FedSoc Blog

As someone who works in both places and both environments, there is not a dime's worth of difference in how we operate on scholarship. Even on blogs and communications, the differences are also small because both places have full-time communications types who work more or less the same way. The inventors and the assignments cloud all relationships, but not much. Again the ability to make internal adaptations in firms is what drives all successful schools and think tanks.

RAE

Hi,

Let me comment, again as kind of an interloper, on the natural law point. I do so as someone who is raised in that tradition, as started in Roman times. But natural law does not cover this case, as understood by its own advocates. The natural law types all agreed that fundamental relationships were governed by the natural law. But they were equally emphatic that the means of their implementation could, and should, vary across culture. So while all societies have a law of contract, all societies do not use the same system of formalities to sanctify contracts. The recording question is always on the formality and implementation side, and thus by the earliest formulations was left to state-specific solutions. And the constitutional originalists, who took from the Romans on this point, had exactly the same view. A recordation system that overturned “prior-in-time is higher-in-right” was upheld very early on, even though it violated the maxim nemo dat quod non habet. No one could convey what he did not own, because of the greater security of transactions. To repeat, this is a profound and important instrumental debate. But it is not one in which natural law or originalism points in only one direction.

Richard

Since originalism has been raised, I think it worth making a few observations:

The phrase "first and true inventor" in the Patent Act of 1790 was most likely borrowed directly from the Statute of Monopolies. In England the phrase had long been interpreted to permit patents of importation. I have been persuaded by Walterscheid among others that there is no reason to believe that the Founders would have considered unconstitutional a grant of rights to a first inventor to file.

To the contrary, there is evidence that even derivation from foreigners would not have been considered unconstitutional. Consider, for example, the Society for Establishing Useful Manufactures set up by Alexander Hamilton and Tench Coxe to raid English textile intellectual property in 1791.

Moreover, although Jefferson overruled Randolph's suggestion for a first-to-file rule at the first federal interference proceeding, Jefferson is hardly an ally to friends of the patent system. It seems to me that Jefferson felt his carve-up was the best way to weaken the rights of both of the inventors present that day.

To Richard’s post on how the Hoover Institution and the University of Chicago operate on scholarship and on blogs and communications: Really? I would have thought Chicago did a better job on both.

If a "think tank" could extract a tax on a university (but not vice versa) for every paper the think tank published, don't you think the think tank would be in a better position to convert ideas to papers faster?

On the constitutional point, I am wondering if Adam would agree that the "promote the progress" provision gives Congress the *option* to create a patent system, but does not *require* Congress to create a patent system?

Hi,

Hoover is a complex institution within a university with all sorts of transfer payments back and forth. Come to think of it, so is the law school at the University of Chicago. Both have semi-autonomous status. My view is that the choice of rules for publication is way down on the list of what makes these places run. So long as SSRN is cheap, the differences come in how support is provided.

Cheers,

R

I'm sorry for the delay in responding, as I have been busy in the patent reform fight, participating in panels in Hill briefings and speaking with House Members about all the ways that the America Invents Act is a bad bill -- from its constitutional problems in section 2 (first to invent) and section 18 (a regulatory taking of business method patents in financial services) to its many innovation-killing provisions, such as its elimination of the grace period, the investment-destroying cloud on the title in the post-grant review procedures, and the uncertainties and costs created through the completely novel and untested administrative proceeding for derivation claims. The briefings themselves, which are regularly attended by upwards of 100 legislative staffers or more, have been great. The U.S. Business & Industry Council, which has been leading the charge in the fight against the patent reform bill, has been bringing in a good range of people to speak on all the issues, from the constitutional concerns to the economic analysis of innovation to investment problems for venture capitalists to the difficulties for universities raised by this bill, among others.

As of this morning, it appears we have achieved at least a tactical victory in raising enough questions among the Members that the vote on the bill will not occur this week.

But I'm always more than happy to talk about the broader theoretical issues underlying this debate, and to discuss it with such notable notaries as Richard and the other members of this list. As someone who was also raised in the natural law tradition and still views himself as working within this tradition, I do have some concerns that Richard is painting "the tradition" with too wide a brush when he claims that natural law advocates were emphatic about the variance of the principles of natural law across cultures. Since I'm the one who stands outside much of the conventional wisdom today concerning the patent system -- specifically, I do not think the patent system is justified only in instrumental terms -- I'm going to have to take a much longer time to explain my positions, and so I apologize in advance for what will likely be another lengthy email.

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Adam,

In your view, would it be a violation of natural law for Congress to neglect/decline to set up a patent system? Would such a failure be unconstitutional?

On the policy considerations of first-to-file versus first-to-invent, I initially supported first-to-file, then argued myself into supporting first-to-invent. I was discussing this topic with a friend today who made two good points I had not considered before, which may have tipped me back to first-to-file.

(1) First-to-invent leads to greater uncertainty about what prior art applies against an issued patent, as the invention date is generally not disclosed to the public. This creates greater uncertainty as to patent validity.

(2) One of the goals of the patent system is to encourage disclosure of inventions so others can access and build upon them. A system that encourages earlier filings disseminates information faster.

Also, as to number one, our current first-to-invent system creates doubts about patent validity because defendants can seek to invalidate patents based on 102(g)(2) prior art of uncertain invention date.

Best,

David

Adam:

First, let me thank you for doing all that leg work. The difficulties of the legislation are manifest, and you have hit the high points.

I just got to look at this and think that Corporate Patent Counsel’s question is a fair one, because I see no duty under the Constitution to create the patent system, for Article I, Section 8 specifies a power, not an obligation, to create this system. I also believe that everyone expected this power to be exercised, for otherwise the want of a federal power would leave a huge gap given that no state laws could go in this area. As to the ends, they are a cross between utilitarian and natural law, progress looks forward, secure is back to Locke and natural and the Declaration. But there is no real conflict here because I think that the utilitarian foundations of natural law are there for the taking. And on this point, Adam is right about mutability and labor, but the first possession rule for land allows for easy self-help that patent protection does not. So the question of whether to create that system and how far to extend it depends a lot on technology. There was no Roman patent law. So this system depends on the judgment that patents should oust the rules of first possession on tangibles, which is a complex social calculation.

When I said that natural law yields to local variation, I did not mean on the basic principles, e.g. first possession for land. It was only on the formalities. And if FTF gave better protection to inventors than FTI, so be it, which is doubtful, after looking at all the evidence.

My own view on the reform is that it rests on a half-baked hubris by folks who don't understand the system they are about to tear down, and who think that the new system will be wart-free when implemented. So, Adam, go get'em, and let's hope that this bill will stop.

All best to everyone.

Richard