1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/14798/supreme-court-prepares-to-chop-down-clear-and-convincing-standard-for-proving-patent-invalidity/

Supreme Court Prepares to Chop Down “Clear and Convincing” Standard for Proving Patent Invalidity

November 29, 2010 by

Peter Zura, in the 271 Patent Blog, notes, in Supreme Court Prepares to Chop Down “Clear and Convincing” Standard for Proving Patent Invalidity, that the Court has agreed to hear the appeal of the Microsoft Corp. v. i4i Ltd., case. In this case, i4i sued Microsoft for patent infringement and was awarded a $290M judgment, based on Microsoft’s use of XML in Word.

At issue here is the burden of proof Microsoft needs to satisfy to prove i4i’s patents invalid. Let me try to explain without getting overly legally technical. When a patent application is filed, the applicant is supposed to submit all the material prior art he is aware of. The patent office Examiner also does a search to try to find other prior art. He or she then examines the patent application in light of the prior art that is submitted and that found by the Examiner. If a patent eventually issues, then it is said to have a “presumption of validity”. A defendant can argue that the PTO made a mistake and “should not” have issued the patent–say, because it was obvious in view of some prior art–but he has the burden of proof–but it’s an uphill battle. If the defendant argues that the patent is obvious in view of prior art that the Examiner already considered (or that is similar to–cumulative with–prior art considered by the Examiner), then it’s even harder. If he finds prior art totally different from what the Examiner considered, maybe it’s easier to argue–you don’t have to argue the Examiner made a mistake, just that he didn’t see certain prior art.

Now, when you have the burden of proof there are various standards of proof, to-wit: preponderance of the evidence (more likely than not) and “beyond a reasonable doubt”, at two ends of the spectrum; with “clear and convincing evidence” being somewhere between. The question Microsoft put to the Supreme Court was which standard should be used to consider a patent’s validity, when there is new prior art submitted that has not yet been considered. If the Court says preponderance is sufficient (as they seem likely to do), this makes slightly easier to challenge a patent’s validity, in some situations (where prior art is found that is not the same as or cumulative to the prior art the Examiner considered). But the defendant still has the burden of proof; the patent is still presumed valid. And the defendant is going to make the same arguments for invalidity. It’s probably very rare when a given defendant in a given patent infringement suit would lose based on the C&C standard but win on the preponderance standard; these standards are not exact and a judge swayed by an argument for invalidity (or not) is likely to usually have the same conclusion regardless of the standard of proof.

Now, I hope the Court does side with Microsoft. This would be minor improvement in the law. Not a major one at all–the patent is still presumed valid; the defendant still has the burden of proving it invalid; the burden would be slightly less difficult to satisfy, but only in a narrow subset of cases where the argument is not that the Examiner made a mistake (failing to realize the patent was too similar to the prior art he considered) but that the Examiner didn’t have the relevant prior art in front of him. But it would be a good change–which is why I proposed in an earlier article, “Reducing the Cost of IP Law,” that the patent law be revised to “Remove the presumption of validity that issued patents enjoy.” That would be a real change, and a much better one than merely reducing one vague standard of proof to a slightly lower one in a narrow set of cases.

But as I noted in “Radical Patent Reform Is Not on the Way,” patent attorneys and others with vested interests describe even the smallest improvements in patent law (by which I mean changes that weaken it) as radical and drastic, hysterically predicting all manner of horrible fallout. In this case, one commentator calls this “the most important Supreme Court patent case of the new century.” The Chairman of i4i, the plaintiff, moans that a victory for Microsoft would “result in is tremendous uncertainty for anyone who owns a patent . . .  It would be a sea change in the operations of the patent office and would be a dramatic body blow to the health of the U.S. patent industry and the value of patents.” What nonsense.

As Zura mentions in his post, “In the meantime, the USPTO applicants will likely inundate the USPTO with prior art submissions.” Yes, prior art submissions will increase to reduce the chance that a defendant will find prior art that had not yet been “considered”–although if you bury the PTO with prior art submissions it’s unlikely the Examiner can study them all. This is in fact one reason why the PTO has proposed rules in the past to require Applicants to explain the relevance of each submitted reference, in an “Examination Support Document,” if they submit more than some minimum number. (See Patent Baristas, Examination Support Document (ESD) Could Add $26,000 to Patent Costs.) In “Reducing the Cost of IP Law,” I proposed this change:

Require patent applicants to do a search and provide an analysis showing why their claimed invention is new and nonobvious (patent attorneys really hate this one).

They hate it because they hate being on record; they hate saying anything in writing that can later be used against the patent’s validity. They want to keep their options open. I say: it is patent applicants who are begging the state for a monopoly grant; the monopoly is supposed to be granted only if the invention claimed is novel and non-obvious over the prior art; the Applicant is supposed to submit all the material prior art he knows of; and the patent “prosecution” process is ex parte, not adversarial, meaning that the potential defendants are not present during patent prosecution so can’t represent themselves. Therefore it is only fair that the Applicant explain exactly why and how his proposed monopoly privilege grant satisfies the legal criteria. It would result in narrower and more reasonable claims and would help to fill the inevitable gaps in the quality of the examination.

So, if the Court does side with Microsoft, and this results in Applicants filing more IDSs (information disclosure statements), the increased burden on the PTO Examiner may well lead to renewed calls for an Examination Support Document requirement. This would be good. But, alas, also minor.

{ 36 comments }

Walt D. November 30, 2010 at 12:17 am

Stephan – legal question.
I’m sure you’ve answered this before, but I seem to recall that once a patent is granted, that the plaintiff can seek an injunction against the defendant, which there court will issue pending the lawsuit, and in some cases, such as Blackberry, the threat of being shut down causes the defendant to settle out of court, even if there is a valid claim (by whatever standard of proof) that the patent was improperly granted.
Is this true?

nate-m November 30, 2010 at 12:51 am

Yeah. Getting a injunction against a company infringing a patent is absolutely a possibility.

It’s _REALLY_ f-ing hard to invalidate a patent. I mean that is some _serious_ stuff.

It’s akin to the ‘temporary insanity’ plea in a murder case.

Your admitting to the judge that you absolutely am violating the patent, you know it and your admitting to it, but the patent is invalid so you should be let go with no consequences.

Think about what that means.

It’s far easier to fight and say your not really violating the patent. And to do that you try to narrow down the language of the patent in such a way that your not covered by the patent. The other party will try to widen the scope of the patent until you have no hope of escape.

Stephan Kinsella November 30, 2010 at 2:43 am

Well, you can argue multiple defenses. You can argue that (a) we don’t infringe the patent, and (b) anyway, the patent is invalid.

Stephan Kinsella November 30, 2010 at 2:46 am

Yes; it is slightly harder to get an injunction now but it is still possible. See some of my former posts: http://blog.mises.org/11521/libertarian-patent-lawyer-defends-patent-law/
and http://www.stephankinsella.com/2009/08/comment-on-koepsells-a-methodical-response-to-chris-holmans-review/
and
http://blog.mises.org/8674/shaping-nuanced-patent-injunctions/

see also the “Remove Patent Injunctions/Provide Compulsory Royalties ” section of the Reducing the cost of Patent Law article linked above. See also the discussion of the eBay case in the Reducing the Cost … article above — esp. note 15 http://mises.org/daily/3702#note15

eric November 30, 2010 at 1:02 am

The patent is so stupid. It claims it invented the idea of placing meta data about data into a separate file. I don’t even see that their patent had anything to do with xml, but simply separating two parts of a file into a description and the data. Big Deal.

Let’s see, apple’s original file system had every file with separate meta data in one fork, and data in a second fork. Prior art.

Hell, I even did this before personal computers even existed. And unix certainly did this. The case, though, is really about burden of proof, but I can’t help laughing at the stupidity of the patent clerk. They sure don’t have any Einsteins working at the patent office anymore.

Stefan Murry November 30, 2010 at 8:46 pm

Eric,

You should have filed a patent on your work, you’d be rich now.

I’m not defending the patent system, but for better or for worse it’s the law of the land. How many times have you seen an item that you had conceived years before suddenly for sale and making money for someone else? Ever hit yourself on the head and think…I thought of that first?

Well, you may be a great “idea man”, but you didn’t recognize the value in your work and try to make money with it. That’s the essence of capitalism…the right of the individual to take the fruits of one’s labor or superior genius and turn it into money.

It seems kind-of anti-capitalist to make the argument that the inventor of something has ultimate ownership of that thing no matter whether he ever made any attempt to offer the fruits of his genius to others (in exchange for money, for example, i.e. “selling it.”).

Consider what would happen if we simply abolished the presumption of validity. Without the presumption of a patent’s validity (or some high standard for proof of invalidity), we’d be forever mired in lawsuits alleging that somebody, somewhere, sometime invented the “thing” that a particular company or individual is making money from. Whether or not they ever invested in any attempt to bring allow this idea to benefit other members of society by selling it. Indeed, even today if you make ENOUGH money off a patent, it’s quite likely that someone will sue you to try to get a piece of your profits.

All that reducing the standard of proof will do is make the barrier to this type of lawsuit abuse even lower than it is already.

Anthony November 30, 2010 at 10:30 pm

Stefan,

You are defending the patent system by assuming that it is legitimate and saying that changing it would be bad. Regarding your first argument “it is the law (so we should accept it?)”, it is both pointless logically (if the rule was changed then the new law would be “the law”) and it has nothing to do with whether it is just or not.

As for you second section, am I correct in interpreting your argument as “by not assuming patents are valid, more patents would be challenged by people who don’t think that the patent is deserved”? If so, then I hardly think this would count as lawsuit “abuse” since the only ones who would be harmed are those who using dubious patents to stopping legitimate businesses from operating. Patents are not as beneficial to society as most people think they are.

Stefan Murry December 1, 2010 at 10:43 pm

Anthony,

My comment about “the law of the land” is aimed at Eric’s first comment about the patent being “stupid”. The point I am making is that under a system that rewards monopoly powers to individuals who manage to squeak “inventions” of dubious value through an overburdened and under-resourced bureaucracy, it would be stupid NOT to file patents on everything you could possibly think might have a prayer of getting past an examiner. I am not defending the law by pointing out that it is, in fact, the law, but I am attacking the premise that under this system a patent such as the one that Eric thinks is “stupid” is actually not stuipd at all.

As to your question whether you are interpreting my argument correctly, essentially “yes.” We would be mired in many more lawsuits over patent validity than we have today, and many of these would themselves have little merit (as is the case with most other types of lawsuits). What is needed here is some recognition that merely conceiving an invention should not automatically confer “ownership” of that invention. The hard work of taking that invention and making something useful (i.e. beneficial to society) out of it must be rewarded. The threat of endless lawsuits from alleged “inventors” would be a strong deterrent to bringing new innovations to commercial fruition.

Contrary to your assertion, I would argue that a huge tide of lawsuits actually can harm legitimate suits, because they will they be mired in a court system that is now overwhelmed with frivolous cases.

Here are some concrete ideas to flesh out this point. In all cases, assume that we lowered the bar for proof of patent invalidity, how might we remedy the deterrent to commercializing innovation?

How about instituting a loser-pays system for patent invalitidy suits? If you sue and successfully prove the patent is invalid, you get damages. If you lose, you pay damages (or at least the total cost of the suit, including both sides’ legal fees).

Or, shift the presumption of validity such that the first company to make commercial use of an invention is presumed to have invented it (unless another inventor makes a credible claim that the idea was misappropriated from him). Incidentally, the idea here is that merely conceiving of the invention should not be enough to deserve monopoly rights. Conceiving of an invention AND BRINGING IT TO MARKET is what benefits society and therefore what should be rewarded.

Just a few thoughts. I am sure there are other ideas out there for reform.

Peter December 5, 2010 at 4:54 am

Do you read xkcd? http://xkcd.com/827/

Ohhh Henry November 30, 2010 at 10:43 am

They sure don’t have any Einsteins working at the patent office anymore.

But consider what would happen if patent applications were reviewed intelligently. Fewer patents would be awarded, companies would make fewer patent applications, there would be fewer lawsuits, and the government would have to reduce the size of the patent office and the court system.

Therefore running an efficient patent office would lead to a decrease in the size, power and revenues of the government monopoly. That is why both patent awards and litigation outcomes tend to be capricious, contradictory and prone to causing strife in the private business world. Wrecking private business is good for government business.

Andras November 30, 2010 at 1:08 pm

Henry,
Try to look beyond the government and your hate of it. Consider the possibility of an alternative Patent Office which works as a private Title Office like it does in real estate affairs.

Stephan Kinsella November 30, 2010 at 1:24 pm

Andras: hahaah. yeah, like you can envision a private “title office” that “recognizes” claims to social security, a “right to an education,” and so on. yeeeaaaaah…….

Andras November 30, 2010 at 2:01 pm

Let’s talk just IP!

Peter Surda December 1, 2010 at 4:49 am

Andras,

try to avoid the pitfalls of normative approaches and realise the logical implications. Since IP contradicts physical property, any enforcement of it, regardless whether private or governmental, would need to violate physical property. There is no way around it. “Private IP” would be, from a functional perspective, organised crime. That of course does not mean it wouldn’t exist, only that the reason for its existence would be different than those presented by IP proponents.

Andras December 1, 2010 at 1:11 pm

Peter: “try to avoid the pitfalls of normative approaches and realise the logical implications.”
I am just doing that. I have just visited Yosemite again during the holidays. In the visitor center there was a picture of an old indian woman, the last survivor of the 1851 raid (genocide) executed by the Mariposa Regiment. People lived on their homesteaded land for centuries and then they were killed for the current “homesteaders”. Their only sin was to live on a prime land. Can’t you see? Homesteading is absolutely arbitrary both in its ways and scope. IP is not different in that. The only differences are that IP is 1) temporary, it is valid only while it gets internalized in the economy and 2) infinite in quantity of future potentials.
Yes IP contradicts physical property. But even physical property contradicts physical property. One has full control over it and others are limited or excluded. That is why it is called property. All enforcement, let it be private or state, is organized crime from the viewpoint of the excluded if you have only short term scope.

Stephan Kinsella December 1, 2010 at 1:53 pm

this is incoherent. in the same post you decry the taking of the Indian’s land, which requires you to adopt at least implicitly some kind of homestading view to justify your classification of the act as stealing etc. Then you turn around and say it’s arbitrary.

Andras December 1, 2010 at 3:06 pm

Of course, I have a homesteading view! I am just saying it is all arbitrary! Whatever “society” decides that will be the law. You can have better laws or worse laws depending upon how well they align with long term objectives. Again, laws of homesteadings are subjective and individuals act accordingly. IP is not different.
I cannot but agree with Mises.

Peter Surda December 2, 2010 at 6:39 am

Andras,

first of all, you demonstrate that if various groups of people have different opinion about boundaries of property rights, an attempt to enforce these rights will result in a violation of rights of at least one of them (i.e. violence). Which is exactly my point.

Your second point is conflating arbitrariness with self contradictions. Those are different issues. Arbitrariness is a question of normative scales. Self-contradiction is a logical issue. To put it into another way, no matter how much you are morally outraged, 1 plus 1 does not become 3.

Altogether, your argument boils down to: we cannot argue, so we’ll fight. But by actually arguing, you contradict yourself.

Andras December 2, 2010 at 12:06 pm

Peter,
We have no IP conflict, we wouldn’t discuss it if we had. My whole point is that I try to prevent to have IP conflicts by showing them that they are wrong.

Peter Surda December 2, 2010 at 3:10 pm

Andras,

apparently you completely miss the point of my argument. IP is an attribute of physical property, rather than a separate existence. If it had a separate existence, there would be no IP debate. If you have physical property, you cannot at the same time have IP. If a person can own a wheel, another person cannot own “roundness”. The approaches are mutually exclusive, they interpret the same scope using different decision criteria. As long as people insist on IP, they will come into conflict with people who insist on physical property.

Andras December 3, 2010 at 5:40 pm

Have you considered that roundness has not enough novelty (and progressive practicality) to deserve IP? But a chemical, never seen before and able to cure an orphan disease, I think its structure is worthy of IP.
Conflict between physical and IP is not an argument against the latter.
You just can not see beyond physical. Stay at physical then. Even if you own your car you are still not antitle to do whatever you want thus your ownership is limited. Comprehend also rent, lease and other similar possibilities.

Peter Surda December 4, 2010 at 4:41 am

Andras,

you seem to be so extensively biases that you ignore elementary logic. The problem is not whether I can “see beyond the physical”. The problem is you contradicting yourself. Do you understand what a contradiction is?

Wildberry December 1, 2010 at 2:36 pm

“But consider what would happen if patent applications were reviewed intelligently. Fewer patents would be awarded, companies would make fewer patent applications, there would be fewer lawsuits, and the government would have to reduce the size of the patent office and the court system.”

I’m with you right up to here. I loose you on the conspiracy theory, and the conclusion that therefore, there is nothing of value or salvagable in a concept of “property in IP”. That is quite a leap.

Anthony November 30, 2010 at 10:34 pm

Title offices in real estate deal with “real” (as in genuine) property, your title office system for IP would only work if one could actually own ideas in some non-arbitrary (thus universally applicable) way…

Stephan Kinsella November 30, 2010 at 11:21 pm

Right. Disputes are always disputes over real, scarce resources. So if there is civilized society and they want to settle disputes in a civilized way, then in some forum or legal system we would ask: who owns this resource? Who has the better claim to it? For land (immovables), you would tend to have some records in a title office that serves as evidence for who has the best claim to a particular tract. For personal property (movables) there are other ways of figuring out the owner–this is evidence and procedural law.

Now, the thing is that when someone claims ownership of a given pattern or logos or idea they are never just satisfied to say this. They want to enforce this claim against real things–other people’s bodies, property, money, and so on. So you can see that here the dispute is really one over scarce things. So the inventor P of a mousetrap wants to be able to tell a third party T that T cannot use his own property in such and such a way. P and T now have a dispute about these resources–T’s body, T’s land, T’s wood and factory etc. So they go to court, and using standard legal procedures it’s easy for T to show that HE owns these things. So that’s really the end of the story. For P to try to “File a claim” to an idea is really filing a claim to have partial ownership over all the bodies and property everywhere in the world. This claim would be rejected as an invalid claim.

Wildberry December 1, 2010 at 2:23 pm

Stephan, “So if there is civilized society and they want to settle disputes in a civilized way, then in some forum or legal system we would ask: who owns this resource? Who has the better claim to it?”

I agree. Property entails rights in relation to something you own. Disputes are non-violently resolved by a methodology that produces a finding of “better title”.

Land is one type of property, and the nature of land (can’t be copied”) has an impact on the methodologies of resolving disputes about ownership. Chattel is handled differently, as you point out.All property rights are acquired ultimately by claiming and defending your “better title”. Once proved, one has “good title” to it. As you point out, there is no better title than homesteading, or being a bonafide purchaser from someone who did. However, I would argue that homesteading alone is insufficient, since title is in fact indisputably owned despite a lack of showing that a homesteading act has occurred at the outset.

All property seems to have some attributes in common. I like Nock’s concept (is this his?) that property has a “use value” and an “economic rent value”. If IP was in fact “property”, it would also have these attributes. Ownership implies a monopoly in the enjoyment of these values.

Without going into all of the details about what attributes must be proven to acquire title to IP rights, once acquired, you enjoy the right to exclude others from using the “property value” which you legitimately own.

All property rights impact the range of freedom others have in the use of their own property. I recently discussed this in terms of “my bat” and “your car”. If I use my bat in ways that damage your car, you have a right to retribution for the damage I caused. Hopefully, this right to retribution will have a deterrence effect on your calculations concerning your freedom to use your property in any way you wish. What’s wrong with that? It seems to have the quality of avoiding conflict.

“Now, the thing is that when someone claims ownership of a given pattern or logos or idea they are never just satisfied to say this. They want to enforce this claim against real things–other people’s bodies, property, money, and so on.”

Is there something wrong with this, in light of my understanding above?

I would argue that the dispute, which is indeed over real things, like money, is a dispute over misappropriated market value; for example an income from trade is not flowing to the person who owns the means of production, and has better title to the traded good.

This means of production is composed of several things, one of which may be a set of ideas, most of which are already in the public domain. But these “free good” ideas are insufficient to prove that a copier has better title than the author or original producer.

In a common-sense way, it takes more than an idea to produce something, especially something unique. Likewise, it takes more than letters of an alphabet, which are in the public domain, to author a book.

Don’t you agree?

Wildberry December 1, 2010 at 2:32 pm

despite a *lack of a* showing that a homesteading act has occurred at the outset.

Peter Surda December 2, 2010 at 8:01 am

All property seems to have some attributes in common. … If IP was in fact “property”, it would also have these attributes.

Here’s your problem. IP does not have attributes, IP is attributes. IP is the shape, colour, sound, or in general, the meaning of things.

I would argue that the dispute, which is indeed over real things, like money, is a dispute over misappropriated market value; for example an income from trade is not flowing to the person who owns the means of production, and has better title to the traded good.
What does it mean “misappropriate market value”? What is “income from trade”? Why should it flow to someone who is not a party to the trade?

This means of production is composed of several things, one of which may be a set of ideas, most of which are already in the public domain.

This is a metaphorical interpretation. Ideas are not a complement to physical assets, they are another way of interpreting the same. That’s why the argument fails: it requires double-counting of reality.

I’m sorry I haven’t responded to your other posts yet, I have a terrible backlog.

Wildberry December 2, 2010 at 1:49 pm

Peter,
“Here’s your problem. IP does not have attributes, IP is attributes. IP is the shape, colour, sound, or in general, the meaning of things.”

Don’t get ahead of the argument. I said property has attributes. IF that “thing” we are generalizing (for the moment) as “IP” is in fact property, under any theory or property, THEN, it has attributes in common with other property.

What is property? It is a word which conveys a set of rights, which are enforceable by some means. To not enforce a right is to not have it. It also implies that it has the attribute of being capable of ownership. (Property; 1.c. Something tangible or intangible to which its owner has legal title. 2. The right of ownership, title. American Heritage Dictionary)

“What does it mean “misappropriate market value? What is “income from trade”? Why should it flow to someone who is not a party to the trade?”

This has the meaning of simple language. If I trade on property that that I don’t own, the income from that trade has been misappropriated from its rightful owner. This is not unique to an IP context. It applies equally to fencing stolen goods and to insider trading, where the only “good” is actual information, which is completely intangible. “Misappropriation” is just a legal term of art which conveys the nature of the injustice and supports a theory of retribution.

“This is a metaphorical interpretation. Ideas are not a complement to physical assets, they are another way of interpreting the same. That’s why the argument fails: it requires double-counting of reality.”

I’m really not sure what you are saying here.
I don’t know that ideas are not a complement to ALL physical assets, with the possible exception of naturally occurring things, like land and minerals, etc. Even there, once we create a boundary, ideas become a complement. Certainly they are a complement (I prefer the word component) to manufactured goods. The “how” of manufacturing is ideal, not tangible. It only becomes tangible when one actually assembles the machinery, the resources, and manifest these ideas in some tangible good. In this way, the ideas are a “component” of the tangible good, since it would not exist, and further, could not be owned, without them.

On the other hand, tangible goods are not composed entirely of ideas. In any case “pure” ideas are excluded in all theories of IP law. Pure ideas are in the public domain, just like the alphabet is.

How is this a double-counting of reality? If I count the letters in a book, and the letters in the alphabet, am I double counting?

“I’m sorry I haven’t responded to your other posts yet, I have a terrible backlog.”

No worries. I am gratified that you are willing to continue the dialogue. I will continue to monitor for your inputs.
Regards,

Peter Surda December 3, 2010 at 4:29 am

I said property has attributes. IF that “thing” we are generalizing (for the moment) as “IP” is in fact property, under any theory or property, THEN, it has attributes in common with other property.

While this is correct, it misses my point. My point is that you cannot have a model that simultaneously uses objects and attributes as a decision criterion, since they cover the same scope. They are a different way of interpreting the same scope. If you try to use both as a decision criterion, you would end up with a contradictory requirement (= double counting).

Wildberry December 3, 2010 at 1:14 pm

Peter,

“My point is that you cannot have a model that simultaneously uses objects and attributes as a decision criterion, since they cover the same scope. They are a different way of interpreting the same scope. If you try to use both as a decision criterion, you would end up with a contradictory requirement (= double counting).”

Let’s explore that, including your response to Andras where you use the example of a “wheel” and “roundness”.

Objects may have more than one attribute. To distinquish them is not the same as “double counting” because the wheel has “roundness” and “hardness” “thickness” and “diameter” etc. All of these attributes are an integral part of “wheel”.

You could define a wheel by listing these various attributes, or you could simply point to a wheel and say “There! That’s one”. To do so is not double counting, or asserting that the wheel you point to is one wheel, and the list of attributes is another wheel, and so we have two wheels. Objects have attributes. Because we can see them, touch them, and otherwise conceptualize them, we can distinguish them from the background.

If we had never encountered a wheel or a table, but only had the list of attributes, and we were in a room with a wheel and a table, that list would allow us to say “this is a wheel”.

IP is like that. It is an object to which we assign certain attributes. One such attribute may or may not be “property”. An object may (and probably does) have ideas integrated into it. Unless the wheel we are discussing was a naturally occurring object, like a mountain, it has its origin in a production process. This process necessarily involved ideas, as well as labor, tools, and raw material. For example, the idea of “roundness” is integrated into the process, and therefore is an attribute of the object thus produced, i.e. the wheel.

The scope of “wheel” is equal to all of the attributes we can conceptualize, plus the ones we can’t. Just because we don’t conceptualize them, doesn’t mean they don’t exist. One person’s list of attributes may not include a “rigid matrix of crystallized minerals originating from igneous rock”, but that would not mean that attribute doesn’t exist. On the other hand, this attribute may not be necessary for our purpose of distinguishing a wheel from a table.

So, the scope of attributes we select are a subset of all that exist, and sufficient to serve the intended purpose. Such a scope would be comprised of both the object itself, and the list of attributes we construct to distinguish it from other objects. The attributes are representations of something, while the object is the thing itself, which has these attributes. Language is required to convey attributes, while no language is required to distinguish an actual object. One is a symbolic representation, and the other is the thing itself. There is no contradiction here.

Anthony December 5, 2010 at 12:00 am

And you maintain that one can own “attributes”?

Wildberry December 6, 2010 at 11:53 am

Anthony,

Attributes of a thing are integrated into the thing itself, they are inseperable. How can you separate something into its attributes on the one hand and the thing itself on the other?

You cannot remove “roundness” from a wheel, unless you change the attributes of the wheel such that it has “squareness” instead. A wheel cannot have both, at least not at the same scale of description.

An attribute is a conceptualization of how a thing behaves or is situated, etc. in relation to the natural world, of which it is a part.

It is possible to alienate certain attributes from others, such as mineral rights from land. The land and it’s minerals still exist, adn can be described and distinguished from other attributes, and the context from within which it is perceived. One may own the attribute “land” without owning the attribute “minerals” on that land. Where is the contradiction?

What is your point?

Peter Surda December 5, 2010 at 7:09 am

Wildberry,

you cannot simultaneously own objects and their attributes. That is a contradiction. Merely reinterpreting the same phenomenon in a different way does not fix the problems.

Are you familiar with a set theory and what disjunct sets mean? Unless the definition of property rights is based on disjunct sets, the definition fails its purpose, because it becomes impossible to determine which actions are legitimate and which are not. IP theorists typically mistakenly assume that introducing IP increases the size of the superset including all property rights. But that’s false. Physical property rights already cover everything. Introducing IP merely creates quasi-random subsets in the already existing superset. As long as these subsets are not empty, they only include elements which are already members of the superset, thereby creating a non-empty intersection. The intersection is equivalent to a contradiction in the theory explaining the phenomena.

Interpreting the sets in a different manner (= using different attributes) does not change the amount of their members or the existence of intersections. The intersections (= contradictions in the theory) are the problem.

Wildberry December 5, 2010 at 7:43 pm

Peter,
“you cannot simultaneously own objects and their attributes.”

I don’t get this. How can you define an object without distinguishing its attributes? How can you own an object, and not also obtain the attributes of that object? Even if you tried to do so, like selling the mineral rights of land while keeping possession of the rest requires that I have all of the attributes of that land in the first place. I must be missing something. Is this symantics?

I’m familiar with set theory, if that is what you are referring to. I think all you are saying is that subsets cannot exist outside of the superset to which they belong. To say otherwise would be contradictory. I agree.

Interpreting the sets in a different manner (= using different attributes) does not change the amount of their members or the existence of intersections. The intersections (= contradictions in the theory) are the problem.

Sorry I don’t get this.

Set [book] contains [paper], [cardboard], [thread], [ink], [glue], [letters of the alphabet], [ideas]. All belong to the supersets of {all books} {all paper} {all cardboard}, etc.
The [ideas] in the set [book] are a subset of the superset {all ideas}. Attributes can be said to distinguish a subset from the superset or subsets from one another. The members of set [book 1] cannot also be members of [book 2] etc. Where is the contradiction?

I really don’t see what you’re getting at.

Jeffrey Gross December 6, 2010 at 6:25 pm

I find it difficult to take seriously a post which ridicules those advocating a different view, as this one does w/ patent lawyers (“hysterically,” vested interests,” etc.) As if Microsoft doesn’t have vested interests! Indeed, the vested interests of MS, Intel, etc., are to be able to use others’ IP w/ impunity. If the law needs to be changed, fine, but let’s not kid ourselves about motivations. As to this particular change: patent examiners examine patents, acting on behalf of the Executive. That’s all they do. To presume that an issued patent is valid – but w/ the possibility of invalidating it later – is merely to presume that the PTO knows what it’s doing on a general level. I won’t even mention the cost and time required to get a patent, since I suspect that’s not on the columnist’s radar screen. But to me the mild weighting of power in favor of a patent that’s made it through the system – as opposed to the many that are never declared valid and that are stillborn, so to speak – seems like little more than common sense.

Comments on this entry are closed.

Previous post:

Next post: