I was with him until: "The idea behind patents is to create a financial incentive to promote innovation: patents ensure that the inventor of a new idea can get compensated for it, rather than seeing her idea immediately ripped off by copycats."
The purpose of patents had nothing to do with compensation. It was already presumed that an inventor could sell an invention. The real purpose was to promote disclosure of how to make things. In other words to reveal what would otherwise be kept a trade secret. This fits well with the notion of "non-obvious to a person practiced in the art", which would preclude Amazons one-click. The idea was: Tell us how it's made in exchange for a monopoly for some number of years. Spreading knowledge is how you promote innovation.
By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common goods (salt, for example). Consequently, the Court began to limit the circumstances in which they could be granted. After public outcry, James I of England was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. It also voided all existing monopolies and dispensations with [some] exception[s]....
There has also been some historical research that suggests that the "Statute of Monopolies" was a political compromise[1]. There wasn't really a lot of thought about maximizing innovation or incentives, or whatever. However, I fully agree that the popular understanding of the patent system has more to do with incentives for innovation and disclosure. But any engineer will tell you there's far more optimal ways to explain technical devices and inventions than legalese and claims.
On a related note, the USSR had a patent system. With patents. Who would have thought? This stuff is super ingrained.
The US constitution gives the reason explicitly as to "Promote the Progress of science and the useful Arts" though
Yeah, I agree. The entirety is:
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;
That's the whole description in the constitution. At the time (1780s-1790s), other countries had patent systems, including the Empire from which the authors drew inspiration for at least other aspects of the constitution. A patent system wasn't a new idea. For that matter, the 1790 implementation of the patent system also looked very similar to the others of the time. My guess is they were thinking "hey, let's do that too".
No, the constitution is quite clear on this point:
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.
It's clear from the historical record that this was about ensuring monetary compensation for invention, as knock-off devices were just as common then as they are now.
In fact, public access to patents was basically non-existent until the Patent Act of 1836. The "non-obvious" test came even later.
That exact quote disagrees with you and agrees with the parent comment, though.
The purpose is "To promote the Progress of Science and useful Arts". This is achieved by "securing for limited Times..the exclusive Right".
Monopoly and financial compensation are not the aim of constitutional patent law, merely the means to an end.
Knock-off devices were common then as they are now, and in the absence of patent law, the best protection for so-called intellectual property is to just keep it secret. This, of course, has a negative impact on society, as research effort gets duplicated, and the state of the art advances more slowly than it otherwise could.
So, the balance is - share with the world the details of making your invention (i.e., progress the science or useful art), and in exchange, we'll guarantee that your openness doesn't bite you by aiding your competitors (we'll give you a time-limited exclusive right).
They are a means to an end, absolutely. I wasn't try to imply that the constitution recognized Intellectual Property as a kind of property that people have some kind of inherent right to. In fact, I believe the opposite, but realize I may have implied that's what I believe, and that's what these responses are reacting to.
However, it's that end that's being examined here, not the means. My point was that by granting a limited-time monopoly on an invention, Congress can advance the state of "Science and useful Arts". It can be argued what is meant by "promote". As I noted, the historical context makes it pretty clear that it's meant as an incentive to invent, not necessarily public documentation of inventions, which really came later. This is exactly what is said in the article: "The idea behind patents is to create a financial incentive to promote innovation: patents ensure that the inventor of a new idea can get compensated for it, rather than seeing her idea immediately ripped off by copycats".
Regardless, what absolutely is missing from that clause in the constitution is any requirement at all that there be a public disclosure of the invention. That's what I was saying the constitution was clear on. Any assertion of public disclosure being the purpose is an interpolation, because the constitution has absolutely no requirement that that take place. All patents could be secretly filed away, for all it cares.
It doesn't particularly matter what the US constitution says on the matter anyway as patents were up and going long before it was written.
The US constitution does not contain the idea behind patents, it contains a view of how people wanted to encapsulate existing ideas into a legal document for a new nation.
patents were up and going long before it was written.. the US constitution does not contain the idea behind patents.
Yeah, I find it very interesting how the US constitution is often assumed the origin of patents, but the same people wouldn't assume it's the origin of other legal concepts, like a judicial system.
No one assumed that, but it is a good distillation of what our legal system bases its notion of patents on. Common law is often used as the basis for precedent in the US, but usually not in cases when the constitution gives explicit goals and the means to achieve those goals, as it did with patents and copyright.
I think the sentence is pretty clear. It's using a limited-time monopoly in order to promote the progress of science and the useful arts. There is nothing here about promoting "disclosure of how to make things". That notion doesn't even make sense when it comes to "authors".
What historical evidence is there that the "real purpose was to promote disclosure of how to make things"?
Comments
I was with him until: "The idea behind patents is to create a financial incentive to promote innovation: patents ensure that the inventor of a new idea can get compensated for it, rather than seeing her idea immediately ripped off by copycats."
The purpose of patents had nothing to do with compensation. It was already presumed that an inventor could sell an invention. The real purpose was to promote disclosure of how to make things. In other words to reveal what would otherwise be kept a trade secret. This fits well with the notion of "non-obvious to a person practiced in the art", which would preclude Amazons one-click. The idea was: Tell us how it's made in exchange for a monopoly for some number of years. Spreading knowledge is how you promote innovation.
> The real purpose was to promote disclosure of how to make things.
http://en.wikipedia.org/wiki/History_of_patent_law
By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common goods (salt, for example). Consequently, the Court began to limit the circumstances in which they could be granted. After public outcry, James I of England was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. It also voided all existing monopolies and dispensations with [some] exception[s]....
There has also been some historical research that suggests that the "Statute of Monopolies" was a political compromise[1]. There wasn't really a lot of thought about maximizing innovation or incentives, or whatever. However, I fully agree that the popular understanding of the patent system has more to do with incentives for innovation and disclosure. But any engineer will tell you there's far more optimal ways to explain technical devices and inventions than legalese and claims.
On a related note, the USSR had a patent system. With patents. Who would have thought? This stuff is super ingrained.
[1] http://diyhpl.us/~bryan/papers2/Generally%20inconvenient:%20...
The US constitution gives the reason explicitly as to "Promote the Progress of science and the useful Arts" though
Yeah, I agree. The entirety is:
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;
That's the whole description in the constitution. At the time (1780s-1790s), other countries had patent systems, including the Empire from which the authors drew inspiration for at least other aspects of the constitution. A patent system wasn't a new idea. For that matter, the 1790 implementation of the patent system also looked very similar to the others of the time. My guess is they were thinking "hey, let's do that too".
No, the constitution is quite clear on this point:
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.
It's clear from the historical record that this was about ensuring monetary compensation for invention, as knock-off devices were just as common then as they are now.
In fact, public access to patents was basically non-existent until the Patent Act of 1836. The "non-obvious" test came even later.
That exact quote disagrees with you and agrees with the parent comment, though.
The purpose is "To promote the Progress of Science and useful Arts". This is achieved by "securing for limited Times..the exclusive Right".
Monopoly and financial compensation are not the aim of constitutional patent law, merely the means to an end.
Knock-off devices were common then as they are now, and in the absence of patent law, the best protection for so-called intellectual property is to just keep it secret. This, of course, has a negative impact on society, as research effort gets duplicated, and the state of the art advances more slowly than it otherwise could.
So, the balance is - share with the world the details of making your invention (i.e., progress the science or useful art), and in exchange, we'll guarantee that your openness doesn't bite you by aiding your competitors (we'll give you a time-limited exclusive right).
They are a means to an end, absolutely. I wasn't try to imply that the constitution recognized Intellectual Property as a kind of property that people have some kind of inherent right to. In fact, I believe the opposite, but realize I may have implied that's what I believe, and that's what these responses are reacting to.
However, it's that end that's being examined here, not the means. My point was that by granting a limited-time monopoly on an invention, Congress can advance the state of "Science and useful Arts". It can be argued what is meant by "promote". As I noted, the historical context makes it pretty clear that it's meant as an incentive to invent, not necessarily public documentation of inventions, which really came later. This is exactly what is said in the article: "The idea behind patents is to create a financial incentive to promote innovation: patents ensure that the inventor of a new idea can get compensated for it, rather than seeing her idea immediately ripped off by copycats".
Regardless, what absolutely is missing from that clause in the constitution is any requirement at all that there be a public disclosure of the invention. That's what I was saying the constitution was clear on. Any assertion of public disclosure being the purpose is an interpolation, because the constitution has absolutely no requirement that that take place. All patents could be secretly filed away, for all it cares.
It doesn't particularly matter what the US constitution says on the matter anyway as patents were up and going long before it was written.
The US constitution does not contain the idea behind patents, it contains a view of how people wanted to encapsulate existing ideas into a legal document for a new nation.
Yeah, I find it very interesting how the US constitution is often assumed the origin of patents, but the same people wouldn't assume it's the origin of other legal concepts, like a judicial system.
No one assumed that, but it is a good distillation of what our legal system bases its notion of patents on. Common law is often used as the basis for precedent in the US, but usually not in cases when the constitution gives explicit goals and the means to achieve those goals, as it did with patents and copyright.
Did you just decide to blatantly ignore the first 6 words of your quote?
I think the sentence is pretty clear. It's using a limited-time monopoly in order to promote the progress of science and the useful arts. There is nothing here about promoting "disclosure of how to make things". That notion doesn't even make sense when it comes to "authors".
What historical evidence is there that the "real purpose was to promote disclosure of how to make things"?
What exactly is the state of the Sciences and Useful Arts, except the accumulated knowledge of how things work, and how things are made?
"Progress" is also new inventions. There is no requirement for public disclosure anywhere in that clause. As I said, that came later.