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Authored by: Gringo_ on Friday, November 09 2012 @ 09:58 AM EST |
When I said a patent has no intrinsic value, I was only
thinking of its sale
value, which entirely depends on
somebody willing to buy it and how much they
are willing to
pay for it, if at all. However, if someone infringes that
patent and you sue him, then the value of the patent is
whatever is decided by
the court, which of course could be
zero. [ Reply to This | Parent | # ]
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Authored by: Ian Al on Saturday, November 10 2012 @ 04:23 AM EST |
Forgive me from replying at length. The writers of the Constitution actually
proposed protections that were not, in the event, supported by the law. They
made little distinction between works of authorship and useful works of
invention. (Rather than useful inventions, the Constitution refers to useful
Arts; the quoted text explains what the term 'useful arts' actually intended.)
The law saw that providing copyright protection of ideas fixed in a
medium, impinged on freedom of speech and did not promote the progress of
science and useful invention. Both copyright and patent law protection exclude
scientific ideas and laws of nature.
Because of conflicts with other
aspects of the Constitution, the copyright and patent laws are careful to
restrict the protections as intended by the Constitution, when taken as a
whole.
From Wikipedia:The Constitution
To
promote the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries.
History
On August 18, 1787, the
Constitutional Convention was in the midst of a weeks-long stretch of proposals
to establish what would become the enumerated powers of the United States
Congress. Three such proposals made on that day addressed what are now lumped
together under intellectual property rights. One, by Charles Pinckney was "to
secure to authors exclusive rights for a limited time". The other two were made
by James Madison, who had previously served on a committee of the Congress
established under the Articles of Confederation which had encouraged the
individual states to adopt copyright legislation. Madison proposed that the
Constitution permit Congress "to secure to literary authors their copyrights for
a limited time", or, in the alternative, "to encourage, by proper premiums &
Provisions, the advancement of useful knowledge and discoveries".
Both
proposals were referred to the Committee of Detail, which reported back on
September 5, 1787 with a proposal containing the current language of the clause.
No record exists to explain the exact choice of words selected by the Committee
on Detail, whose task was essentially no more than creating a draft Constitution
by arranging the proposals that had been made into the most appropriate
language. On September 17, 1787, the members of the Convention unanimously
agreed to the proposed language, without debate, and this language was
incorporated into the Constitution.
Effect
The clause
actually confers two distinct powers: the power to secure for limited times to
authors the exclusive right to their writings is the basis for U.S. copyright
law, and the power to secure for limited times to inventors the exclusive rights
to their discoveries is the basis for U.S. patent law. Because the clause
contains no language under which Congress may protect trademarks, those are
instead protected under the Commerce Clause. Some terms in the clause are used
in archaic meanings, potentially confusing modern readers. For example, "useful
Arts" does not refer to artistic endeavors, but rather to the work of artisans,
people skilled in a manufacturing craft; "Science" is not limited to fields of
modern scientific inquiry, but to all knowledge, including philosophy and
literature.
The courts have refined the scope of what useful arts
can be protected by 'premiums'. In Fonar v. GE the court said:
As a
general rule, where software constitutes part of a best mode of carrying out an
invention, description of such a best mode is satisfied by a disclosure of the
functions of the software. This is because, normally, writing code for such
software is within the skill of the art, not requiring undue experimentation,
once its functions have been disclosed. It is well established that what is
within the skill of the art need not be disclosed to satisfy the best mode
requirement as long as that mode is described.
The courts make it
quite clear that a patentable invention requires inventive skill and
experimentation way beyond the normal skill of the art employed to implement the
invention.
Madison's proposal was to promote the progress of science
and useful arts by proper premiums and provision. They would be applied to
useful inventions.
In a free market, the correct price for the transfer
of patent protection is whatever the parties agree. That is the market value and
not the value of the usefulness and innovation in the invention. It is that
intrinsic value that the Constitution protects in order to encourage more of the
same endeavour.
The courts have a number of effective ways of
evaluating the free market price that should apply between any two parties in a
patent dispute. That is appropriate for the evaluation of commercial damage. The
courts have not, to my knowledge, attempted to evaluate the intrinsic cash value
of a patented invention.
In the Apple and Microsoft cases, the court
are asked to evaluate the universal FRAND value of patents. The only basis for
evaluating the value of a patented invention in the USA is the law and the
Constitution. The law says nothing about such an evaluation. The Constitution
says that the premium is that which encourages the progress of useful
inventions.
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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