Negotiations Over Single EU Patent End Without Agreement

By Gene Quinn
November 12, 2010

At the beginning of the week the Wall Street Journal boldly wrote that agreement over a single European-wide patent seemed imminent.  Such an agreement would have seemed unfathomable in recent years, but there seemed to be real hope, with ” EU Commissioner for the Internal Market Michel Barnier being quoted as saying: “I really think it’s possible to reach unanimous agreement.” What a difference a matter of days makes. Unfortunately for those who support a single European patent, negotiations broke down on Wednesday evening and the status quo will remain. According to the Financial Times the sticking point was with respect to languages that patents would be translated into, with Span and to a lesser extent Italy being unhappy with the prominence of English, French and German.

As an American it is exceptionally difficult for me to understand why something that makes so much sense is having such a hard time passing in Europe.  Don’t get me wrong, I never under estimate the ability of government, any government, to screw things up when they get involved, but the lack of a single European patent is particularly puzzling.

There really is no “American equivalent” hypothetical example that could be useful to convey the oddity, but allow me to try.  Having separate patents in every country in Europe would be a lot like each State within the United States having its own patent system and needing to pursue a patent in Virginia largely separately and distinctly from pursuing a patent in Maryland, Pennsylvania, West Virginia or North Carolina.  The reason even this thought experiment is not particularly useful is because all of those States, and in fact all of the States in the United States, speak the same language.  In Europe the countries are roughly the size of States in the United States and there are 23 official languages, and according to the European Commission, as the European Union expands that number will expand as well.

[International]

In a statement acknowledging the failure and the fact that compromise seems impossible, Commissioner Barnier explained:

I would like to underline that the failure of these discussions has serious consequences.

The absence of a European patent hinders our competitiveness, hinders European innovation, research and development. In the midst of the economic crisis, it is not the right signal.

On the contrary, we must put all the assets on our side to re-launch growth, to support our businesses and thus create new jobs.

The current system for the patent is too expensive, it costs 10 times more than the United-States. It impedes growth. And it is small and medium sized businesses – genuine sources of dynamism for the future – which are suffering most from it.

It is indeed quite expensive to obtain and maintain patent protection around the world.  This is due to the fact that if you want international protection you will eventually need to obtain a patent in every country where you wish to obtain exclusive rights.  From the perspective of an inventor, small business or even an established business in the United States, that can be exceptionally expensive due to the need to have documents translated into the official language of the patent offices in foreign countries, and the need to hire a patent attorney in each country who can deal with the patent office in the foreign country or countries.

To illustrate the expense of obtaining patents in multiple jurisdiction, which Commissioner Barnier correctly points to as a justifiable reason to pursue a common patent in Europe, take a look at what the U.S. Government Accounting Office (GAO) found based on a hypothetical scenario they scored (see Appendix V) back in 2002.  I know it is dated, but still illustrative:

Our scenario depicts a small company filing for foreign patent protection for one of its products in six European countries (France, Germany, Italy, Ireland, Sweden, and the United Kingdom), Canada, Japan, and South Korea…

Given this scenario, the estimated cost of the U.S. patent, maintained for a period of 20 years, is about $10,000 (in 2002 current year dollars). The estimated cost of the foreign patents, maintained for a similar length of time, would range from about $160,000 to about $330,000 (in 2002 current year dollars). These are minimum estimates that include patent application filing and issuance fees, translation fees for applicable foreign patent offices, maintenance fees, and estimates of attorney and foreign patent agent fees associated with work related to the filing and paying of these fees. Actual patent costs for a patent filing strategy similar to our scenario could be far higher because we assumed that the patent application would not face a difficult examination process in any of the countries. Thus, our scenario eliminated many patent office and legal costs that companies incur in trying to obtain a patent.

Thus, it is easy to see that the statement by Commissioner Barnier that it costs 10 times more to obtain a patent in the European Union as it does in the United States is anything but exaggerated.  In fact, it could be a low-ball estimate.

[International-2]

According to Europa.eu, which is the official website of the European Union, “[t]he European Union is less than half the size of the United States, but its population is over 50% larger.”  With its 495 million inhabitants, it represents what could and should be a very enticing market for businesses.  Unfortunately for Europe, however, stronger patent rights are associated with faster industrial growth through technical progress.  See Patent Rights and Economic Growth: Cross-Country Evidence (2009). Thus, what the U.S., WIPO and those around the world know to be true is that fact that stronger patent rights lead to favorable businesses and investment climates, which works to spur the economy and create jobs.  So when the expense to protect your invention throughout Europe, which is half the size of the United States, is a minimum of 10 times more expensive although the market is only 50% larger, the numbers just don’t add up to make good business sense.

As long as inventors and businesses need to redundantly spend for translations, patent fees and patent attorneys, the European Union will always lag behind the United States.  It is hard to justify the expense of a European-wide patent, and that makes it less attractive for businesses to locate and exploit the European market as a whole.  If Europe were to adopt a single European-wide patent the EU could easily steal some thunder from the United States.  The market is bigger and there is a history that embraces the rule of law in a way that China and India really do not, at least on the intellectual property front.

The question is not whether Europe will benefit from a single European-wide patent, but rather whether nationalist bickering can be put aside for the good of the entirety of the collective.  Doubtful if you ask me.  Unlike the United States which has a common history and tradition between and among the States, no such core commonality really seems to exist in Europe.  Until that changes Europe will largely look like the United States under the Articles of Confederation, which proved impossible to support a single national government.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 27 Comments comments.

  1. Bobby November 12, 2010 7:57 pm

    One big problem with getting everyone to agree on the same rules is that nobody is happy. When it comes to IP agreements, the trend appears to be ratcheting things up to the strictest protection, instead of striving for productivity, probably because it’s often industrial powers with existing interests that drive these talks. Exceptions and areas without protection play a vital role in innovation, as the UK’s Prime Minister mentioned when stating that Google couldn’t have formed in the UK because their Fair Dealing leaves less room to work than the US’s Fair Use.

    I would think that as someone who says they are conservative, you could appreciate the potential in greater autonomy and decentralization. Continuing your European nation = American state analogy, we reserve certain powers for state governments for a good reason. Just like all US states are the same, all European countries aren’t the same, and one-size-fits-all solutions are often bad. Standardisation of filing procedures has advantages without big cons, but a country losing the right to control what it grants patents for could be quite harmful to an industry within that country. I seem to recall that international treaties have more or less tied the hands of the US on many of in its patent policies, such as the protection of 20 years, when there’s a decent argument that outside of perhaps pharmaceuticals, this is far longer than what is ideal for practically all industries today.

    As for your numbers, you seems to be suggesting that patents are the only costs or that profit margins are more important than profits. If ten times the patent costs are less than one and a half times the sales, then the European market would be more appealing anyway. To my knowledge, European sales tax tends to be higher, and regulations in many areas are often stricter (for example, genetically modified food are quite rare because of tight regulation). The language barrier can also creates problems with end products, as can cultural differences.

  2. Blind Dogma November 13, 2010 9:39 am

    because it’s often industrial powers with existing interests that drive these talks.

    Have another big gulp Bobby.

  3. Gene Quinn November 13, 2010 6:17 pm

    Bobby-

    You say: “I would think that as someone who says they are conservative, you could appreciate the potential in greater autonomy and decentralization.”

    There is a big difference between justifiably having powers guaranteed to the US States in the Constitution to continue to be powers that are held by the US States and regulating commerce between and among states. The US Constitution sets up the perfect trade-off between allowing Congress to regulate interstate commerce and powers of health and welfare being left to the States, as well as other powers not specifically granted to States. But you are a smart guy and I’m sure you understand that.

    You say: “I seem to recall that international treaties have more or less tied the hands of the US on many of in its patent policies…”

    Then why don’t we have harmonized laws?

    -Gene

  4. Bobby November 13, 2010 7:58 pm

    Gene
    It’s odd in mentioning the tradeoff that you talked about By no means am I claiming that all powers are best held by the states, but there can be healthy debate over what powers are best left to states and what powers are best left to . It’s also worth noting that in the EU, countries are currently more autonomous than our states and many want it to stay that way. You can argue that patents are better handled on a grand scale, but I think you can see why countries might want to retain more control over their patent system, especially given that Europe generally leans more towards consumer protection than business interests relative to the US. I certainly wouldn’t want to see a global patent office, even if it would bring significant benefits.

    As for not having harmonized laws, we do a certain extent (for example, WTO countries have to have patents lasting at least 20 years and copyright last the life of an author + 70/50 years in most of the world, However, we haven’t fully harmonized because we have incompatible views in many aspects of IP. For example, regarding the proposed ACTA treaty, the US was strongly opposed to geographical indicators, and we have strong interests in not using them. If implemented, Kraft wouldn’t be able call their parmesan cheese as parmesan cheese and American sparkling wines couldn’t be labeled as Champagne . The US, on the other hand, wanted much stronger liability for ISPs than the EU and some other countries would accept.

  5. Gene Quinn November 15, 2010 1:21 pm

    Bobby-

    You say: “It’s also worth noting that in the EU, countries are currently more autonomous than our states and many want it to stay that way.”

    That is exactly right, and exactly where the problems come from. While I agree that a conversation makes sense to see who retains what powers, it just doesn’t make sense to me to have countries that are the size of states and more or less share the same economy and same currency (most of them anyway) require a patent be obtained in each separate jurisdiction. History shows that where patents are strongest is where industry locates. We never get to that “is it strong enough” question in Europe really because it just costs to much to get any kind of a patent throughout the EU.

    I wouldn’t want to see a global patent office either, but if Europe is really going to become a common market this would seem to me to make all the sense in the world for them.

    Cheers.

  6. Bobby November 15, 2010 8:40 pm

    “History shows that where patents are strongest is where industry locates.”
    Well, those who want patents locate to where patent protections are the strongest (or at least their patents do), but if you want to make a product cheaply, you may go to places where there are not relevant patents or regulations are otherwise loose. The importance of Hollywood, a huge locale for the film industry in the US, was largely the result of moving west to avoid the enforcement of patents Edison and others held that were necessary for film making.

  7. Blind Dogma November 15, 2010 10:51 pm

    So, Bobby, you are saying that to make a buck and buck the law, one needs to basically lie, cheat and steal in a place the law won’t reach you (since that’s the equivalent of fleeing the location of relevant patents).

    Good luck in actually obtaining the financing and structure-building that society actually hopes to achieve.

    Good luck with the moral question. Funny how that always seems to follow you around, isn’t it?

  8. Bobby November 15, 2010 11:12 pm

    There is no lying, cheating or stealing involved. Technically, there isn’t even patent infringement occurring, at least not until goods are imported to another country. There is simply moving to environments with more favorable rules and conditions. Businesses do that all the time.

    Also, what moral question? Patents are not a moral issue as far as I’m concerned. It is a practical institution, not a moral one, and if a country doesn’t want to acknowledge them or certain subsets of them, that is their choice as a sovereign nation.

  9. Charanjit Sehgal November 16, 2010 5:46 am

    infact the granted EP patent is enforceable in the EP designated state only if it is validated in the respective member country and a patent no of the respective member is issued. Does it mean that the granted Ep patent is like a PCT application which is enforceable only if entered into the national phase as in EP case too validation in the EP country member is like entering into the national phase

  10. Blind Dogma November 16, 2010 9:05 am

    Patents are not a moral issue as far as I’m concerned.

    Yes, that is plainly evident. Go ahead and rest on the virtual technicality of evading the reach of jurisdiction in order to do what you want. Then step back (pause for dramatic effect) and look and the big picture – the one you say is not there. Go back and review the threads where this line of thought (morality) surfaces. Your choice of not seeing a moral thread speaks louder than all your arguments combined.

  11. IANAE November 16, 2010 9:30 am

    Go ahead and rest on the virtual technicality of evading the reach of jurisdiction in order to do what you want.

    There’s no moral issue in doing something in one place that’s illegal in another, per se. We do it all the time. Women walk around with their heads uncovered, people chew gum in public, people drive on the highway faster than the speed limit in the city, and such. The act itself is either moral or not, and either legal or not, but whether it’s legal doesn’t affect whether it’s moral. Even if you do it where it’s illegal, all you’re left with is the higher-level moral question of whether it’s inherently wrong to break the law, which probably won’t lead to fruitful discussion here.

    It’s up to the patentee to get patents where he wants patent protection. If he chooses to leave his invention to the public in certain countries, how can it possibly be wrong to practice that invention there?

  12. Bobby November 16, 2010 10:19 am

    @BD
    So what is the moral code I should live by when it comes to patents?
    Does copying someone without explicit permission after twenty years suddenly become moral?
    Is it moral to copy someone who doesn’t wish for their invention to be copied but was for whatever reason denied a patent?
    What if I’m manufacturing and directly distributing patented pharmaceuticals (labelled in a manner that properly identifies the credited inventor and patent holder to make it clear that I did not claim to invent said drugs) to individuals in small numbers to India at roughly my operating costs? I would be doing something not legal by US patent laws, but my methods would prevent any kind of illicit trade that would harm the businesses of US patent holders through importing. In this case, I’m saving lives and not even preventing a threat to the pharmaceutical companies developing the drugs, and for the sake of argument, let’s say that what I was doing is legal in India. However, I am doing something that isn’t legal in the US, so there is clearly something wrong.
    What about the reverse? A good share of media is in the public domain in the US, but is still protected by copyright in Europe. Am I doing something wrong if I download a copy of said media legally in the US? What about things that may be eligible for protection abroad but not in the US, such as databases without an original creative element? Yes, these examples are copyright related, but a similar principle should apply, and I couldn’t find clear cut examples as easily.

    Please, explain the morality of this because I was lead to believe by the US Constitution,the writings of Thomas Jefferson, and quite a few other sources on the matter that patents were practical tools to attempt to accelerate scientific progress. I am completely in the dark about this patent morality stuff, as they didn’t teach about this in school OR Sunday school. Maybe you can show me the light.

  13. Blind Dogma November 16, 2010 10:48 am

    Maybe you can show me the light.

    Go back and review the discussiononthe Socratic method.

    Those that refuse to learn, cannot learn.

  14. Bobby November 16, 2010 11:23 am

    I’m trying, but you aren’t giving me anything I can work with, Have you considered that the problem might be with the teacher, not the student? Maybe there isn’t something wrong with either or us, per se, but there is something akin to a language barrier. Things that are clear to one person aren’t inherently clear to another because experience and knowledge shape perception. You could at least answer my questions instead of vaguely pointing back to conversation where you vaguely pointed back to conversations where you didn’t actually make a point.

    So please, answer my questions, give a vague outline of the morality of patents, or kindly shut up. I don’t intend to be rude, but I don’t even recall the last time your arguments had any actual substance to them.

  15. Blind Dogma November 16, 2010 2:21 pm

    I’m trying, but you aren’t giving me anything I can work with, Have you considered that the problem might be with the teacher, not the student?

    They may have said the same thing about Socrates. Yet his teaching methods survives notwithstanding the student. The lack of substance is more a reflection of your positions than anything else.

    At least I have not been poisoned – yet.

  16. Bobby November 16, 2010 2:48 pm

    The Socratic method does survive, but that doesn’t mean you are good at using it. You seem to have enough trouble understanding what the constitution says about patents and the differences between lying/cheating/stealing and patent avoidance (perhaps you can tell they are different, but patent avoidance is by basically any widely accepted ethical principle inherently less bad than equivalent levels of stealing. In other words, stealing ten lightbulbs is more bad than making and selling ten lightbulbs in a district not covered by relevant patents.), let alone being able to show someone else how something is immoral. In fact, I didn’t even say that you HAD to do that to be profitable, but rather that it’s appealing to businesses and that it has happened in the past with one of the biggest US industries. Perhaps even basic reading comprehension is beyond you.

    However, you’ve derailed this far enough. Even if I were to accept that crossing borders to get around patents is morally far worse than shooting puppies out of cannons at sick orphans, businesses probably wouldn’t care. The question in the discussion with Gene was not about the morality of it, but what is appealing to businesses, and a lowered cost of production is appealing to businesses.

  17. Blind Dogma November 16, 2010 6:21 pm

    but that doesn’t mean you are good at using it.

    And you continue to evidence a complete lack of understanding of it.

    And you still want to blame the teacher. But then again, that’s perfectly natural for lazy students.

    Not that I’m surprised, with your quick-buck mentality, mind you.

  18. Gene Quinn November 16, 2010 6:59 pm

    Bobby-

    You want a “vague outline of the morality of patents.” That is easy. Without patents there is dramatically reduced funding to create innovations that we all want, like life saving drugs, new medical devices to detect and treat disease and technologies that save lives and make quality of life better.

    Patents are undoubtedly moral. What is immoral is not having a patent system and forcing people to go without the innovations and advances they otherwise could enjoy, as is the case in third-world countries. While those who are not sophisticated like to say that causation and correlation are different, the truth is that everywhere that develops a patent system sees dramatic foreign investment, birth of an economy and dramatically improved quality of life, not to mention extension of life. It is not correlation, it is caused by the investment dollars that flow from a business friendly legal environment that recognizes strong patent rights.

    At some point in time causation and correlation are equivalent, and that point is when A always follows B, as in the case of adoption of a sophisticated patent regime.

    Extremely moral if you ask me.

    -Gene

  19. Bobby November 16, 2010 10:27 pm

    Gene
    What you are stating is an entirely practical system. You are saying patents are justified directly due to their benefit to society. Granting patents has benefits and it has costs, and in scenarios where the costs outweigh the benefits, the patent system is no longer justified. Saying a blanket statement like ‘patents are undoubtably moral’ is foolish because they are only justified under the parameters where they are a net benefit, and are harmful under the conditions that they aren’t. ‘Patents can be beneficial under ideal circumstances’ is a much better stance, and it spurs us on to find ‘ideal circumstances.’ That means that we can take a scientific view, and find out what patent policy, if any, is the best choice for society. We can study what kind of policy is best for different fields. We can study the differences of what’s best for developing countries as opposed to developed countries. We can study what’s best today and what will likely be best in the future, as paradigms chance. There are a lot of subjective elements, but we can at least make a fairly informed decision.

    You mention drugs, which are in many ways unique, particularly due to the FDA. Milton Friedman is generally not a big fan of patents, but sees them as justified because the FDA considerably raises the costs of getting a drug to the market. The ideal method for dealing with drugs is a complex manner. Pharmaceutical companies don’t want to sell to developing countries at prices they can afford because an illegal trade back into developed countries could undercut them, resulting in them often receiving limited supplies of pharmaceuticals, which is a big negative to those living in those countries.

    It’s also worth noting that, depending on your sources, somewhere between a third to two thirds of the R&D costs of the US pharmaceutical industry are fronted by the government. Federal funds work roughly as well as private funds at discovering new chemicals and running clinical trials, and generic pharmaceutical companies can get an FDA approved drug to market, so cutting out the private sector entirely and dropping patents would probably net us in the neighborhood of a third to two thirds of the drugs we have today with much better availability, which could possibly have an effective feedback loop (healthy people tend to be more productive, and people who can afford the drugs they need tend to be more healthy). Also, without patents, a lot of resources wouldn’t have to be wasted. With any kind of reasonable oversight on fund allocation, we wouldn’t bother with insignificant changes to existing drugs such as Claritin to Clarinex, and there wouldn’t be any incentive in delaying a superior derivative that is trivially discovered. We wouldn’t have to bother with drugs that are being produced by Pfizer because GlaxoSmithKline has the rights but still wants a piece of that market. It’s quite possible that we could come out better with just this than the current patent regime. Of course, there’s no logical reason to cut out private R&D, but even without it, it’s far from the nightmare you like to paint.

    Forgetting that possibility for the moment, we may find that compulsory licensing is almost certainly better than exclusion. We let companies have temporary periods where they collect statutorily capped royalties on drugs they developed, meaning that the pharmaceutical companies have a good chance of getting a return on their investment (maybe even better), but drugs are widely available sooner. Not seriously considering something like this as an alternative is an irresponsible policy.

    The patent system predates Adam Smith and Sigmund Freud, putting the design of a multifaceted combination of economics and psychology ahead of anything that can remotely be called modern economics or psychology, so treating it as an infallible system is lunacy. Think of it in practical terms, get some good, independent science on the matter, and let science shape the policy. It’s worth considering that even if the patent system was beneficial in the past, that the conditions for society might change to an extent that any patent system that can be implemented is not beneficial. Outside of the heavily regulated pharmaceutical industry, the cost of production has plummeted in the last century, and will probably do so in the future as well. This means the amount of investment needed for a technological advance generally decreases, and thus the amount of time needed to get a return on said investment. This is compounded by greater amounts of free time, greater general and scientific literacy, and greater methods of distribution. We’ve outgrown feudalism, so to claim that we won’t outgrow patents is naive. We’ve got to be open to that policy, at the very least, just to have a card to keep existing interests in check.

    @BD
    I’m not blaming the teacher, I’m opening up the possibility for blaming the teacher. It could be you, it could be me, but trying to look back through old conversations is going to have a bad signal to noise ratio, and a good teacher knows when to change methods to fit the student instead of just dodging questions and claiming that the student doesn’t get it. I’m being gracious enough to even humor you as the teacher, when you failed to understand a fairly simple part of the most basic patent law in the US.

  20. Blind Dogma November 17, 2010 8:54 am

    Bobby,

    You make altogether far too many assumptions and errors.

    trying to look back through old conversations is going to have a bad signal to noise ratio
    Why? The signals are there. They are strong. You are the noise, I cannot control that noise. I cannot force you to learn.

    a good teacher knows when to change methods to fit the student
    So you are saying that there is not a single good teacher in any law school in the United States then? Clearly you have not been to law school.

    dodging questions
    It is you that dodges questions. Go back and see. Answer the questions – especially the ones about morality, the ones you never seem to want to discuss.

    claiming that the student doesn’t get it.
    My claims are verified by your positions – and yes, you still don’t get it.

    I’m being gracious enough
    Gracious is not the right word – petulant perhaps, even stubborn, but with an underlying dawning of understanding that you are indeed incorrect.

    when you failed to understand a fairly simple part of the most basic patent law in the US.
    What simple part of the most basic patent law in the US have I failed to understand? Please show me my error.

  21. Bobby November 17, 2010 9:44 am

    @BD
    “Why? The signals are there. They are strong. You are the noise, I cannot control that noise. I cannot force you to learn.”
    There was a good bit of the conversations that had nothing to do with the subject at hand (like the post I’m replying to), and there have been quite a few conversations. Bringing up what’s relevant in a concentrated form would mean that I don’t have to comb through the articles of several different articles and unrelated comments to get to your point (signal), and would be less likely to be distracted by things that don’t matter (noise),

    “So you are saying that there is not a single good teacher in any law school in the United States then? ”
    Do law school professors use the Socratic method exclusively? That would really suck for students who happen to learn better through other methods, as well as things that don’t require serious critical thinking to understand. If I had to guess, I’d think even good ole Socrates used other methods from time to time.

    “It is you that dodges questions”
    I’ve proposed a few questions here, none of which you’ve answered. That is dodging questions. I’ll even let you take a pass on the India drug question, since it’s perhaps a tough moral question.

    “What simple part of the most basic patent law in the US have I failed to understand? Please show me my error.”
    That having a patent system is OPTIONAL under the US Constitution.

    http://ipwatchdog.com/2010/08/30/counterfeiting-costs-us-businesses/id=12336/

    You claim in comment 40 that patents are constitutional rights, when a competent reading of the US Constitution makes it clear that they are not. These are rights specifically mentioned by the Constitution, but they are statutory, like rights given under statutes passed under the commerce clause (Trademarks being perhaps the most relevant to this blog). Gene even piped in comment 84 to say while he wouldn’t support such a measure, it would be Constitutional for Congress to end patents outright.

  22. Blind Dogma November 17, 2010 1:34 pm

    as well as things that don’t require serious critical thinking to understand

    Seems to be a hallmark of yours…

    none of which you’ve answered. That is dodging questions

    See the comment about not still not understanding the Socratic method.

    That having a patent system is OPTIONAL under the US Constitution.

    Gene is not a Constitutional Law authority. Neither are you. Your “optionality” of the patent system would also equally make optional the Congress providing for the common defense and general welfare of the United States. Tell me how truely “optional” that would be.

    As to Constitutional analysis, I will put stock in a discussion with someone that actually knows that area of law, thank you. Your “policy” leanings are a far cry from that authority – as witness the previous threads. The “understanding failure” is not mine. Your dogma still blinds you.

  23. IANAE November 17, 2010 3:32 pm

    Tell me how truely “optional” that would be.

    Factual situations might not leave Congress much choice, but constitutionally speaking Congress is free to refrain from doing that. Just as Congress is free to pay down the national debt and refrain from borrowing money, or repeal the patent system, and there’s nothing the Supreme Court could do about it.

  24. Bobby November 17, 2010 3:51 pm

    “Seems to be a hallmark of yours…”
    To realize that sometimes things are simple and don’t require critical thinking? Sure, I’ll consider that a hallmark of myself and basically the entirety of humanity that is considered sane. If you think everything does require critical thinking, accomplishing mundane tasks must be quite laborious for you.

    “See the comment about not still not understanding the Socratic method.”
    There are questions. You are not answering them. That is dodging questions. You just keep shouting Socratic method like just saying it wins you arguments. It doesn’t. Just in case you think it does, I am actually Socrates, you don’t understand the Socratic method at all times infinity, and Hemlock is delicious. Note that this is not intended to be a legitimate argument, but an attempt to counter your meaningless babble with meaningless babble.

    “Gene is not a Constitutional Law authority. Neither are you.”
    No, but you don’t have to be an authority to understand the Constitution.

    “Your “optionality” of the patent system would also equally make optional the Congress providing for the common defense and general welfare of the United States.”
    Your non-optionality of the patent system would by the same token make non-optional declaration of war and borrowing money. We are not at declared war right now, so undoubtably some elements of Article, Section 8 are optional. It’s not impossible to imagine the government not providing for defense or general welfare, although it would probably be quite unpopular. However, the question is not one of what is reasonable or what is not political suicide, but what is Constitutional. Not doing anything for the clauses you mentioned is somewhat complicated, but not providing patents and copyright is pretty straightforward. SCOTUS might get involved for grandfathering, though.

    Also, it’s probably worth considering what Thomas Jefferson once said “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.” Now he didn’t directly mention the US Constitution, but if he felt that the US Constitution didn’t give that as an option, his almost certainly wouldn’t word it that way. Also, I suppose he’s fairly qualified to be considered a Constitutional Law authority.

  25. Blind Dogma November 17, 2010 4:08 pm

    No, but you don’t have to be an authority to understand the Constitution.

    And you can be even less of an authority to misunderstand it, and yet believe that you are understanding it. Case in point.

    Quoting Jefferson as the be all and end all of Consitutional thought – especially as it regards one of the three primary concepts, that of “property” (the other two being life and liberty) is fraught with peril – especially by arm chair legal experts such as yourself. Whether Jefferson is a Constitutional Law authority or not is a red herring – you are not Jefferson, and your arm chair understanding of Jefferson only compounds your misunderstandings.

    You simply are not equipped to hold the conversation you want to hold.

    And the hallmark wasn’t understanding that some things don’t require critical thinking – it was the lack of critical thinking. Try to keep up.

  26. Bobby November 17, 2010 4:35 pm

    Okay, ignore how Jefferson isn’t 100% conclusive on the matter and address the actual argument. You know, the one that both IANAE and I just refuted. We are still about three or four points levels of abstraction away from your argument being moderately relevant to the points I initially made here, and you are having a hard time not degrading the argument into less relevance.

    And yes, your intentions were pretty clear, but you arrived at your apparently mandatory pointless insult in an incredibly awkward and contrived way, so I figured I’d turn it around a bit.

  27. Blind Dogma November 17, 2010 6:37 pm

    so I figured I’d turn it around a bit.

    I’ve noticed your spinning.