slickricks (![[info]](http://p-stat.livejournal.com/img/userinfo.gif){kind=small} slickricks) wrote,@ 2006-03-19 20:12:00 |
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Intellectual Property Rant
As someone destined for law school, and who might possibly be litigating a case such as this one, i have to admit that the private ownership of facts, methodologies, and strategies is a distrubing and unfortunate development in the American legal system. I understand that patents are necessary to compensate entrepreneurs for the high costs of investment and, even further, to reward them for their idea which society found valuable, as is the case with trademarks, copyrights, and most complex products that require more than one or two inputs to production. I even understand that some of the potential patents like specific recipes or products designed with publicly funded research and development (i.e. pharmaceutical drugs) would be undesirable, but would qualify for a patent according to some legitimate criteria resembling our current policy. However, owning more basic forms of knowledge is where there seems to be some kind of transgression; pragmatically this seems to be the case as well. By establishing monopoly rights to a basic idea, from which many other ideas could reasonably develop, the government would establish artificial barriers to the means of production: in this case preventing the use of those ideas.
If the ideas are end-ideas, as opposed to means-ideas, the government would only be ensuring that firms do not have their competitive advantage stolen. A means-idea does not comprise a competitive advantage in itself except as an intermediary idea towards some other final end or product. For example, one could not patent the idea for a business to require that their workers wear a uniform to improve morale, but one could certainly patent a specific uniform design. One could not patent the idea that butter is a good ingredient to use while making cookies, but one could patent a specific recipe that is used to commercially sell cookies. One could not patent the fact that treads on a tire help give it traction, but one could patent a specific tread pattern. In each case, specificity ensures that the patent is used to protect an end idea. The means just suggest the possibility of ends; they do not warrant protection because they have no value without those ends. Insofar as some ideas may play a dual role and simultaneously prove to have value to society and create vast potential for further ideas, they warrant patent protection. For example, one could not patent the idea to store all kinds of data on a device called a computer, but one could certainly patent an operating system and the specific pieces of the hardware (but not necessarily the principles of how those pieces of hardware interact, unless they are unique to one individual design). A pharmaceutical company may map the genome of AIDS in its specific attempt to produce a patented commercial vaccine, but it may not patent the genome in the process; again, the test is whether or not the patent in contest is an end-idea or a means-idea. Other companies could have come to the same knowledge without the unique effort of the patent-holder, nor does it constitute abuse on the company that chose to spend that money on R&D; government funds exist for such purposes and they could choose not to publish their findings in peer-reviewed journals if they chose to, but the whole peer-review mechanism ensures a free market of knowledge in academia, a largely means-exclusive field. Even in the case where academia produces something valuable enough to produce as an end, academic institutions do not have the capacity to produce the end, so it would have to license specific production to another company anyway. Also, by making this test an official policy, there would be far less abuse in the form of overly litigious lawsuits about patents, because no one could legitimately complain of patent violation without having a clear justification and evidence of a violation. Coming to understand some relationship, strategy, or fact about the world which has no value or suggestable ownership in and of itself, should never be punishable by someone else's legal ingenuity. Conversely, an end-idea always sugests ownership (by that of the producer) and has value or it wouldn't be contested at all.
Ok, so that's my rant...Please don't Bork me.
As someone destined for law school, and who might possibly be litigating a case such as this one, i have to admit that the private ownership of facts, methodologies, and strategies is a distrubing and unfortunate development in the American legal system. I understand that patents are necessary to compensate entrepreneurs for the high costs of investment and, even further, to reward them for their idea which society found valuable, as is the case with trademarks, copyrights, and most complex products that require more than one or two inputs to production. I even understand that some of the potential patents like specific recipes or products designed with publicly funded research and development (i.e. pharmaceutical drugs) would be undesirable, but would qualify for a patent according to some legitimate criteria resembling our current policy. However, owning more basic forms of knowledge is where there seems to be some kind of transgression; pragmatically this seems to be the case as well. By establishing monopoly rights to a basic idea, from which many other ideas could reasonably develop, the government would establish artificial barriers to the means of production: in this case preventing the use of those ideas.
If the ideas are end-ideas, as opposed to means-ideas, the government would only be ensuring that firms do not have their competitive advantage stolen. A means-idea does not comprise a competitive advantage in itself except as an intermediary idea towards some other final end or product. For example, one could not patent the idea for a business to require that their workers wear a uniform to improve morale, but one could certainly patent a specific uniform design. One could not patent the idea that butter is a good ingredient to use while making cookies, but one could patent a specific recipe that is used to commercially sell cookies. One could not patent the fact that treads on a tire help give it traction, but one could patent a specific tread pattern. In each case, specificity ensures that the patent is used to protect an end idea. The means just suggest the possibility of ends; they do not warrant protection because they have no value without those ends. Insofar as some ideas may play a dual role and simultaneously prove to have value to society and create vast potential for further ideas, they warrant patent protection. For example, one could not patent the idea to store all kinds of data on a device called a computer, but one could certainly patent an operating system and the specific pieces of the hardware (but not necessarily the principles of how those pieces of hardware interact, unless they are unique to one individual design). A pharmaceutical company may map the genome of AIDS in its specific attempt to produce a patented commercial vaccine, but it may not patent the genome in the process; again, the test is whether or not the patent in contest is an end-idea or a means-idea. Other companies could have come to the same knowledge without the unique effort of the patent-holder, nor does it constitute abuse on the company that chose to spend that money on R&D; government funds exist for such purposes and they could choose not to publish their findings in peer-reviewed journals if they chose to, but the whole peer-review mechanism ensures a free market of knowledge in academia, a largely means-exclusive field. Even in the case where academia produces something valuable enough to produce as an end, academic institutions do not have the capacity to produce the end, so it would have to license specific production to another company anyway. Also, by making this test an official policy, there would be far less abuse in the form of overly litigious lawsuits about patents, because no one could legitimately complain of patent violation without having a clear justification and evidence of a violation. Coming to understand some relationship, strategy, or fact about the world which has no value or suggestable ownership in and of itself, should never be punishable by someone else's legal ingenuity. Conversely, an end-idea always sugests ownership (by that of the producer) and has value or it wouldn't be contested at all.
Ok, so that's my rant...Please don't Bork me.
