The Categorical Imperative for Innovation and Patenting

The political theories of John Locke, Jean-Jacques Rousseau, Montesquieu and others greatly influenced our Founders in the creation of our nation, as well as our patent system. In particular, Locke’s political philosophy included the maxim that a person’s property or fruit of their labors should be protected by their government. James Madison, the father of the Constitution, and others inculcated this viewpoint of a patent system into the fabric of our nascent nation. Indeed, the only “Right” mentioned within the text of the Constitution is the right to secure protections under patent and copyright. The other Rights, i.e., Freedom of Religion, Security in One’s Home from Unreasonable Searches and Seizures, etc., are set forth in the attached Bill of Rights.

Despite the clear language of the Constitution, the Federalist Papers and other writings that the Lockean “natural rights” view governs, some academics try to decry this approach, and turn to other philosophies, such as John Stuart Mills’ Utilitarianism, to either bolster or undermine the usefulness of a patent system, usually undermine. Born thirty years after the creation of the United States (and nearly twenty years after the Constitution), Mill wrote extensively on individual liberty, freedom, logic and other issues, and is chiefly known for his principle of utilitarianism, the greatest good for the greatest number. His maxims are many, including “Originality is the one thing that unoriginal minds cannot feel the use of.”

But there was another philosopher, contemporaneous with the Founders, that bears notice, Immanuel Kant, who had a different take on moral and political philosophy, including the Categorical Imperative. Kant spent his life trying to distill the issues of morality into a logical framework. Just as the natural scientists of the Enlightenment were forming logical arguments concerning the physical world, e.g., physics, natural science and other disciplines, Kant tried to do the same with human morality: systematize it.

In his Categorical Imperative, Kant simplifies a moral argument position for an individual by asking a question: if you thought that your position or Statement would be Universal, i.e., applicable to all people, it would have the stance of a Categorical Imperative and thus you must do it. For example, a Statement that I should try to save a person that is drowning can be considered a Categorical Imperative since this would be a betterment of humanity.

However, the proposition or Statement that it should be ok for me to steal another’s car is not a betterment at all. Applying this as a universal law would lead to societal chaos and possible collapse since thievery would reign, and anarchy would result. Since the entire purpose of government is the protection of people (and their possessions), this Statement fails, and you are NOT compelled to act in that manner. This Statement does not rise to the level of a categorical Imperative.

Intellectual property has been attacked of late on various grounds, including being less than property, and thus not entitled to the protections of the Constitution, despite the evidence to the contrary. This attitude is most recently, and most troublingly, exemplified by the U.S. Supreme Court in Oil States, where the Court equated patent rights to taxicab medallion rights. Freeriding is also being touted, subverting copyright law. Information must be free is the mantra.

As we shall see, applying Kantian logic entails first acknowledging some basic principles; that the people have a right to express themselves, that that expression (the fruits of their labor) has value and is theirs (unless consent is given otherwise), and that government is obligated to protect people and their property. Thus, an inventor or creator has a right in their own creation, which cannot be taken from them without their consent.

So, employing this canon, a proposed Categorical Imperative (CI) is the following Statement: creators should be protected against the unlawful taking of their creation by others. Applying this Statement to everyone, i.e., does the Statement hold water if everyone does this, leads to a yes determination. Whether a child, a book or a prototype, creations of all sorts should be protected, and this CI stands. This result also dovetails with the purpose of government: to protect the people and their possessions by providing laws to that effect, whether for the protection of tangible or intangible things.

However, a contrary proposal can be postulated: everyone should be able to use the creations of another without charge. Can this Statement rise to the level of a CI? This proposal, upon analysis would also lead to chaos. Hollywood, for example, unable to protect their films, television shows or any content, would either be out of business or have robust encryption and other trade secret protections, which would seriously undermine content distribution and consumer enjoyment. Likewise, inventors, unable to license or sell their innovations or make any money to cover R&D, would not bother to invent or also resort to strong trade secret. Why even create? This approach thus undermines and greatly hinders the distribution of ideas in a free society, which is contrary to the paradigm of the U.S. patent and copyright systems, which promotes dissemination. By allowing freeriding, innovation and creativity would be thwarted (or at least not encouraged) and trade secret protection would become the mainstay for society with the heightened distrust.

Also, allowing the free taking of ideas, content and valuable data, i.e., the fruits of individual intellectual endeavor, would disrupt capitalism in a radical way. The resulting more secretive approach in support of the above free-riding Statement would be akin to a Communist environment where the State owned everything and the citizen owned nothing, i.e., the people “consented” to this.

It is, accordingly, manifestly clear that no reasonable and supportable Categorical Imperative can be made for the unwarranted theft of property, whether tangible or intangible, apart from legitimate exigencies.

On the positive front, there is a Categorical Imperative that creators should be encouraged to create, which is imminently reasonable and supportable. Likewise, the statement set forth in the Constitution that Congress should pass laws “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” is supportive, as a Categorical Imperative, for the many reasons elucidated two centuries ago by Madison and others, and endorsed by George Washington, Thomas Jefferson, and later by Abraham Lincoln. A Categorical Imperative, universality, however, may be a stretch outside of the United States since other cultures may not treasure the progress of science and the useful arts and freedoms that we Americans do. Nonetheless, it is certainly a supportable proposition in the United States, and even a Categorical Imperative that we must do it!

Turning to issues facing us today, despite the categorical imperative nature of an intellectual property system, some powerful naysayers object to intellectual property per se, but on more fundamental grounds, pecuniary. A large amount of the condemnation of the intellectual property laws over the last decades has been from the big tech companies that would like to use new innovations for their own profit at the expense of the individual inventor. Ignoring the small entrepreneur or inventor is even de rigueur, i.e., most tech companies now have a “sue me” approach to patent infringement, which means openly taking patented technology knowing that a patentee is not likely to have the means to bring a costly litigation. To further undermine small inventors, the big tech companies, at the behest of Congress, instigated onerous administrative proceedings at the Patent Office, where the odds were stacked against patentees, proceedings often called “death squads” due to the very high percentage of patent invalidations.

Indeed, these patent-hostile, monopolistic companies lavishly fund lobbyists to further influence Congress on their behalf to diminish patents, thereby undermining the patent system and the value of patents, and increasing their profit margins with the freeriding. With all of the denunciation of the Chinese for freeloading our IP, we should perhaps look within first to make America great again. To add insult to grave injury these same companies have also supported numerous Supreme Court challenges to further undermine the patent and copyright systems. The recent appointment of Andrei Iancu as the new Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trdemark Office is a harbinger of a possible turning point toward a more positive patent system.

As a result of all of the big tech efforts to destabilize the patent system, the engine of innovation has suffered. To further harm the patent system, the press labels all inventors de facto trolls and thus unworthy. This demonization of inventors by the press has been profound. Gone are the days of an inventor being celebrated for building a better mouse trap or developing a nifty app. Now, even the Wright Brothers and Edison have been brought low, equated to trolls and not respected American innovators.

Immanuel Kant’s dream of systematizing morality is, of course, imprecise, but the meaning is quite clear and analogous to another famous maxim: do unto others as they would do unto you. Kant’s Categorical Imperative and the Bible extort us to be better people and form a better society. If, however, you feel that innovation is trivial and content should be free, then a Categorical Imperative for freeriding may be sane for you, but it fails at the societal level, i.e., universal application would undercut society. It is also wrong to steal. In the balance, society wants new ideas, new stories, new ways of doing things, and newness itself. All of this takes effort and expense, along with ingenuity and creativity, which should be strongly encouraged and not punished.

A Kantian Categorical Imperative to encourage, support and defend the creations protected by intellectual property is manifest. We should not be swayed by the arguments of corporate monoliths desirous of their own wellbeing and not society’s. In connection with his categorical imperative, Kant also believed that we should all “always recognize that human individuals are ends, and do not use them as a means to your end.” In other words, we should value and respect each human being and their contribution to the world. By deliberately or wantonly stealing patented technology from individual inventors, big tech companies treat them as a means to the corporate end, diminishing and dehumanizing the inventor.

Our Founders well knew that human beings create, and that the stuff of that creation has value. The patent and copyright clause, embodied within the Constitution itself, recognizes this need to encourage, facilitate and support the creativity embodied in us all.

 

 

Article also published today on IpWatchdog.com website

Quantum Mechanics and the U.S Patent System: Two Uncertainties

From Ancient thinkers to Isaac Newton to today, our classical understanding of the world around us includes various laws that objects in our Universe obey, such as Newton’s Law of Gravity. These physical laws were updated a century ago by Albert Einstein to include situations not adequately described by Newtonian Mechanics, e.g., travelling near the speed of light, resulting in the modern view of Space-Time.

Around the time of Einstein’s discoveries, however, experiments in subatomic physics presented considerable challenges to these classical views. The disparity of these observations with the “real” world ultimately resulted in an agreement among physicists on the interpretation of reality itself, the Copenhagen Interpretation, which was necessary to establish a common platform for physics and mathematics. Quantum Mechanics developed as a statistical model in this alternate reality, where laws were replaced by rather uncertain estimations.

Our patent system was also been built upon classical rules and understandings, e.g., earlier patent systems, and the thoughts of Rousseau, Locke and others who influenced our Founders in the creation of our patent system. For over 200 years our patent system has been operating within the paradigm or mindset that innovation should be encouraged by providing a personal incentive to benefit the innovator (in the short term) and Society as a whole (over the long term).

This reality, however, is now under question, i.e., the George Washington Interpretation that a patent system is good for the nation. As with Quantum Mechanics in physics, a new reality has been thrust upon us that the patent system is actually questionable, uncertain or even bad. This new view is the Troll Interpretation. Instead of American inventors creating a better mouse trap, bettering Society, they are now trolls, every one of them it seems. This new interpretation is a long way from the veneration accorded inventors, including great American innovators, such as Morse, Bell, Edison and others. Indeed, the press goes into overdrive denigrating famous inventors, such as the Wright Brothers, as trolls.

The U.S. Supreme Court, which for two centuries acknowledged the importance of patent rights, has also brought the George Washington Interpretation into doubt by undermining the entirety of the patent system in the recent Oil States case, where patents of innovations are now deemed mere tools of the government, and not the innovator’s private personal property. But this is just the latest in numerous decisions over the past decade or so where the Supreme Court has curtailed and belittled patent rights. All of their many negatively-postured opinions have denigrated the value of patents and investment in innovations relying upon patent rights. Indeed, the Supreme Court has directly created considerable uncertainty in a once fairly certain world of patent valuation.

In physics, there is an interesting experiment involving light passing through two narrow slits. Under classical physics, light, as a particle, should pass through and hit a detector on the other side in two places corresponding to the placement of the slits. But this is not the case. Instead, there is a continuum of values detected corresponding to light wave interference, i.e., the light, as a wave, actually goes through both slits and interacts with itself on the other side. One cannot predict with certainty where any given light ray will hit the detector. All one can do in this uncertain environment is to employ statistical techniques to guess.

Right now, the Supreme Court jurisprudence on many important patent issues is just as uncertain, creating further havoc with the George Washington Interpretation. Indeed, it is hard to decipher meaning from the diverse opinions of the Court as to how to proceed. Each new decision further disrupts the patent paradigm in unknown and uncertain ways, but overwhelmingly negative. The Court does not seem to understand the criticality of the issue and the crises so generated.

Modern innovation relies on funding, and one must demonstrate that one can deliver on a promise, e.g., investment requires some certainty to the investor or banker. In the past, the key assets were physical in nature, e.g., a factory lease and the latest printing press for a startup printing business – known values. Now, the assets are far less tangible, e.g., an app or a therapeutic kit, but far more valuable, and very much in need of patent protection. Yet, apart from Justices Gorsuch and Roberts, the Supreme Court appears unable to accord patents the proper status in this equation, creating further uncertainty in the marketplace, preventing many businesses from forming and thwarting innovation itself.

Also, if a valuable invention covered by a patent can be invalidated with ease, e.g., in one of the new and slanted-against-the-inventor USPTO proceedings, why invest in R&D that cannot be protected? This scenario affects critical technologies, such as new techniques and therapeutics to detect diseases. For example, the Cleveland Clinic has recently curtailed critical research in view of the lack of ways to protect these techniques with patents. Indeed, abuse of Section 101 of the Patent Act has reached a precarious level. The investment calculus is simple: if too uncertain a patent can be obtained, and if obtained, too uncertain regarding enforcement, then no funding. This fundamental principle of economics is apparently lost on the Justices.

In Congress, under intense lobbying, they passed the America Invents Act (AIA) in 2011 to increase the “certainty” in the patent system. Despite the warnings beforehand that this was not so, this lobbyist- and troll-inspired law has morphed into a miasma of confusions and uncertainties. Now, Congress is having hearings to establish what they did wrong, and asking fundamental questions. Why has our patent system, once number one in numerous rankings, fallen to 12th place? Why are foreign patent systems more conducive to critical innovations in software, AI, diagnostics and therapeutics, and our Patent Office and the courts deny these innovations the right to be patented? Why is trade secret protection, in lieu of patenting, become so huge? Why are we indulging in this national self-destruction?

The new USPTO Director Andrei Iancu is trying to fix this horrible situation, where we have skewed so far from the George Washington Interpretation into extreme uncertainty that threatens the nation. He wants to change the dialogue and stress the positives of patenting, the positive portrayal of our famous inventors, and turn back many of the bad measures of the AIA. With the Supreme Court Justices rejecting the Founders’ view of patents, Congress will have to now step up and bolster our patent system. Senator Coons and others in Congress recognize America’s innovation slide, the proper role of patents, the bad press regarding patents, and the need to create certainty in business dealings. As our economy heats up further, patents will be even more critical to secure the fruits of American ingenuity in a complicated and intense world market.

George Washington, Thomas Jefferson and many others, including Abraham Lincoln, recognized the extraordinary value of the U.S. patent system, and talked and wrote about its virtues. A few bad actors should not have derailed this critical engine of our economy, but they did, and now all patentees are labelled trolls. Thus, a new portrayal of patents is needed. It will take time to educate the press, reintroduce the positive advantages of the patent system, and stop the slide. We must, however, watch out for the truly bad actors here, some of the big tech lobbyists who still want to curtail patents (to curtail competition), which keeps the patent system under threat.

The uncertainties in physics should not be mirrored in our patent system. The reality of the Founders is not alien to us: hard work, and reward creativity and innovativeness. Modern inventors of new advances should not be harmed due to the perverted view of the patent system being foisted upon us. We need to reaffirm the George Washington Interpretation. Director Iancu has his work cut out for him: Make American Invention and Inventors Great Again!

Speech on Intellectual Property for 2018 at the Annual Meeting of the Bar Association of Montgomery, County Maryland

Tomorrow I reprise my update on IP law at the Bar Association of Montgomery County, Maryland, which is the county adjacent Washington, DC. Lots to report, The Oil States patent case has introduced even more confusion into U.S. patent law. But the appointment and confirmation of the new Director of the USPTO, Andrei Iancu, offers some rays of hope. I also address recent events in copyright, trademark and trade secret. For those in the area, I hope that you can attend.

Here is the program: http://c.ymcdn.com/sites/www.barmont.org/resource/resmgr/temporary_newsletter_files/2018_annual_meeting_web_file.pdf

I am Chair of the IP Section. If you have any questions about IP or require assistance (I have both domestic and international clientele) please contact me.

http://www.rayvandyke.com vandyke@acm.org
My website is being updated so please excuse its primitiveness;)
Ray

Copyright and the Game of Thrones

The enormous popularity of HBO’s Game of Thrones has driven many into a frenzy.  Just as the Night King appropriated Daenerys Targaryen’s dead dragon for his own uses, many viewers think that GoT episodes should be freely available for their own uses.   The extraordinary value placed on these episodes resulted in hackers cracking into various protected systems to download them and even hold HBO for ransom.  Although the GoT mania has died down with the end of the short Seventh season, the mania nonetheless continues somewhat as we enter the doldrums until 2018 and the final season.

The incredible efforts to get the episodes are in spite of the large penalties in play.  The basic damages for copyright infringement (unauthorized copying) are between $750 to $30,000 per work.  In other words, if you hack into a system and then post a file for others, the damages could be immense, e.g., for 1,000 downloads multiple the above numbers by 1,000 to get a sense of the damage scale possible.  If a judge deems the copying willful, i.e., done on purpose and not accidental, the damages can be increased to $150,000 per work.  There is also the possibility that you will have to pay the content owner’s legal fees, and the owner may be able to seize and destroy whatever copies you have, as well as enjoin or stop you from future such copying.

In addition to the civil liability, infringers, whether small-time or mass infringers, may also be committing a felony or a misdemeanor.  A felony charge must involve an infringement of the copyright owner’s reproduction or distribution rights, two of the various copyright rights.  Further, a felony conviction carries a maximum sentence of five years in prison and a maximum fine of $250,000.  Even though there has been some leniency in the past for  individual pirating, there is still a  risk that you will be made an example.  The legal fees alone  for defending such suits are large, and, as indicated, you may be paying both sets of attorneys.

In relation to the GoT copyright craziness, here is a Consumer Reports article that cites me on the penalties.  https://www.consumerreports.org/televisions/the-risk-of-watching-pirated-game-of-thrones-episodes/  I recommend reading their other articles.

If you are accused of copyright infringement, consult an attorney to assess your situation.  If you are small fry, you may not be worth the legal effort.  However, if you go after very valuable content, such as GoT, and/or indulge in massive file sharing, you are more of a target and  the liability can be staggering.  As a computer scientist, I understand the thrill of hacking.  However, as an IP attorney helping people, whether innocent or guilty, out of the problems due to their pirating activities, all I can say is that some content owners are meaner than Cersei Lannister in protecting what is theirs.

 

 

Celebrate World IP Day! April 26th

Every April 26th is World Intellectual Property Day (WIPD).  This commemorative day was created many years ago by the World IP Organization in Geneva.  As the Chair of the Washington, DC Chapter for the Licensing Executives Society (LES), I have been championing this day for many years at the Chapter.  The intellectual properties, i.e., patent, copyrights, trademarks and trade secrets, are critically important in today’s economy, and I, as an intellectual property attorney, champion my clients in the protection of their various intellectual properties.

The celebration for this year, April 26, 2017, involves the use of Innovation for Improving Lives.

The United States Patent & Trademark Office (USPTO) has graciously invited me to give a talk on this topic, technologies through history that improve lives and also the history of intellectual property.  My part of the program will begin at noon in the Madison Auditorium at the USPTO in Alexandria, Virginia.  I have today confirmed that the event is free and open to the public.

Earlier at 11 AM, however, a number of important people will be presenting, including the Chief Policy Officer of the USPTO, Shira Perlmutter, who will kick off the event. John Sandage, World Intellectual Property Organization (WIPO) Deputy Director General, Patent and Technology Sector, and Joseph Ferretti, Vice President and Chief Counsel, Global Trademarks at PepsiCo, Inc. and President of the International Trademark Association (INTA), will give opening remarks.

Beginning at about 11:15 a.m., two keynote speakers will address this year’s WIPD theme of Innovation: Improving Lives by showcasing technologies brought forward by their respective companies. Jeanine Hayes, Chief IP Officer of Nike, Inc., will present FlyEase technology. Mario Bollini, Co-founder and Chief Technology Officer, Global Research Innovation and Technology, Inc. (GRIT), will demonstrate the all-terrain Freedom Chair for the disabled.

For those in the area, I welcome you to attend.  As noted, the event is open to the public, but is also focused on the Examiner Corps training.  Nonetheless, the speakers and I will be entertaining to all!  Please feel free to email me at vandyke@acm.org if you have any questions.

Ray

Copyrights for the Creative Community

For those in the Washington, DC area, I am speaking on the basics of Copyright for authors, videographers, and other artists for the Montgomery County Media group at  Montgomery County Television in Rockville, MD tomorrow, September 13, 2016 starting at 6:30 PM.  The address and to MCM are below:

Montgomery Community Television, Inc.
7548 Standish Place
Rockville, MD 20855

My wife and I have had the privilege of learning studio techniques, producing video, and other studio skills at MCM.  I hope that you can make this talk.

Ray Van Dyke Presentation to the Montgomery County Media organization description:

This lively presentation will cover the basics of copyright law and current issues showing the ongoing transformation of copyright.  Since creativity and copyright go hand-in-hand, this presentation will be both relevant and informative.

Ray Van Dyke is an intellectual property (IP) practitioner in Montgomery County and DC, handling patent, trademark, copyright and other legal matters for his clientele.  He is Co-Chair of the IP Section of the Montgomery County Bar Association, and active in many other IP and technical societies.  He also teaches IP law issues at several institutions, particularly Southern Methodist University, where he is an Adjunct Professor.

Please send me an email to let me know you are coming to the event.  vandyke@acm.org

Ray

The weblink to MCM: http://www.mymcmedia.org/