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

©2013 Foley & Lardner LLP

Technology & Economies: Perceptions of Intellectual Property Rights

Robert SilvermanFoley & Lardner LLP

Federal Circuit Bar Association International SeriesSeptember 17, 2013Toronto


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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).

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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

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The Sacred and the Mundane

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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.




One good turn …

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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

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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”)

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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.

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©2013 Foley & Lardner LLPPrometheus Brings Fire to Mankind, Heinrich Füger (1817)

©2013 Foley & Lardner LLPPrometheus Creating Man in the Presence of Athena, Jean-Simon Berthélemy (1802)

©2013 Foley & Lardner LLPPrometheus Being Chained by Vulcan, Dirck van Baburen (1623)


Prometheus, Gustave Moreau (1868)



©2013 Foley & Lardner LLP 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”

“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.

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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).

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17th – 18th Century Transformations

Equality Individual rights Creativity as an expression of

individual personality

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Landmarks in Governance

1776 – Declaration of Independence

1787 – Constitution of the United States

1789 – Declaration of the Rights of Man

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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).

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Patents: From “Privileges” to “Rights”

Gifts from the Sovereign to its subjects

Local novelty Disclosure

requirements were marginal and inconsistent

Persons have rights in their inventions

Worldwide novelty Disclosure/Notice

(balance individual and public interests)

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The U.S. Constitution Refers to Only One “Right” (not including amendments)

The Congress shall have the Power ...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. (U.S. Const., Art. I, §8, cl. 8).


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French Patent Law (1791)

“[E]very novel idea whose realization or development can become useful to society belongs primarily to him who conceived it, and that it would be a violation of the rights of man in their very essence if an industrial invention were not regarded as the property of its creator.”


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1791: First Patent Granted by the Legislature of

Lower Canada


“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).

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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)

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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).

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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).

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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.”


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”

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Robert SilvermanFoley & Lardner LLP

111 Huntington AvenueBoston, MA 02199-7610

Office: 617-342-4019Mobile: 617-953-2845

Reception: 617-342-4000Facsimile: 617-342-4001

Email: [email protected]: www.foley.com

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

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