Posts Tagged: "constitution"

So why would large companies be such supporters of first to file? What if first to file was the Trojan Horse that carried prior user rights? Prior user rights will not benefit the individual or the small business. Prior user rights unambiguously will benefit the large corporations who innovate and then shelf technology for one reason or another, or those who exploit the technology in secret. Perhaps they choose not to pursue a patent because it isn’t perceived to be a meaningful innovation, or worth the cost and time of pursuing a patent. Perhaps the innovation gets weeded out along the way, never getting green-lighted past a certain point. These trade secrets today are not prior art thanks to 102(g). Remove 102(g) and insert a prior user rights regime and all those secrets that large companies hide, fail to pursue or willfully keep from the public will allow them to ignore the patent rights of those who innovate and actually disseminate that information to the public.

The effort to shoehorn foreign patent priority concepts and torture a well-developed 200 year-old American patent system that has a proven record as the best in the world into foreign structures that are inconsistent with the American Constitution and its laws is a futile effort that would likely be met with successful challenge on constitutional grounds. The illusory “harmonization” goal with no demonstrated tangible benefits compared to the existing system does not justify embarking on a risky legal adventure that will destabilize the American patent system and will doom it to decades of economically taxing legal uncertainty.

Currently, the term for copyright protection is life of the author plus 70 years. To put this into perspective for you, Steamboat Willie initially aired in 1928. The copyright is ruled by the 1909 Act and has a shorter term of protection that the current scheme. Steamboat Willie is due to go into the public domain in 2023 unless Congress extends the copyright term again. I’m not sure if nearly one hundred years is a limited term (almost everybody alive during the initial air date will be dead before they can use it), but I guess Congress and Disney think so.

Typically I let what Hal writes slide off my back because I don’t take him seriously. Having said that, the other day he did one of his trademark hatchet jobs on an article I wrote titled The Constitutional Underpinnings of Patent Law This was actually the second Constitutional article I wrote in as many weeks. One week earlier I wrote Patents, Copyrights and the Constitution, Perfect Together. Hal’s newsletter, sent out with the subject “naive and wholly incorrect understandings,” grossly misrepresented my writings, and was incorrect on the law in places as well. That being the case, and given the particularly prickly and fallacious subject heading, I thought I might set the record straight. I think it is also time to challenge Hal to a debate so he will either put up or shut up.

The United States Constitution grants to the Congress the power to grant patents; this power residing in the Congress is found in Article I, Section 8, Clause 8. Unlike most of the enumerated powers granted to Congress in the Constitution, the Intellectual Property Clause is a qualified grant of power, which does limit Congressional discretion in significant ways. The Congress does not have free reign to decide that patents should be easily or freely given, but rather must limit their exercise of power to the dictates of the clause itself. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989). See also Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966) (“The clause is both a grant of power and a limitation. This qualified authority, unlike the power often exercised in the sixteenth and seventeenth centuries by the English Crown, is limited to the promotion of advances in the ‘useful arts.’”).

As James Madison stated in Federalist Paper No. 43, the usefulness of the Congresses power to award both patents and copyrights “will scarcely be questioned.” Madison, Debates in the Federal Convention of 1787, at 512-13 (Hunt and Scott ed. 1920). Given that today’s business world is increasingly based on a company’s ability to innovate and acquire intangible assets in the form of both copyrights and patents, it would appear as if the constitutional goal of stimulating creativity and invention has been wildly successful.

Earlier this week the United States Supreme Court granted the petition for a writ of certiorari filed by lawyers from Stanford Law School’s Fair Use Project (FUP) and Wheeler Trigg O’Donnell LLP and will review the constitutionality of a federal statute that has removed thousands of foreign works from the Public Domain and placed them under copyright protection. The case presents a two-pronged constitutional challenge to the 1994 law passed by Congress, which amended the Copyright Act. The case will test whether Congress has the authority to remove works from the Public Domain under the “Intellectual Property Clause” of the United States Constitution and whether the 1994 law violates the First Amendment rights of those who performed, adapted, restored and distributed works which had previously been in the Public Domain.

Recently I received an e-mail with a link alerting me to something posted on the 271 blog relating to Bilski. The video (viewable on the 271 blog) is taken from a movie about World War II that focuses at least in part on Adolph Hitler. The video posted is from a scene that appears to be taking place in Hitler’s…