🚀 go-pugleaf

On 22 Aug 91 21:17:53 GMT, jbuck@forney.berkeley.edu (Joe Buck) said:

jbuck> In article <PCG.91Aug22184726@aberdb.aber.ac.uk>, pcg@aber.ac.uk
jbuck> (Piercarlo Grandi) writes:

pcg> Precisely. That's not a problem, at least not a legal problem;
pcg> legally the US Constitution only requires that inventions be
pcg> rewarded by granting exclusive economic rights to the invention.

jbuck> Since you live in the UK, you may be excused for this; the US
jbuck> Consititution makes no such requirement.  For the third time,
jbuck> here is the relevant passage, from Article I, section 8:

jbuck> The Congress shall have Power ...  To promote the Progress of
jbuck> Science and useful Arts, by securing for limited Times to Authors
jbuck> and Inventors the exclusive Right to their respective Writings
jbuck> and Discoveries;

I know, I know. But read carefully what I wrote: that the reward (I did
omit *if any* because I reckon that completely abolishing any reward is
not politically acceptable) is required to be exclusive rights. The
requirement is on the exclusivity, not on the reward. If Congress deems
that giving inventors and authors rights to writings and discoveries
promotes progress, such rights are required to be exclusive.

The requirement that inventors be rewarded (if at all) with *exclusive*
rights has normally been interpreted as exclusive rights to *use* the
invention, which is what can create problems and restrain progress.

This would seem to kill any chance of having freely sharable patents.

To avoid this, my proposal is based on a subtle point: that even if it
is required that the scope of such rights (if any) be *exclusive*, the
nature of the rights is not specified; thus Congress can grant exclusive
_economic_ rights, for example.

  Note however that even this, strictly speaking, is not required; for
  example Congress may choose to reward authors and inventors with
  exclusive _moral_ rights, e.g. the right to have the inventor or
  author's name appear on every copy of their work, if this is deemed to
  promote progress. Note also that the rights that authors and inventors
  enjoy under the present system are not *property* rights. They are the
  right to use and the right to copy, not the right to possess and exclude
  others from possession, which define traditional property rights. Thus
  the (oxymoron) "intellectual property rights".

But let's restrict ourselves to the granting of transferable (even if
this is not required) exclusive *economic* rights, just to make things
more interesting. Now an economic right need not be the right to use,
but, for example, it can be the right to derive income.

So the constitutional requirement of exclusivity can be satisfied, for
example, by granting the inventor the exclusive right to derive a
royalty from the application of the invention or the copying of a
writing, not the exclusive right to use the invention or to copy the
writing.

I submit that the latter hinders progress, by giving inventors an
incentive to become monopolistic manufacturers, while the former favours
progress, as it discourages vertical integration, and the history of the
industrial age has been that specialization and competition are
efficient and should be encouraged.

Giving the right to esclusively manufacture seems more appropriate where
the inventor is a craftsman, which is probably what the authors of the
constitution has in mind, than for the highly specialized competitive
style of enterprise needed today.
--
Piercarlo Grandi                   | ARPA: pcg%uk.ac.aber@nsfnet-relay.ac.uk
Dept of CS, UCW Aberystwyth        | UUCP: ...!mcsun!ukc!aber-cs!pcg
Penglais, Aberystwyth SY23 3BZ, UK | INET: pcg@aber.ac.uk