Thank you for the absolutely fantastic insight. I completely agree with everything that you've written, and especially with your sentiments concerning rash decisions in reforming patent law. Patent law is an enormously complex system that's inextricably linked with the conflicting interests of many stakeholders. Moreover, getting it wrong (by constricting the scope of patentable subject matter, limiting the remedies available, etc.) will cause the very conduct that the framers sought to avoid: overuse of trade secrets to safeguard inventions. Effectively, an exclusive right to exclude others from practicing an invention is the price the public pays to help the public repository of knowledge (e.g., scientific, literary, artistic) stay abreast of the private repository.
I have a problem with any suggested systemic improvement where the available protection depends on either the cost of the inventive process or its duration. The industry averages sound good in theory, but the USPTO is not equipped to investigate the truthfulness of these claims, which themselves are extraordinarily susceptible to accounting tricks and the like. I don't believe the solution stems from increased regulation. Instead, I've been considering an alternative approach that I haven't heard of before: patents should be inalienable with their rights vesting exclusively in the inventors (jointly and with right of survivorship) for the statutory period. It follows that the state would have a vested remainder in those rights and that no inventor would be able to transfer their right to another.
This idea came after reading about the philosophical and theological concept of inalienable possessions. Paul Kockelman's[1] first theoretical point on the topic concerns ontological classification: ``the gain and loss of inalienable possessions is related to the expansion and contraction of personhood.'' In other words, an individual's accumulation of inalienable possessions correlates with their personhood. Kockelman's second theoretical point asserts that inalienable possessions ontologically individuate, viz. they are uniquely identifiable with the particular individual for his life. Kockelman's final theoretical point is intimately related to classification and individuation: ``inalienable possessions historically and biographically trace.'' It follows that the inalienable possessions held by a group of people can act as a lens through which an observer may view that group's history.
Kockelman's formulation serves as a brilliant metaphor in the domain of Art. 1, Sec. 8, Cl. 8, because ``Writings and Discoveries'' are precisely the ``transcendent treasures'' that we must ``guard[] against all the exigencies that might force their loss.''[2] Overly litigious plaintiffs who amass war chests of patents constitute one such ``exigency.'' Another ``exigency'' occurs when universities strip patent rights from uncompensated students who took that one giant inventive leap. Universities justify their actions by asserting that the transfer was consideration for facility usage---an ``exigency'' that arguably constricts the affected students' personhood.
Many people question how an idea is patentable subject matter: the answer is that it's not. An invention isn't any idea: it's a process, machine, manufacture, composition of matter, or any new and useful improvement on any of them. During the inventive process, an inventor must maintain constant ``intellectual domination'' over his work, and but for a highly particular ordered set of neurophysiological reactions occurring in the prefrontal cortex (``the fugitive fermentation of an individual brain''), the idea would not have occurred at the instant it did. If the idea contemplates a novel and nonobvious invention, then it advances the humanities or sciences by that fact itself. The idea is a psychofact capable of acting as a vehicle ``for bringing past times into present'' so that the history of the inventive process elides into the inventor's identity. It logically follows that a chronology of all inventors in a society produces historically significant insight into the progress of the Arts and Sciences. By contrast, a chronology of patent assignees produces its own historically significant insight: the alarming increase in exigencies threatening the dissemination of these ``transcendental treasures:'' ideas. Accordingly, inventions are properly entitled to the appellation of inalienable possessions.
Applying Kockelman's theoretical points creates what, in my view, is a sensible reformation of intellectual property law. We can distinguish patents from other property interests by noting that patentability requires an idea to meet a series of standards that elevate it to the status of an invention. When an idea meets those standards, it becomes intertwined with the inventor's personhood---his conscious ability to frame representations about the world and act accordingly on them. The gain and loss of inventions is clearly related to the expansion and contraction of the inventor's personhood, because as he invents, the plans he formulates and actions he takes on his conscious perceptions change according to new representations based on the changed state of technological advancement.
In the end, intellectual property is different because it's inextricably linked with the property creator's personhood. Ideas are so profoundly human that it becomes unconscionable to think someone can claim ownership rights in a property interest arising out of another's invention. This solution isn't perfect, but it's one with which I would be more okay.
Non-transferable/alienable rights is a valid possible adjustment. But it is or would be so solely on the basis of its actual economic effect. This simple clear economic approach -- Posner's broadly -- is the only sensible way to understand actual law and activity here.
All that stuff about 'personhood' and 'intellectual domination' and 'possession' is otiose. Any attempt to make an a priori case for intellectual monopoly seems certainly doomed to failure -- for a very simple reason: they do not fit the basic physical facts.
Informational goods are nonrival: they are copyable and usable with no loss to the original. The relation between copies of information is abstract. A copy adds its value, and subtracts nothing.
Two notable ethical points follow from that. Copying is consistent with the principle of universalisation: a general rule that all should copy is not self-contradictory -- the opposite: if we all do it, we all gain. Second, restriction of copying fails a basic rights-justification or liberty principle: we are restricted only so far as we would harm someone else, yet for the notion of unauthorised copying any claim of loss has no grounds in any physical fact.
Ultimately, we want to be governed by the basic physical facts and how their constraints and ramifications allow us best advantage. 'Personhood' justifications for intellectual monopoly seem about as reasonable a basis for regulating behaviour as believing that taking a photo takes someone's soul.
> Informational goods are nonrival: they are copyable and usable with no loss to the original. The relation between copies of information is abstract. A copy adds its value, and subtracts nothing.
That is where I disagree. There's an important distinction between the inventive step leading to a discovery and subsequent copies thereof. A subsequent copy of an idea does not possess the same characteristics as the ``flash of genius'' in the mind of the person responsible for producing that idea. From this distinction, it follows that an idea, alone, has no intrinsic value--intrinsic value arises out of attachment to society.
Your argument is that an idea gains value as it spreads, but I don't think that's correct. Rather, societal advancement occurs when members of a society generate and produce novel ideas. There are two competing forces: (1) the spread of new ideas is akin to a positive feedback loop, since new ideas are based on old ones (there's evidence of this: technological advancement grows exponentially with respect to time); and (2) as an idea spreads, its connection to its creator fades, eventually causing misappropriation of that 'inventive step' and disincentivizing the creator's continued creation of new ideas. The belief that losing control over the spread of an idea on the basis that no harm to the information occurs from copies thereof is flawed: it focuses on the information, rather than the person who created it.
Permitting patent rights to vest only in the inventor transforms his talent into a commodity, rather than the fruits of that talent. It rewards the individual rather than those acting on the information for no purpose other than economic gain.
I have a problem with any suggested systemic improvement where the available protection depends on either the cost of the inventive process or its duration. The industry averages sound good in theory, but the USPTO is not equipped to investigate the truthfulness of these claims, which themselves are extraordinarily susceptible to accounting tricks and the like. I don't believe the solution stems from increased regulation. Instead, I've been considering an alternative approach that I haven't heard of before: patents should be inalienable with their rights vesting exclusively in the inventors (jointly and with right of survivorship) for the statutory period. It follows that the state would have a vested remainder in those rights and that no inventor would be able to transfer their right to another.
This idea came after reading about the philosophical and theological concept of inalienable possessions. Paul Kockelman's[1] first theoretical point on the topic concerns ontological classification: ``the gain and loss of inalienable possessions is related to the expansion and contraction of personhood.'' In other words, an individual's accumulation of inalienable possessions correlates with their personhood. Kockelman's second theoretical point asserts that inalienable possessions ontologically individuate, viz. they are uniquely identifiable with the particular individual for his life. Kockelman's final theoretical point is intimately related to classification and individuation: ``inalienable possessions historically and biographically trace.'' It follows that the inalienable possessions held by a group of people can act as a lens through which an observer may view that group's history.
Kockelman's formulation serves as a brilliant metaphor in the domain of Art. 1, Sec. 8, Cl. 8, because ``Writings and Discoveries'' are precisely the ``transcendent treasures'' that we must ``guard[] against all the exigencies that might force their loss.''[2] Overly litigious plaintiffs who amass war chests of patents constitute one such ``exigency.'' Another ``exigency'' occurs when universities strip patent rights from uncompensated students who took that one giant inventive leap. Universities justify their actions by asserting that the transfer was consideration for facility usage---an ``exigency'' that arguably constricts the affected students' personhood.
Many people question how an idea is patentable subject matter: the answer is that it's not. An invention isn't any idea: it's a process, machine, manufacture, composition of matter, or any new and useful improvement on any of them. During the inventive process, an inventor must maintain constant ``intellectual domination'' over his work, and but for a highly particular ordered set of neurophysiological reactions occurring in the prefrontal cortex (``the fugitive fermentation of an individual brain''), the idea would not have occurred at the instant it did. If the idea contemplates a novel and nonobvious invention, then it advances the humanities or sciences by that fact itself. The idea is a psychofact capable of acting as a vehicle ``for bringing past times into present'' so that the history of the inventive process elides into the inventor's identity. It logically follows that a chronology of all inventors in a society produces historically significant insight into the progress of the Arts and Sciences. By contrast, a chronology of patent assignees produces its own historically significant insight: the alarming increase in exigencies threatening the dissemination of these ``transcendental treasures:'' ideas. Accordingly, inventions are properly entitled to the appellation of inalienable possessions.
Applying Kockelman's theoretical points creates what, in my view, is a sensible reformation of intellectual property law. We can distinguish patents from other property interests by noting that patentability requires an idea to meet a series of standards that elevate it to the status of an invention. When an idea meets those standards, it becomes intertwined with the inventor's personhood---his conscious ability to frame representations about the world and act accordingly on them. The gain and loss of inventions is clearly related to the expansion and contraction of the inventor's personhood, because as he invents, the plans he formulates and actions he takes on his conscious perceptions change according to new representations based on the changed state of technological advancement.
In the end, intellectual property is different because it's inextricably linked with the property creator's personhood. Ideas are so profoundly human that it becomes unconscionable to think someone can claim ownership rights in a property interest arising out of another's invention. This solution isn't perfect, but it's one with which I would be more okay.
[1] http://www.columbia.edu/~pk2113/Article%20PDFs/Inalienable%2... at 343
[2] http://books.google.com/books?id=lNitvRLiiBUC&lpg=PA33&#...