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[Wolfcastle]

Perhaps a point to make is that there are many inventions, but only a select few of inventions are patentable inventions.

35 USC 100 Defines inventions:

(a) The term “invention” means invention or discovery.
(b) The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

35 USC 101 Defines patentable inventions:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Regarding the statement:

...a "claim to the invention" would be a claim to have an exclusive, government protected right to commit a crime

A patent DOES NOT[/u] in any way give you a right to practice your invention. The only right that you get from a patent is the right to exclude others from making or using that invention.

[Art]

Wolfcastle wrote: "Perhaps a point to make is that there are many inventions, but only a select few of inventions are patentable inventions..."

This is accurate observation but I don't think it make much od a difference. The patentable inventions have to be lawful and legal, and most of the USC applies to patentable inventions and thus the legal ones.

Also if an invention, meets the criteria of novelty, usefulness and non-obviousness, but is not patentable only because it is illegal, such invention shall be patentable if someone finds legal use for it.  
In this case, even if the invention was well know and described, just a lawful use alone would meet the criteria of a new best mode to practice the invention and thus make it patentable under the criteria of new use. Assuming, of course, that such a new-legal use is non-obvious.

Wolfcastle wrote: ".. A patent DOES NOT in any way give you a right to practice your invention..."

YOU COULDN'T BE FARTHER FROM TRUTH.

35 USC 204.
...no small business firm or nonprofit organization which receives title to any subject invention and no assignee of any such small business firm or nonprofit organization shall grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States.

So at least under paragraph 204 an inventor or his/her assignee can grant an exclusive right to use (practice) and sell an invention in the USA if it is manufactured in the USA.

If an inventor didn't have such rights he/she obviously couldn't grant them, particularly on an exclusive basis.

Also if you read the rest of USC text carefully you will find many other explicit and implied exclusive rights granted to the inventor to use, sell and license the invention if so desired.

[Isaac]

Wolfcastle wrote: ".. A patent DOES NOT in any way give you a right to practice your invention..."

YOU COULDN'T BE FARTHER FROM TRUTH.

35 USC 204.
...no small business firm or nonprofit organization which receives title to any subject invention and no assignee of any such small business firm or nonprofit organization shall grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States.

Art, despite the fact that you are wrong you've given the best argument I've ever seen for the proposition that a patent gives the right to make an invention.   One hole in your argument is that despite being codified in the Title 35, no source for the right to manufacture an invention is mentioned anywhere in the statute.

Invention is defined as one that is protectable under patent law, but patent law is not mentioned as the source for the exclusive right mentioned in 35 USC 204.

Against that you have the explicit words of 35 USC 154 that describe what a patent does grant.

"(1) CONTENTS.-Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process, referring to the specification for the particulars thereof."

[Art]

Thank you Isaac,
I also thought it was a good shoot :-).

Yeah, there is a whole in the statute when it comes to inventor's rights.

And I know that most practitioners and judges would probably go along with you and Wolfcastle. There is definitely a very strong argument on your side.

But patent law wouldn't be fun if we all believed the same thing.

[Isaac]

Yeah, there is a whole in the statute when it comes to inventor's rights.

The hole is pretty much a vital part of the patent system.   For one thing, it allows patented inventions to be built on top of other patented inventions without depriving the first inventor of his rights.

But patent law wouldn't be fun if we all believed the same thing.

I don't think there is room for disagreement on this point.  If one of my client's believed as you say you do, I'd go round and round with the client until I disabused him of the notion that a patent provides a right (exclusive or not) to make anything.

[Art]

If I was to use patent terminology, by excluding others from practicing the invention, the statute defines inventors' rights through negative limitation.

One undoubtedly has to have some right to practice his/her invention otherwise such practice would be impossible or illegal and we would have no implementations of inventions.

Whether such right is granted under a common law, civil law or patent law, a right to practice undoubtedly exist.

As far as the scope and exclusivity of those rights are concerned it is a matter for discussion.

What you stated in regards to building invention on top of invention, doesn't negate an exclusive right to practice an invention at all. A patent granted for derivative invention build on an existing invention applies only to the novel aspect of matter and not to the previously existing matter, and two inventors can successfully exclude each other from practicing the novel elements claimed in their patents.

Moreover such exclusion can be executed with an court order. If one can lawfully exclude all others from practicing an invention then one undoubtedly has an exclusive right to it even if such right is defined only through negative limitation.

[Isaac]

What you stated in regards to building invention on top of invention, doesn't negate an exclusive right to practice an invention at all. A patent granted for derivative invention build on an existing invention applies only to the novel aspect of matter and not to the previously existing matter, and two inventors can successfully exclude each other from practicing the novel elements claimed in their patents.

The novel elements often cannot be meaningfully practiced alone.    If you invent an improved windshield wiper, how are you going to practice your improvement without the underlying wiper?  

Moreover such exclusion can be executed with an court order. If one can lawfully exclude all others from practicing an invention then one undoubtedly has an exclusive right to it even if such right is defined only through negative limitation.

That does not follow.  It can easily happen that you can exclude others from using an invention you yourself have no right to practice without permission.  I don't think you've thought this through very clearily.  

[Art]

An exclusive right to a subject matter can be granted only once, otherwise it wouldn't be exclusive ! This alone proves my point.

If one decides to invent a derivative element, one must be aware of the existing laws that protect the exclusive rights of others, and if one continues to develop a derivative invention which requires a grant such exclusive rights (that have already been granted ! to someone else) then he deliberately and voluntarily limits himself , by his own choice.

Under a constitution you have a right to pursue happiness but you can't exercise it if it violates the rights of others, so you couldn't steal if that was making you happy.

If an inventor finds a way to practice his own novel elements without infringing on the exclusive rights already granted to others then he is free to do so and his novel elements are also exclusively protected and granted to him.

[Art]

Isaac, your practice of explaining to inventors that they may have no exclusive rights to practice their inventions is very good and by far better then making them think that they do, for obvious reasons already stated by you.

I'm going against the grain in this discussion for the sake of exploring a new point of view and for the sake of pioneering everyday practice, at least not until there is a successful court argument to this effect. So I do understand and respect your point of view and I agree with your practice.

In many discussions on this forum you have proven  a great judgment in respect  to what is best for the client and this one is no exception. I think this is what ultimately counts.

[Art]

Sorry for typo, it should have been:

... and not for the sake of pioneering everyday practice...