A patentable invention must be novel, not obvious, and reduced to practice.
A "patent-troll" is a pseudo-inventor who obtains a patent on an obvious (to practitioners, if not to patent examiners or to judges) application of a known concept in a new context, and then just waits for engineers, programmers or business managers to do... the obvious: apply the same known concept in the "patented" context. At this point the patent troll will sue for infringement of the "patent."
Back when "non-obvious" first became a criterion for patentability, its meaning was objective and clear. "Obvious" means "not requiring the induction of a new concept." "Non-obvious" means "requiring the induction of a new concept." The applicability of an existing concept to new contexts is part of the concept of "concept," going back to Aristotle or before. A patentable, non-obvious invention was one that required the induction of a new concept.
When Pragmatism took over American law, this changed. The existential import of Pragmatism is the denial of the applicability of concepts to existence. The objective definition of obviousness was replaced by a vague sort of "I know it when I see it" ("it doesn't seem obvious to me") non-objective intuition on the part of patent examiners and judges. Hence "patent trolls."
Why is this important? Because the existence of patent-trolls is being used as an argument against intellectual property as property. And it is NOT a valid argument against intellectual property. It is, however, a valid argument against Pragmatism, and especially against Pragmatism as a "Philosophy of Law."
Sunday, June 12, 2011
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18 comments:
OK, I'll bite, but how would you re-codify our laws? Which statute would you pass which would eliminate the patent trolling without nasty side effects elsewhere? How would you word this exactly, in a way that judges working long after you are dead -- long after you can no longer be consulted to clarify what you meant -- judge the law effectively?
France is getting into the state-sponsored patent trolling business. This is not good. What language could be used to keep the trolls at bay?
With Bilski kind of a "wash", and with traction building for patent reform, now would be a really good time to visit our local Congresscritters to propose some new, troll-nipping language!
Given the current dominance of Pragmatism in American life, I don't see, in the short term, a prospect for objective epistemology making inroads into American law - including patent law. The provision that is needed - that to be an inventor, one must demonstrate the induction of a useful new concept, and prove the validity of this new concept by reduction to practice - will have to wait for an Objectivist culture. In the meantime, Objectivists can point to patent trolls as a visible (and readily identified) result of Pragmatism.
This is an awesome, AWESOME article!
Attacking patents per se is an example of what I call "compensation" (like letting the air out of 3 tires if one has a flat). Compensation is deliberately doing what's wrong in order to somehow allegedly "fix" something else that's wrong, that one does not wish to address.
This article brilliantly points the finger straight at the root cause: pragmatism and its anti-conceptual mentality. Given this, there is no standard for obviousness and therefore many patents are granted which ought not to be granted.
The solution is not to compensate by rejecting patents per se, but to reject pragmatism.
If that doesn't seem pragmatic in today's climate...
Dr. Reed:
This is really interesting, and I've been meaning to write something about patents and intellectual property rights. However, my writing about inducing Objectivism and induction generally have ceased any attempts to do so for quite some time, and I'm sure it will be quite some time until I think I'll be ready to tackle the issue.
I have some questions:
How does the patent-troll issue lead to an attack on intellectual property as property, in your view?
Has the philosophy of pragmatism led to a case-by-case sort of patent-issuing, where the decision is more or less arbitrary on the part of the judges?
Pragmatism, to my knowledge, usually absorbs the philosophy, methodology, and ideas from the culture in which it grew from. Do you think that perhaps our current statues on patents are partly based on the Analytic philosophy of the 20th Century?
And how do you defeat a patent-troll in court, if he had the patent issued to him first?
Sorry if I've asked too much.
Roderick
What about the millions of people in poor countires dying due to their inability to afford medicine whose distribution is controlled by corporate holders of intellectual property rights?
I suspect that asking this sort of question is one of those things which are "not done", but I'm going to go ahead and speak my mind anyway.
Come on, Adam. Objectivism maintains that one ought to live entirely for one's self-interest and that the self interest of all individuals is fundamentally and necessarily compatable. If this is so, then it should be a simple academic exercise to convincingly demonstrate that Objectivist economic principles are compatable with the interests of sick people in poor countries, or the interests of enslaved Ivorian cocoa farmers, or the interests of luckless peasants in Afghanistan, or the interests of Bolivians or Indians or Chinese or West Africans facing the ongoing depletion of their water supplies.
I ask this, because the test of principle implied in all of these millions and billions of lives is the same test which, at the end of the day, applies to me.
I had a longer message prepared, but my premises have been turning over so rapidly in the last week that my reasons for writing it no longer apply.
Alice:
Yes, patents are in everyone's rational self-interest: without R&D investment the drugs are not created, and then everyone whom these drugs could have helped is equally dead. As for affording the drugs, the Gates Foundation had arranged to buy drugs (at marginal cost of manufacture) for whole countries (mainly in Africa) for no-cost distribution to patients. GF gave up when politicians and gangsters (in some countries the categories overlap) hijacked the drugs (leaving their constituents without) for resale back in countries where the locals can afford to pay...
That's a much better argument than I'd hoped for, so thank you. Specific facts appreciated.
I deleted two "comments" that were not on topic. Please comment on-topic only.
I was better to you when it was my house. You said then that I had earned your trust, among other grand words. But one shouldn't believe grand words.
Alice: Trust is not a license to post off-topic "comments" that would (I trust not intentionally) hijack the thread. There are other media - your own blog, a note on Facebook, etc - in which a new topic of your choice would be appropriate.
Adam, forgive me for being naive, but I have a little trouble understanding legal terms (I even had trouble when I was reviewing some of my own patent submissions 10 years ago). Are you saying that Patent trolling is a problem or a good thing?
I am an Engineer and every day I see the tech sites listing a lawsuit brought on by a company that does nothing but sit down and think of applications of current technology that hard working people have come up with and they patent the applications (with no intention of ever producing anything).
To me, this sort of behaviour is like a group of individuals sitting down and drawing up plans to rob a bank (only it is legal).
What can this country do to eliminate this foolish exchange of wealth?
Tom: The problem I was addressing is "trolls" obtaining patents without having contributed a non-obvious useful solution. Someone who makes an original intellectual contribution deserves to profit, even if he chooses to use it only by licensing it to others - whether a real, original inventor chooses to use her idea herself, or only license it to others to use, is irrelevant. The problem is trolls who patent the obvious...
http://c4ss.org/content/7717
Blogger really needs a better mechanism to block spammers and trolls.
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