Exchange on Patent Reform: Richard Epstein
by Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
Posted July 08, 2011, 2:55 PM
Dear All:
I was not on the original recipient list for this letter, but it was forwarded to me by Adam Mossoff. I think that the letter is both erudite and wrongly conceived. I have at this point no brief for FTF versus first-to-invent, but think that there is no constitutional substance. The IP clause says that the purpose is to find ways through a public registry to "secure" property rights. The argument here is that FTF could do this better than FTI, and if that is the case, it is just a means toward and end, and not an end in itself. The parallel to ordinary property is as follows. The usual rule on title is that prior in time is higher in right, which means that the first possessor prevails over all others. But there is nothing in that rule which prevents the formation of a FTF rule for new mining claims and the like in an effort to simplify the confusion about the sequence of claims that are often difficult to deal with otherwise in mining claims, when it is often hard to tell who has started to work on a seam first. The complexity in these areas is quite great, but unless and until there is an effort to defend interlopers, the IP clause has nothing to say about all this. I attach an article by Michael Martin which shows how close we came to adopting FTF when Jefferson was on the patent commission. (Click here to read Michael Martin's article.)
Needless to say there are strong reasons to oppose FTF on policy grounds, which I won't go into here. And the rest of the bill is a long-term horror story.
Please think about the source of the opposition to the legislation.
Richard