Silverman v.2.0 technology and economies - fcba sept. 17, 2013

Economies:
Perceptions of
Intellectual Property
Rights
Federal Circuit Bar Association
International Series
September 17, 2013
Toronto

Robert Silverman
Foley & Lardner
LLP
©2013 Foley & Lardner LLP

Intellectual Property and Economic
Growth
“Inventions, embodied in patents, are a major
driver of long-term regional economic
performance, especially if the patents are of
higher quality. In recent decades, patenting is
associated with higher productivity growth, lower
unemployment rates, and the creation of more
publicly-traded companies.”
Rothwell et al., Patenting Prosperity: Invention and Economic
Performance in the United States and its Metropolitan Areas
(Brookings Inst. 2013).

3

Intellectual Property in the
News: Cynical View of Patent
Office
“[I]n the United States … patents are so
easy to win that one was even given in
1999 for a peanut butter-and-jelly
sandwich.”
- New York Times, April 1, 2013


5

6

The Sacred and the Mundane


Intellectual Property in the
News: Cynical View of Patent
Owners

―A fight has erupted in Congress
over the question of whether drug
makers and other companies
should be allowed to keep patents
they obtained by
misrepresentation or cheating.‖
- New York Times, April 30, 2008.


10

One good turn …
If you want to know just how broken the patent system is, just look at
patent D670,713, filed by Apple and approved this week by the United States
Patent Office.
This design patent, titled, ―Display screen or portion thereof with
animated graphical user interface,‖ gives Apple the exclusive rights to the page
turn in an
e-reader application.
Yes, that’s right. Apple now owns the page turn. You know, as when you
turn a page with your hand. An ―interface‖ that has been around for hundreds of
years in physical form. I swear I’ve seen similar animation in Disney or Warner
Brothers cartoons.

New York Times
(Bits), Nov. 16, 2012

Other Dimensions in the Critique
of IP


Globalization
– Developing nations
– Pharmaceuticals
– Indigenous knowledge
– Counterfeiting



Patent-eligible Subject Matter
– Business Methods
– DNA Products


11

IP Cynicism (and its
Inconsistencies)
Criticisms:
– The idea is old
– The idea is simple (Even I can do it!)
– The idea is unimportant, trivial or silly

But:
– The idea should not be owned exclusively by
anyone (or unfairness will result, e.g.,
exploitation by ―Patent Trolls‖)

12

13

Perspectives on Intellectual
Property




Philosophical and cultural traditions inform
both criticism and reverence for intellectual
property rights.
Multiple approaches to understanding human
creativity and the sources of property rights
have enduring effect on contemporary
discourse.


Prometheus Brings Fire to Mankind, Heinrich Füger (1817)


Prometheus Creating Man in the Presence of Athena, Jean-Simon Berthélemy (1802)

Prometheus Being Chained by Vulcan, Dirck van Baburen (1623)


Prometheus,
Gustave Moreau
(1868)


Man Carrying Lightbulb, Tivadar Boté

The Author as an Instrument of
External Creative Forces
―A poet is holy, and never able to
compose until he has become
inspired, and is beside himself
and reason is no longer in him ...
for not by art does he utter
these, but by power divine.‖
Plato
(427-347 B.C.)


Inventions as “Common Property”;
“Blossoms on the tree of
civilization”

24

―inventions do not belong in the category of intellectual
property, because inventions are emanations of the current
state of civilization and, thus, common property. What the
artist or poet creates is always something quite individual
and cannot simultaneously be created by anyone else in
exact likeness, in the case of inventions, however, this is
easily possible, and experience has taught us that one and
the same invention can be made at the same time by two
different persons — inventions are merely blossoms on
the tree of civilization.‖
- Max Wirth (economist), 1863.

Patents vs. “the debt owed to the
past”
“In granting a patent the government
does more than give its originator an
exclusive right to exploit it. A patent
bestows societal recognition on an
inventor and distorts the extent of the
debt owed to the past by encouraging the
concealment of the network of ties that
lead from earlier, related artifacts.”
George Basalla, The Evolution of Technology (1988).

25

17th – 18th Century
Transformations





Equality
Individual rights
Creativity as an expression of individual
personality


26

27

Landmarks in Governance





1776 – Declaration of Independence
1787 – Constitution of the United
States
1789 – Declaration of the Rights of Man


28

The Author as Creator


―Though the Earth, and all inferior
Creatures be common to all Men, yet
every Man has a Property in his own
Person. This no Body has any Right to
but himself. The Labor of his Body, and
the Work of his Hands, we may say are
properly his. Whatsoever then he
removes out of the State that Nature hath
provided, and left it in, he hath mixed his
Labor with, and joyned to it something that
is his own, and thereby makes it his
Property.‖
John Locke, Two Treatises of
Government (1689).

Patents: From “Privileges” to
“Rights”





Gifts from the
Sovereign to its
subjects
Local novelty
Disclosure
requirements were
marginal and
inconsistent







29

Persons have rights in
their inventions
Worldwide novelty
Disclosure/Notice
(balance individual and
public interests)

30


31


32


“Athenian” Theory of
Creativity?
Authors’ rights to license their writings:
“A Book is the Author’s Property, ’tis
the Child of his Inventions, the Brat of
his Brain.”
Daniel Defoe (1709) (advocating the Statute of Anne,
British copyright law).


33

Property Rights and the “Birth” of
Invention
Language of ―conception‖/―birth‖ as an
intellectual and rhetorical strategy to establish
an inventor’s rights:
“[I]f anything can be called a man’s exclusive property,
it is surely that which owes its birth entirely to
combinations formed in his own mind, and which but
for his ingenuity would not have existed.”

- J.R. McCullough (1826)


34

35

Property Begins at
“Conception”
Inventive conception occurs …
“when the 'embryo' has taken some definite
form in mind and seeks deliverance, and when
this is evidenced by such description or
illustration as to demonstrate its
completeness. It may still need much patience
and mechanical skill, and perhaps a long
series of experiments, to give the conception
birth in a useful, working form.”
Cameron & Everett v. Brick, 1871 C.D. 89, 90 (Comm'r Pat. 1871).

36

Birth of Bell’s Telephone
Bell’s attorney described his combination of
ideas and observations:
“The marriage was fruitful and the telephone
was born. It thenceforth needed only
nurture.”
The Telephone Cases, 126, U.S. 1, 298 (1887).


Prometheus Bound?
U.S. Supreme Court (2012) wrestling with issues of the
limits of what may be rightfully appropriated:
―[The claims] inform a relevant audience about certain
laws of nature; any additional steps consist of well
understood, routine, conventional activity already
engaged in by the scientific community; and those
steps, when viewed as a whole, add nothing significant
beyond the sum of their parts taken separately.‖

Yet:
―[A]ll inventions at some level embody, use, reflect, rest
upon, or apply laws of nature, natural phenomena, or
abstract ideas.‖

38

Beyond Good and Evil IP


―Engaging in absolutist debates that intellectual
property is good or bad … may hinder the proper
recalibration of the patent system. ”

(G. D’Agostino, Challenges to the Patent System, 25 I.P.J. 57)


―Cynicism‖ vs. ―Skepticism‖


Robert Silverman
Foley & Lardner LLP
111 Huntington Avenue
Boston, MA 02199-7610
Office: 617-342-4019
Mobile: 617-953-2845
Reception: 617-342-4000
Facsimile: 617-342-4001
Email: rsilverman@foley.com
Website: www.foley.com

Silverman v.2.0 technology and economies - fcba sept. 17, 2013

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