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   How do we justify the patent term
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   Author  Topic: How do we justify the patent term  (Read 1617 times)
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Re: How do we justify the patent term
« Reply #5 on: Dec 5th, 2005, 4:05pm »
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Okay, I'll take a shot.  
I'd say the contract, incentive and reward theories are all more or less the same and generally as I posited earlier:  we all benefit from people increasing the body of publicly available technical information, so we offer a contract as incentive for people to add to this body.  If you can add to this body of publicly available technical information in some non-obvious way, we will reward you with the valuable right to exclude others from using that technical information for a limited period of time.
Well, the reward theory may be separate.  Many seem to think patents are like mini Nobel prized for excellence in innovation.  However, in our current system, there's no requirement that your idea be any more than barely useful and not obvious -- there's no minimum merit of invention standard.
Going back to the contract theory, my guess is that the utility theory is much like the utilitarian approach to ethical philosophy -- that we're all better off, on balance, having a patent system than not having it.  That might tell you why we have a patent system (assuming that we are, in fact, better off -- and I think we are), but it doesn't tell you why we have the particular system we do.  Well, maybe the "better off" calculus influences which of a variety of systems to use.
Perhaps I'm getting this part wrong, but I think the "natural law" theory is either (i) that God wants us to have patents or (ii) that, through social evolution, we're trying a mutation that competes against other societies with a different or no patent system to see who wins in the struggle for scarce resources.  I think (i) is a stretch, and as for (ii), sure, why not?
I think the "moral rights" theory is that the creator of something has some moral standing to control its use -- something like the moral right of a parent to, within reason, choose the environment of their children.  Moral rights are more closely associated with copyrights, particularly in Europe.  I think they're more defensible in schemes in which independent creation is a defense to infringement -- as in copyrights.  I think moral rights are a lot trickier in patents.
I think the "balance of interest" theory is another name for the contract theory described above.
For what it's worth, why we have patents is an interesting inquiry but really the province of scholars, legislators, and to some degree judges.  From a practitioner's view, it's their world; we just live in it.
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James D. Ivey
Law Offices of James D. Ivey
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Posts: 3472
Re: How do we justify the patent term
« Reply #6 on: Dec 6th, 2005, 12:30am »
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I think the natural law/moral rights theories are that you have the right to own an invention because of your activity in creating it, just as you have the right to wild game that you have put the effort into ensnaring.  Under that theory the inventor would have an absolute right to a patent.  Under such a theory it is difficult to justify any limited extent of the monopoly since there is no quid pro quo.
Natural law can also be a source of the law for copyrights, but natural law need not lead to the same consequences in patent law as it does in copyright law where the author has a right not to be embarassed by distortions of his work.
« Last Edit: Dec 6th, 2005, 2:06am by Isaac » IP Logged

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