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02.17.17

Patents Are Not Property, They Are a Monopoly, and They Are Not Owned But Temporarily Granted

Posted in Patents at 6:37 am by Dr. Roy Schestowitz

Privatisation of mere actions or thoughts — not just devices — a symptom of patent scope gone awry

History of patent law
Reference: History of patent law

Summary: Patent maximalism and distortion of concepts associated with patents tackled again, for terminology is being hijacked by those who turned patents into their “milking cows”

IN his writings about USPTO-granted patents, Professor Crouch recently looked at pertinent laws and went somewhat philosophical. Yesterday he deconstructed a patent where one of the supposed merits or inventions is that the operator of a vehicle needs to be present. To quote: “The claims require that the operator platform “support an entire body of an operator” during operation use of the vehicle.”

“We certainly hope that the Patent Office sticks to the principle that human operation (a la business methods) as opposed to mechanics should not become patentable.”We have no issues with patents on mechanics, however to name a human being as some sort of ingredient is approaching the territory of the laughable. Lawn mowers have existed for a very long time (nearly 200 years according to Wikipedia) and having an operator present on top isn’t entirely novel, either. We certainly hope that the Patent Office sticks to the principle that human operation (a la business methods) as opposed to mechanics should not become patentable.

“The “public rights” issue is complicated,” Crouch explains. “but the basic outcome is simple – if patents rights are not public rights (but instead private rights) then an administrative agency cannot lawfully revoke a patent once issued (without the permission of the patentee).”

“Well, a patent is a government-granted monopoly and not a “property” or an “asset” per se.”Crouch later posted some more thoughts, noting that “[i]n the “land patent” system, ownership is originally vested in the sovereign and then transferred to the recipient, but it seems to me that the patents on inventions probably work differently. In the end, I expect that this may have some impact on the public-rights cases.”

Well, a patent is a government-granted monopoly and not a “property” or an “asset” per se. Artistic wordings that attribute physical properties to ideas are worse than dishonest; that’s how the recording industry paints copying (or sharing) as “piracy” and “theft”. Saying things like “ownership” (or similar, e.g. someone “bought” a patent or “stole” a patent) makes as much sense as “eating” an idea.

Patents are not rights but exceptional privileges with burden of justification on the recipient. If the “administrative agency cannot lawfully revoke a patent,” to quote the above, even when a patent was obviously granted in error or is doing a disservice to public interests (not so-called ‘public rights’), then maybe it’s time to return to the drawing board. The history of patent systems is checkered and complex and if anything is to be learned from this history, it is that no patent system should be taken for granted and blindly accepted. We need to evolve in lieu with dissemination of concepts over the Internet, the programmability of computers without having to reconfigure hardware (mechanics), and many other advancements.

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4 Comments

  1. Anton_P said,

    February 17, 2017 at 8:42 am

    Gravatar

    Strange then that the UK patents act states “any patent or application for a patent is personal property (without being a thing in action)” don’t you think?

    Dr. Roy Schestowitz Reply:

    The word “property” is overused here (estate also). Even our patent office is called IPO, where two letters stand for things that it isn’t. In the not-so-distant past people too were described as “property”.

  2. Anton_P said,

    February 17, 2017 at 9:22 am

    Gravatar

    Didn’t Proudhon cover this issue?

    Dr. Roy Schestowitz Reply:

    “In the book, Proudhon most famously declared that “property is theft”.” https://en.wikipedia.org/wiki/What_Is_Property%3F I thought it was Native Americans who said that.

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