Posts Tagged: "patent clause"

How anyone with even the most fundamental understand of property rights and economics could say that infringing a patent does not result in a tangible injury is beyond me. Is he unfamiliar with the concept and real world practice of licensing patents? With all due respect to Judge Posner, a right without the ability to obtain recourse for its trampling is no right at all. His analysis is wrong and frankly rather amateurish. It carries the stench of a anti-patent ideologue who doesn’t understand the most fundamental principles associated with legitimate, arms-length negotiations that result in a transfer of rights. Judge Posner’s damage analysis has to be a dream come true for those who use the bullying tactic of efficient infringement to make the business decision to trample rights rather than legitimately acquire them.

The reality is that from 1790 to 1836 patents were given to the first to file. Between 1836 and 1870 a panel of arbitrators would decide disputes between conflicting patents and patent applications, but were not required to grant the patent to the first and true inventor. Moreover, even with the passage of the Patent Act of 1870, the first act that specifically and unambiguously gives the Patent Office the authority to grant a patent to one who is not the first to file, the power to grant to the first to invent is conditional, not mandatory. This permissive language persists through the Patent Act of 1939, and ultimately into the regime we have today, which was ushered in by the 1952 Patent Act.

The man who secretes his invention makes easier and plainer the path of no one. He contributes nothing to the public. Over and over has it been repeated that the object of the patent system is, through protection, to stimulate inventions, and inventors ought to understand that this is for the public good. Where an invention is made and hidden away, it might as well never have been made at all,–at least so far as the public is concerned. The law owes nothing to such an inventor, and to permit him to lie in wait, so to speak, for one who, independently and in good faith, proceeds to make and disclose to the public the same invention, would be both unjust and against the policy of the patent laws. In the eyes of the law he is not the prior inventor.

Simply stated, the overwhelming evidence suggests that the United States Supreme Court, the Federal Circuit and even early political and judicial leaders of the United States all envisioned the truth that one can legitimately be called an inventor even though they are not the first to invent. Unlike the many arguing in this debate I will actually prove this if you keep reading, which actual citation to cases and statutes. You see, when truth is on your side it is easy to come up with support for your argument. Sadly, those who want to challenge truth don’t provide citation to cases, they simply think that the passion of their beliefs ought to be enough to will their erroneous statements accurate.

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.