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The Morality of Acquiring and Enforcing Patents

As one of the few registered patent attorneys who oppose patents –and on principled, pro-private property, grounds, not for utilitarian or anti-industrialist reasons (in fact, the only other anti-patent registered patent attorney I know of is law professor Michael Davis,1 who, if memory serves, is a leftist) — I get my share of the “hypocrisy” charge. How can I help companies acquire patents, if I know the patent system is unlibertarian. Is it “immoral” or unlibertarian to patent your invention?A few comments. First, even if I’m hypocritical, it does not mean my argument against IP is wrong. It’s ad hominem.

Second, consider how patents are used. First, one invents something. Then, a patent application describing the invention is prepared and filed with the US Patent Office. Then, two to three years later, the patent office might issue a patent to the inventor. Once he has a patent, it gives the inventor the right to prevent others from making, using, or selling whatever invention is claimed–by filing a lawsuit to stop this, if necessary.

Often, a company–say, a small laser company–will obtain a bunch of patents in this manner. What for? Well, quite often, they sit in the company’s vault. If the company gets sued by a competitor for infringing one of the competitor’s patents, the laser company sifts thru its stack of patents, and if it finds one or two that its competitor might be violating, it countersues. If both the claim and counterclaim have merit, the plaintiff might back down; maybe they’ll settle by cross-licensing to each other. Even if it is immoral to sue someone with your patent, it is not immoral to use patent defensively.

Consider guns–they can be be used both defensively and offensively. Because they have both a legitimate, and illicit, use, it is not per se a threat to own–to have– a gun. Its the same with patents. Merely having a patent is like having a gun: you can use it for a legitimate (e.g., defensive) purpose, or against an innocent defendant.

So is it immoral, or hypocritical, to be a patent attorney, if it is true that the patent system is unlibertarian? It is not immoral to give clients advice about the actual system they exist in. It is not immoral to obtain patents. It is not immoral to give opinions on the whether your client’s products infringe a given patent. It is not immoral to negotiate a license agreement giving your client permission to make its products without being sued for patent infringement.

But what about actually suing another company, without provocation, for infringing one of your client’s patents? It may well be immoral, from the libertarian point of view, to aid and abet a company in suing another company for patent infringement — although I would argue that in most cases, the defendant company’s management and shareholders by and large support the existence of the patent system as well as the federal system that generated it, and that the defendants in effect consented to, or waived their right to complain about, patent infringement lawsuits. (Likewise, I have no problem with taxes in general–taxing Democrats is fine by me. They asked for it. Only problem with it from my perspective is it is giving funds to a dangerous group, but I don’t feel too sorry for the “victims.”)

Incidentally, it is similar for copyright–except that you have a copyright in things you write automatically, by virtue of federal law–there is NO need to register a copyright, or to stamp a copyright notice, on your works, in order to have a copyriht. As soon as you put pen to paper, you have a copyright in your work, whether you register it or not, whether you mark it “©” or not. (Registering it is necessary before you file a lawsuit; and using the notice gives you some damages advantages, but it’s not necessary.) Copyright is a noun, not a verb–you can’t “copyright” something; rather, federal law gives you a copyright in some things. That means all of us already own copyrights, that is have a right to sue others. It is analogous to having a patent–a right to sue. Whether or not, or how, you exercise this right, has libertarian implications; but merely having the right to sue is not a rights violation.

From: The Morality of Acquiring and Enforcing Patents, posted on the LRC blog.

Update: Related posts: The Most Libertarian Patent Work; Advice for Prospective Libertarian Law Students; Are anti-IP patent attorneys hypocrites?; An Anti-Patent Patent Attorney? Oh my Gawd!; A collection of recent blogs about patent hypocrisy and “success” stories.

  1. RIP; see his article Patent Politics. Here he writes of: “the trump of property, a strategy of defining patents according to property law concepts far removed from debates over the public interest in the issuance of patents…. the foregoing description of patent law as a form of competition regulation, let alone as a form of national industrial policy, is obviously not the conventional one. Organized patent interests (the patent bar, patent proprietors, and their sponsors) do not espouse that view, but instead habitually offer a more cramped description of patent law. One might call that description the trump of property—a strategy to secure the claim that proprietors can exclusively own patents, and to eliminate any argument that the public has a continuing interest in issued patents. That description promotes patents as just another kind of property, but firmly rejects any suggestion that patent law represents either a form of competition regulation or a national industrial policy. With a firm foundation in free market theories, the strong claim that patents are just another form of property implicitly rejects the idea that patent law serves any regulatory function…. “. However: “Many libertarians, practically wedded to the free market system, surprisingly oppose patent rights. One libertarian critique concludes, “We see, then, that a system of property rights in ‘ideal objects’ necessarily requires violation of .other individual property rights, e.g., to use one’s own tangible property as one sees fit. Such a system… subverts the first-occupier rule. IP, at least in the form of patent and copyright, cannot be justified.” Quoting my AIP. For examples of this dishonest tactic, see Richard Epstein on “The Structural Unity of Real and Intellectual Property” (Mises 2006); Yet more disanalogies between copyright and real property; Classifying Patent and Copyright Law as “Property”: So What?. []
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