's good for the public, but because people own their own property. So there is a big difference between property interests created through statutes, like spectrum auctions, taxi medallians, fisherman catch-shares, and patents/copyright, and real property.
This difference is loosely the difference between regulation and free market oriented policy. This is embodied in the terminology of monopoly. While monopoly now has a different meaning based upon economics, it's an important distinction, especially to the Founders. Especially given that Adam Smith explained that monopolies including patent/copyright are not free market (but are useful).
Once we conclude that patents are a form of regulation, that takes effect through the granting of a property interest, we need to ask what would an optimal system of regulation look like to solve a market failure. This is why property based rhetoric is unhelpful, granting real and chattel property rights has minimal or no effect upon others liberty and freedom. But if you imagine a world where EVERYTHING is patented, forever, that's a world of zero freedom and liberty. You would have to get permission to turn on your laptop, to sell t-shirts, to send an e-mail etc. So obviously patents can limit liberty, the question is when is that limitation limited enough but also beneficial enough. This is not a pro/con analysis that we do with actual property.
I haven't read the full opinion to be honest. But the Supreme Court has pretty regularly said that patents are not the same as property. I cite to a few cases, but it's not cherry picking there are 100's of them, the Supreme Court specifically refers to patents as monopolies 100's of times in majority opinions.
In that segment you pulled, they are still actually not saying that patents are necessarily property - they are saying that patents operate as an exclusive property right. The distinction is this, when the govt gives taxi medallians, it is a form of property, it is alienable (you can sell it), but clearly that property right is created through statute so it's also regulation. It's not a "natural right" to property. Similarly, patents are created by statute.
Now that holding relied upon the idea that removing or reducing patents requires just compensation under Takings Clause. One view of the Takings Clause is that it's about expectations, so even taking away a taxi medallians medallian should be compensated if they paid a market value for that good.
As for what the Court said, I'm an originalist, so if a Court in 2015 says something dumb I kind of shrug my shoulders.
Here's one case specifically on copyright that makes a similar conclusion, Feist v. Rural:
"The limited scope of the copyright holder's statutory monopoly. . . reflect as balance of competing claims upon the public interest. . . The primary objective of copyright is not to reward the labor of authors, but 'to promote the progress of science and useful arts."
And on patents:
"The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility." Brenner v. Manson (1966)