Posts Tagged: "ip clause"

Patents, Copyrights and the Constitution, Perfect Together

James Madison — the fourth President of the United States and the father of the U.S. Constitution — wrote the usefulness of the power granted to Congress in Art. I, Sec. 8, Clause 8 to award both patents and copyrights will scarcely be questioned… There is little doubt that patents were viewed by both Washington and Madison to be centrally important to the success of the new United States. The importance is only underscored by the fact that the only use of the word “right” in the U.S. Constitution is in reference to authors and inventors being granted exclusive rights. In other words, the only “rights” mentioned in the Constitution are patents and copyrights.

The Constitutional Underpinnings of Patent Law

The United States Constitution grants to the Congress the power to grant patents. The relevant portion of the Constitution is Article I, Section 8, clause 8. This clause uses of the word “Right” and is the only place in the Constitution the Founding Fathers actually used the word “Right.” Yet today the Supreme Court is poised to determine whether this most fundamental of all rights, a right deemed so important that it was the only right specifically mentioned in the Constitution itself, is a private right or a public right that can be stripped with proceeding in an Article III federal court.

The Default Law of Joint IP Ownership

The popular media’s reports of the demise of IP rights (especially patents) are premature and greatly exaggerated. IP remains valuable to enterprises of all sizes and types. Further, the notion of open innovation, which reflects not only the social nature of man but today’s technological reality, is here to stay. As a result, IP law practitioners will continue to be called draft, review and negotiate collaboration-type agreements where business, engineering and other legal personnel will continue to insist on the “fairness” of joint IP ownership. Such insistence should always be met with skepticism for its need. And, when such joint IP ownership is unavoidable, its consequences and mechanics must be addressed. In sum: If you must do it, don’t half-a$$ it!

Fully Baking Joint IP Ownership into Collaboration Agreements

It seems the since-kindergarten, ingrained notion of sharing supersedes our B.S., M.S., J.D., Ph.D. and/or M.B.A. training in this respect! Pressures to “get the deal done” by our business and engineering clients, as well as the corporate lawyers who may be supporting the deal and always think it’s a good idea, result in IP law practitioners’ capitulation into drafting joint IP ownership clauses. We should have learned long ago, however, that while splitting the baby (i.e., joint IP ownership in this case) may sound “fair” and give us psychological comfort, in reality it is usually undesirable, unwieldy and perhaps unworkable.

Authors Challenged by Shifting Industry Business Models

The new reality is that content creators are getting squeezed all around. Increasingly many want things to be free and don’t care whether they copy a public domain work or whether it is something that is copyrighted. They don’t see it as wrong, but this makes it difficult to make a living for content creators. Truthfully, for some content creators it is darn near impossible. Yet everywhere you turn content creators are getting the short end of the stick. If it isn’t blatant and wanton copyright infringement online (which I have to deal with all the time), it is authors getting pennies on the dollar for eBooks or musicians who worked with Pandora to help the company get off the ground taken to Congress so the U.S. government can step in and take from creators for the benefit of the company they helped create. Even the name of the bill supported by Pandora — the Internet Radio Fairness Act — is insulting and misleading.