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An unwitting dupe, duped again?

By Lawrence B. Ebert, Esq.

A post on "experience not logic" is titled: A Dupe of the Opposition to U.S. Patent Reform? Me? and notes:

IP law is tasked with finding a balance between the free use of ideas to further innovation, and rewarding and restricting the use of new ideas to encourage innovators.

Although many people say such things, IPBiz does not think this statement is correct.

First, there is the confusion about innovation. IP law is about invention, not about innovation. Patent law is a trade between inventors and society. Society gets information. Inventors get a right to exclude which allows them to enter the free market. The free market fosters innovation. As IPBiz noted in 2005: Many people try to suggest that the patent system is to reward people who create a commercialized product. It isn't. The purpose of the patent system is to promote disclosure of inventions. Period.

Second, IP law is about inventions, not ideas, and the two are not the same. An issued patent gives the inventor the right to stop others from making, using, or selling that which is protected by the claims of his patent, which embody his invention.

IP Law is about giving rights to exclude for a limited time to inventors who disclose to the public inventions which meet the requirements of patent law, including utility, novelty, and nonobviousness. It's a trade of a legal right for a particular kind of information. That's it.

The "experience" blog also notes: Whatever the answer, I don't see the current bill turning the U.S. into the perceived Caribbean that is China. The actual mechanism for "piracy" within the "second window of opposition" in S.1145 is in the form of a wearing down of smaller patentees. It's a death by a 1,000 cuts rather than a swift blow from a cutlass.

On the subject of duping, Will Lewis might read:

Getting the Patent Reform Wars on Track on the topic of patent reform as a game of three
card monte.

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As a footnote, while people as Kinsella consider the distinction between invention and innovation to be "subtle linguistic nuances", one can't really understand IP Law without knowing the difference between the two concepts.

Note a comment on Patently-O:

It would seem that "invention" and "innovation" have been and continue to be used interchangeably. Patent law deals with invention and disclosure. Innovation deals with changing the way people (consumers/businesses) act. The two are different, and I think we are all wise to use the two terms carefully. I can't claim credit for this - Lawrence Ebert wrote a good piece (in general, not specific to genes) on patent reform in the December 2006 issue of the Journal of the Patent and Trademark Office Society that got me thinking about this. Vol. 88, No. 12 p.1068. He also has some interesting calculations for those interested in the allowance rate post. Check it out . . . sorry if someone else posted something on it that I didn't catch.

Full post as published by IPBiz on February 01, 2008 (boomark / email).