A Modest Patent Proposal

By Raymond Van Dyke
December 17, 2017

A rich and cynical industry captain takes advantageWith homage to Jonathan Swift (born 350 years ago this month) and his eloquent satires, it is a melancholy object to many companies merely wanting to do business and individuals merely wanting to copy that they encounter patent, trademark and copyright owners standing in the way, blocking these companies from moving forward, and demanding money. Indeed, these multitudinous intellectual property holders all have their hands out and companies and people now have to carefully steer clear lest they fall victim to the demands of these predators.

Ideas nowadays are a dime a dozen and companies need to avoid all these patentees with their hands out. Also, all people should get the benefit of these ideas as soon as possible, as cheaply as possible, nay for free, the innovator patentees be damned. I think it is agreed by all parties that this prodigious number of patentees has created the deplorable state of the union, and a solution that is fair, cheap and easy of making things simpler for companies to operate, would help the public welfare and preserve the nation.

I am assured that most patents have little or no value and are not a salable commodity. I shall now, therefore, humbly propose my own thoughts, which I hope will not be liable to the least objection. I have been assured by a knowing Englishman of my acquaintance in Washington, DC, that patents are useless to society and that all patentees are but greedy monopolists, whether individuals, universities or corporations. And I make no doubt that patents are worthless to the world as well, who, of course, should see things our way.

I do, therefore, humbly offer it to public consideration that of the hundreds of thousands of patents awarded yearly, all be dedicated to the public, and all patents granted thus far be abrogated and the inventors flogged for their insolence in filing for a patent. Likewise, I humbly propose that all intellectual properties be forbidden, i.e., copyrights, trademarks and trade secrets as well, further benefiting the common weal and augmenting the Commons. As with patents, people should be able to have all songs and movies at their whim, and use whatever logos and trade secrets with impunity. Indeed, we should all be able to download and copy and pirate as we wish. Content owners who think otherwise should be fined and even imprisoned for their arrogance of creative expression and claims to ownership.

Now, there may be some naysayers out there who say that taking such measures would be harmful  and that innovators would be less likely to innovate, thereby depriving the world of many important, perhaps critical, technological advancements. That, as Ayn Rand proclaimed, these takings would be to the detriment of all. Perhaps, but free is free, and people with good ideas should just share willingly, considering it their societal duty to aid their fellow man and benefit the common weal in all ways with no compensation whatsoever.

Similarly, some say that artists should not allow their fans to freely copy the latest songs and movies because this would remove the incentive to create. But, people create all the time and should just learn to share their creations with all and for all. Likewise, the argument against businesses just letting others use whatever logos or trademarks is that this would create chaos and confusion in the market place. Poppycock. Let the buyer beware is the mantra. Coke is Coke, and Lipitor is Lipitor, whoever makes it.

Sadly, this satirical homage to Swift has currency in this trying legal environment. The Federal Reserve Bank even published a study advocating the dismantlement of the U.S. patent system some years back, and many large tech companies would consider this acceptable – efficient infringement is not enough! The America Invents Act (AIA) has laid waste many of the advantages of being an innovator, but the Supreme Court is currently considering the constitutionality and propriety of some of the more troublesome aspects of the AIA.

Just as Swift’s solution to the crises of his day was abhorrent, i.e., eating the children of the poor for nourishment, eating the issue of our Founders is also abhorrent, as well as ill-advised. Our Founders recognized the value of patent and copyright systems, and inculcated this philosophy into the Constitution itself – and our nation has benefited thereby. Likewise, trademarks provide considerable benefits to us all. A societal reward for innovation and creativity is a small price to pay to assure our greatness for generations to come. Rewarding individual creators is key to our nation’s success. Yet, the patent system is in the midst of a great recalibration at present, with Congress and the Press aiding and abetting some corporations in the destruction of the patent system, protecting the corporate bottom line over creativity.

 

The Author

Raymond Van Dyke

Raymond Van Dyke has been an intellectual and technology attorney and consultant for over 25 years, specializing in IP procurement, prosecution, IP portfolio building and management, licensing, legislative advocacy and expert witnessing. He is licensed to practice law in Washington, DC, Maryland, New Jersey, New York, Texas, and the Patent & Trademark Office of the United States. He is also admitted to practice before the Supreme Court of the United States, the Court of Appeals for the Federal, Second, Third, Fourth and Fifth Circuits, as well as the Federal Court of Claims and the Court of International Trade. For more information or to contact see his profile at Van Dyke Law.

The views expressed in the article are his own and not those of his clients or organizations.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 28 Comments comments.

  1. Jason Milk December 17, 2017 1:19 pm

    So you say;

    “free is free, and people with good ideas should just share willingly, considering it their societal duty to aid their fellow man and benefit the common weal in all ways with no compensation whatsoever.”

    How about you share you house, car, and share you clothes with others, consider it your social duty to aid those that are not as fortunate as you and will be helping others to move forward, whats your house address?

    I know your answers will be NO! because you worked hard for your home and car and clothes so its your property, funny its Not OK to use your property for FREE but its OK to take an inventors property. Come on give your head a shake will you.

  2. Michael Clendenin Miller December 17, 2017 1:44 pm

    Raymond, So sorry, but I do have an objection you might not have counted on. Namely that both your satire and its coda treat intellectual property as an issue of practicality and utility. Long before such aspects, I.P. is a fundamental rights issue, and before that it springs from an ethical principle.

    Rights to property are not rights to matter, like things, land, or even bytes. Man did not create those things and therefore may not ever claim to own them.

    Property is ownership of the improvement of those things inexorably embodied in them that justifies the one who embodied them or acquired them in a voluntary exchange to control them, since no one else may claim to own them either.

    Since it is the reason applied to effort of the creator that is responsible for the value’s existence, it is solely the creator who may use and/or dispense with the value whether or not anyone deems his actions practical or beneficial to society as a whole. (instance of the virtue of justice).

    If you are unable to make the moral case for I.P. you will be paving the way for its destroyers. I suspect you quit reading Rand before you got to the good parts 🙂

  3. Curious December 17, 2017 4:49 pm

    I do, therefore, humbly offer it to public consideration that of the hundreds of thousands of patents awarded yearly, all be dedicated to the public, and all patents granted thus far be abrogated and the inventors flogged for their insolence in filing for a patent.
    I hope Darrell Issa doesn’t read this article. We’ll get the PISSONPATENTS Act soon to be introduced into Congress (Patent Improvement and Systematic Severing Of aNy PATENt righTS)

  4. Raymond Van Dyke December 17, 2017 6:59 pm

    Again, the Article is a Satire in the Swiftian fashion. See Modest Proposal. https://en.wikipedia.org/wiki/A_Modest_Proposal

    If Congr. Issa and others read it and do not see this for what it is, then they should not be re-elected.

    Ray

  5. Benny December 18, 2017 7:34 am

    “…that all patentees are but greedy monopolists, …”
    Patentees are monopolists by definition of the word patent, and are motivated by financial reward, but, I dunno, maybe I’m the only one here who isn’t altruistic.

  6. Anon December 18, 2017 8:01 am

    Patentees are monopolists by definition of the word patent,

    Um, no.

    The definition of the word monopolist may have overlap in certain subsets, but the two are most definitely NOT interchangeable.

  7. Benny December 18, 2017 8:34 am

    Anon,
    A patent application is a request for grant of a monopoly over an invention. What’s not monopolistic about that?
    You are worse than me when it comes to nitpicking.

  8. Michael Clendenin Miller December 18, 2017 9:34 am

    My complaint about the author’s capitulation to pragmatism stands, while the rest seem to have missed that the first 90% of the article is satire.

    Independent of that it should be noted that the word monopoly is morally neutral. The monopoly you should have over your own life and the products of your reason applied to your actions (which includes patents) is inherently a good monopoly.

    It is only a coercive monopoly established under threat of physical force that is bad. And virtually all of those are established and sustained by governments.

  9. Anon December 18, 2017 10:19 am

    Benny,

    You are using the term “monopoly” improperly.

    This is NOT nitpicking.

  10. Anon December 18, 2017 1:59 pm

    Michael,

    My apologies for skipping over your comments earlier, but I think that your position, while well-meaning, misses actual ties to our laws.

    The view of “Since it is the reason applied to effort of the creator that is responsible for the value’s existence, it is solely the creator who may use and/or dispense with the value whether or not anyone deems his actions practical or beneficial to society as a whole. (instance of the virtue of justice).” raises the inchoate right that IS present in innovation past its reasonable position in our legal system, and does not portray correctly the fact that the inchoate right – in and of itself – is NOT a legal right.

    It is important to recognize the full legal context, and I surmise that your “complaint about the author’s capitulation to pragmatism” misses the fact that in the real world, we operate under a legal system that accepts – and imposes – a trade-off in order to arrive at a Quid Pro Quo.

    While I believe that your view is much more in line with protecting innovation, your error remains error. You may have read TOO MUCH Rand, and may be hoping for a different legal system than the one we actually have in place.

  11. Raymond Van Dyke December 18, 2017 2:21 pm

    Again, the Article is Satire, except for the end commentary. IP rights are more properly deemed exclusive rights, not monopolies – which is a charged term used for the satiric effect!

    Innovation and creativity should be encouraged greatly, rewarding the individual for their contributions a limited exclusionary right to protect them, which is entirely in line with what our Founders envisioned.

    Abuses of IP are an entirely different matter, and not at all to be presumed merely because someone has an idea and want’s to protect their property.

    Swift is laughing because I have to explain this. Ray

  12. angry dude December 18, 2017 2:38 pm

    Benny@5

    “Patentees are monopolists by definition of the word patent”

    NO dude, you are 100% wrong

    Patent does not give you the right to make anything
    it only gives you the right to exclude others from using your invention whatever it is – can be some small feature or improvement worthless by itself but worth a fortune when applied to the products your company manufactures…

    strictly negative right, dude – the right to stop others, not the right to make it yourself

    If you don’t understand this principle and why the Founding Fathers made it this way and not any other way then me thinks you should not be posting on this blog. period.

  13. Michael Clendenin Miller December 18, 2017 3:34 pm

    Anon,

    Not sure why you thought I was addressing our laws as they are. I merely intended to lay out the moral justification for intellectual property rights so I could explain my complaint that the benefits Raymond Van Dyke cited in his final paragraph were all pragmatic, which are inherently short-range justifications at best. What is or is not currently legal was not at issue. The topic in my view was intended to be about the justification of intellectual property.

    And if it wasn’t, it should have been, because that is what so few people are familiar with, having never read Rand at all.

  14. Curious December 18, 2017 5:43 pm

    Again, the Article is a Satire in the Swiftian fashion.
    I got that from the beginning — I’m not sure everybody else did as well.

  15. Anon December 18, 2017 6:00 pm

    Michael,

    Thank you for explaining that you are not pursuing the legal angle.

    As to something in the context of legal also aligning with pragmatic – and in particular NOT aligning with your attempt here to paint a different picture bases (solely, apparently) on a moral justification, my rejoinder stands: looking at this from merely a moral justification is not a correct way of looking at the situation. It is as incorrect as many ANTI-patent views. That you are not anti-patents in your leanings does not mean that your approach here is in accord with the article or with comments to the article.

    Justification does NOT come solely from any one plane – and certainly not from a moral justification alone. To wit (and as I have personally noted on other threads), there ARE moral justifications built in</I to the current legal system in the way that patents are property (as opposed to being public rights). THIS aspect of property has in its genesis the Lockean view of patents and innovation. Certainly, a proper view of both the inchoate right and the legal process of turning that inchoate right into a fully actionable personal property right start with an appreciation of the “moral” (or philosophical) justification. As to being more than “merely moral justifications,” Patent law – the context of intellectual property rights – requires more. That’s not just being pragmatic – that is being more complete.

  16. Joachim Martillo December 18, 2017 9:15 pm

    I found the satire to be wonderful.

    For those that can’t deal with satire, I have written a short analysis of the Tinnus v. Telebrands saga that details the current crap at the USPTO and why everyone should care.

    I tried to control myself, but I think I could have written 300 pages about everything that is wrong in this set of proceedings.

  17. Michael Clendenin Miller December 19, 2017 11:15 am

    Anon,

    You are still diverting my position to the less fundamental legal aspects of patent protection. The error was targeting was solely contained in the contents of this ostensibly innocent passage:

    “Our Founders recognized the value of patent and copyright systems, and inculcated this philosophy into the Constitution itself – and our nation has benefited thereby. Likewise, trademarks provide considerable benefits to us all. A societal reward for innovation and creativity is a small price to pay to assure our greatness for generations to come. Rewarding individual creators is key to our nation’s success.”

    My objection is to the treatment of patent/copyright/trademark systems as:
    1) a “value” (recognized by our Founders)
    2) a “benefit” (to us all)
    3) a “small price” (of greatness for future generations)
    4) a “societal reward” (for innovation)
    5) a “reward” (to creators)

    While all five are valid fringe benefits of patent protection, they are useless to the task of validating the necessity for those systems in the government of a free society. If you try to argue for such systems by alleging their practical benefits you will be enabling a litany of alleged impractical consequences from your opponent, and the debate will die in a stalemate.

    Thus I wanted to explain that there is an impregnable justification for patents, etc. even if there would be no benefits to anyone at all; namely, the ethical basis.

    By ethical, I mean resting on specific facts of the nature of the human species, the fulfillment of which requires each individual human being to preserve his own autonomy over the disposition of the values he creates or acquires in the service of his own life. This ethical mandate is the basis for demanding in any society an absolute right for each individual to life, liberty, and the pursuit of happiness. And that is why, philosophically, politics is the extension of ethics, in the context of the individual, to a social context of individuals living and interacting in a governed society. Valid political principles can only derive from valid ethical principles.

    The word, “property,” does not appear in the phrase “ life, liberty, and the pursuit of happiness,” because it is implicit and inseparable from the right to life. That is why patents, copyrights, and trademarks may not be treated like trinkets a government bestows upon creators as rewards or fringe benefits to society. They are a corollary of a government’s fundamental obligation to guarantee individual autonomy in the pursuit of life that supersedes ALL considerations to the contrary anyone might allege to be more “practical.”

    Consequently, the quoted passage unwittingly trivializes a core principle and prerequisite of a just government.

  18. Raymond Van Dyke December 19, 2017 11:20 am

    Joachim

    Your quite detailed description of the travails of the patentee is telling. The AIA has done considerable damage to the patent system, and the USPTO is compounding the problems. The Press and the Supreme Court have their roles as well in the denigration of the patent system to the public.

    Just as Swift used his pen to address a serious social problem, I hope that my piece helps turn a light on the injustices at play against creativity and innovativeness in America.

    Others’ comments mentioning the justifications for IP touch on the underlying philosophy of the patent/IP system – provide a mechanism for self interest to promote the public good. By giving the creator an incentive to create (and thereby promote the common weal), our Founders were well versed in the foundations of the IP laws, and the societal and national benefits that would accrue with their institution.

    The disgusting condemnation of patentees for their contributions, whether in the Press, in the Court, or in the USPTO does not bode well for our Nation. The vast majority of patentees do not seek a fortune, albeit that would be nice, but instead seek a recognition of their contribution, which is sad to say mostly now in money.

    With efficient infringement and our culture conditioned to condemn patentees as abject trolls, there is no money and no recognition. This drama is also being played out in the publishing world, where fewer and fewer writers are being promoted.

    As noted by President Washington in his First State of the Union Address on January 8, 1790, [I stress upon] “you the expediency of giving effectual encouragement as well to the introduction of new and useful inventions from abroad as to the exertions of skill and genius in producing them at home.” From the very first our Founders desired and a patent system.

    We dishonor our Founders by ignoring their stated intent.

    Ray

  19. Anon December 19, 2017 12:22 pm

    Michael,

    To the contrary of what you state, my position is more encompassing and thus is not “less fundamental.”

    Rather, your view (which I do not disdain), is simply not a correctly balanced view for the topic that you wish to comment upon.

    You want one tree to be the forest of the conversation.

    Sure, your tree is an important part of the forest. But you cannot have a discussion of the forest by only talking about the single tree.

    That is the MORE “fundamental” understanding here.

  20. angry dude December 19, 2017 12:40 pm

    Let’s be real, people

    How many people in the general lemming population really care about patent and copyright holders ?

    They care much more about guns but mostly about availability of cheap popcorn with beer and cheap, preferably free TV shows and videogames

    you can write here all you want – lemmings don’t care (until popcorn disappears one day which is still a long way to go)

  21. Michael Clendenin Miller December 19, 2017 12:56 pm

    Anon,
    Your position encompasses more concretes, all of which are subsumed under my all encompassing principle. And that principle is the standard by which your concretes shall be evaluated.

    We face an infinite number of concrete alternatives in formulating a politics, every one of which is reducible to one single alternative: freedom vs. force. Opting for freedom over force (or vice versa) establishes the standard all other choices must meet.

    This does not diminish the importance of the task of defining and executing the legal enforcement of our rights. It merely orders a hierarchy in which the practical is necessarily subservient to the ethical.

  22. Anon December 19, 2017 2:29 pm

    Again Michael – quite to the contrary, as you want your tree to be the forest.

    It just is not so.

    Your one tree just does not subsume the forest, and it is a clear mistake to think otherwise.

    I “get” that you feel that your tree is REALLY important (and it IS an important tree). Nonetheless, the tree still remains NOT being the forest.

  23. Michael Clendenin Miller December 19, 2017 3:39 pm

    Anon,
    The metaphorical assignment of “your tree” to my explanation is illegitimate.

    My position is not about any one concrete tree among many. My position is that it the validity of each your trees qua tree must rest on a valid understanding of what constitutes “tree-ness”, and that does subsume every tree in the forest.

    Your arguments engage the fallacy of being concrete bound—unable to rise to the level of abstract principle. You are equating the principle “rights” with its concrete instances instead of evaluating concrete instances in terms of what the principle of rights actually is and implicitly requires.

    Rights are first and foremost ethical principles (that’s why they are called “rights” in contrast to “wrongs”). All political legal and enforcement aspects of rights must be compliant with the requirements of their ethical base for a government to be a just one.

    That ethical base is not itself a tree. It is the principle of tree-ness.

  24. Anon December 19, 2017 5:55 pm

    Michael,

    I see that you do not understand the situation, and you have expanded your single plank of moral justification into the entire forest.

    That is just not correct.

    You literally have missed the forest for your tree.

    As to “Your arguments engage the fallacy of being concrete bound—unable to rise to the level of abstract principle.” this too is simply not correct. Nowhere in my writing s is there such an indication that I am concrete bound nor able to rise to a level of abstract principle. You simply do not like the order of the abstract principles that I have put to you. There is a world of difference in that.

    As to “Rights are first and foremost ethical principles” – you are sadly mistaken and take the terms out of their proper context. Your problem – as I mentioned at first blush, is that you have read TOO MUCH Rand.

    Ethics is NOT the forest that you think it to be. Ethics is but a tree in the forest. There are OTHER trees in the forest aside from ethics that come into consideration.

  25. Joachim Martillo December 20, 2017 6:36 am

    Michael Clendenin Miller@December 17, 2017 1:44 pm#2

    Natural and moral law arguments pass in and out of favor.

    The patent system has the effect of stabilizing a capitalist economic system, which is unstable because of inevitable wealth concentration but for the patent system. Such concentration leads to collapse or rebellion.

    The patent system provides short temporary resets to wealth concentration and stabilizes the political economic system as the resets help increase economic and political inclusiveness.

    Thus I can ground the patent system in ethics and practicality, which is better than any moral case that I could easy base in the biblical moral law of gleaning.

    If gleaning of farming property is moral and ordained by God, why isn’t gleaning of intellectual property also moral and ordained by God?

  26. Anon December 20, 2017 7:44 am

    Theocracy is not a form of democracy.

    Benevolent dictatorships are one of the most efficient forms of government – problem being that making sure the “benevolence” is there is NOT a form of that government.

    This is why the system of checks and balances – and separation of powers is SO important in the US political system – and is one of the over-riding drivers as to why patent law has become so out of whack (specifically, in the area of 101 due to the inordinate exercise of legislative function by the Judicial branch.

    Or perhaps even worse: the “trends” towards changing the personal property right of a granted patent into a public right – thereby enabling a full-scale move of all things patent into the single government branch of the executive (and this too has a wrinkle being discussed on a new thread in which the Executive branch administrative agency is re-writing sovereign immunity law).

    James Madison feared an imbalance of power and wrote of concerns of the judicial branch being unchecked (those thinking that the Supreme Court are above the Constitution should brush up on his writings). But it gets even worse for administrative agencies that wield a judicial function and who follow the Supreme Court path of writing (or re-writing) statutory law, as then you have a single branch doing all of legislating, enforcing and judging.

  27. Michael Clendenin Miller December 20, 2017 10:57 am

    Joachim Martillo,

    While “natural and moral law arguments may pass in and out of favor,” what actually is moral or not cannot.

    When one discusses moral law in a society that eschews the establishment of any religion, the Bible is of no use whatsoever in defining morality. The inherent prerequisite to demonstrating the validity of any law is evidence, and the Bible cannot provide objective evidence in a court of any kind since it consists entirely of historical hearsay.

    The ethics and politics of Ayn Rand’s philosophy to the contrary is entirely fact based. Specifically it is based on objective definitions of what kind of species humans are and what methods they are endowed with to know that nature and to fulfill the potential of their own nature as such.

    While Rand’s philosophy does not attribute our fundamental nature to a God for lack of objective evidence, no theist should try to maintain that the God they believe in did not endow them with a specific nature and means to know and fulfill its requirements. And unlike any of the world’s religion, Objectivism is not dogmatic (contrary to the prejudicial anti-Rand rantings).

    In her lifetime, Rand consistently admonished her admirers that Objectivism was her personal philosophy, and that, while others were free to learn from it and adopt it as their own, they should not do so without mastering the ability to prove the validity of each idea on their own. Note that the first and second listed virtues of her ethics are rationality and independence!

    Arguments can succumb to fashion, but valid identifications of existence are eternal.

  28. Anon December 20, 2017 12:00 pm

    Michael,

    Your comment of “what actually is moral or not cannot.” begs he question: whose morality?

    Are you aware that there does NOT exist any single set of unified morality?

    You want to place Rand as some type of “objective-fact-based “morality, but in doing so you engage in the very subjective selection of certain facts to have a particular “pecking order” in a larger scheme of things that – necessarily – involves MORE THAN mere facts.

    YOUR brand of theocracy is merely that: another brand of theocracy.

    By attempting to elevate facts beyond their place and stipulate (somehow) that morality MUST ATTACH in some certain way, ALL that you are doing is proselytizing just a different version of “religion.” Your very own pursuit of “this is not dogmatic” is ITSELF dogmatic.

    I say this being fully NOT “anti-Rand” – I actually very much like her point of view!

    As to “Arguments can succumb to fashion, but valid identifications of existence are eternal.” – this is quite a meaningless truism for the topic of discussion here. It does not tie to anything. So you “validly identify “existence” (whatever that may be). So what? So you think that this somehow broadens things to show that your own brand of theocracy is somehow the “one true brand?”

    You still insist on taking one particular tree and saying THIS TREE is the forest.

    It just is not so.

Our website uses cookies to provide you with a better experience. Read our privacy policy for more information.Accept and Close