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Economies:
Perceptions of
Intellectual Property
Rights
Federal Circuit Bar Association
International Series
September 17, ...
2

©2013 Foley & Lardner LLP
Intellectual Property and Economic
Growth
“Inventions, embodied in patents, are a major
driver of long-term regional econo...
4

©2013 Foley & Lardner LLP
Intellectual Property in the
News: Cynical View of Patent
Office
“[I]n the United States … patents are so
easy to win that...
6

The Sacred and the Mundane

©2013 Foley & Lardner LLP
Intellectual Property in the
News: Cynical View of Patent
Owners

―A fight has erupted in Congress
over the question of wh...
©2013 Foley & Lardner LLP
©2013 Foley & Lardner LLP
10

One good turn …
If you want to know just how broken the patent system is, just look at
patent D670,713, filed by Apple...
Other Dimensions in the Critique
of IP


Globalization
– Developing nations
– Pharmaceuticals
– Indigenous knowledge
– Co...
IP Cynicism (and its
Inconsistencies)
Criticisms:
– The idea is old
– The idea is simple (Even I can do it!)
– The idea is...
13

Perspectives on Intellectual
Property




Philosophical and cultural traditions inform
both criticism and reverence ...
Prometheus Brings Fire to Mankind, Heinrich Füger (1817)

©2013 Foley & Lardner LLP
Prometheus Creating Man in the Presence of Athena, Jean-Simon Berthélemy (1802)
©2013 Foley & Lardner LLP
Prometheus Being Chained by Vulcan, Dirck van Baburen (1623)

©2013 Foley & Lardner LLP
Prometheus,
Gustave Moreau
(1868)
©2013 Foley & Lardner LLP
©2013 Foley & Lardner LLP
©2013 Foley & Lardner LLP
©2013 Foley & Lardner LLP

Man Carrying Lightbulb, Tivadar Boté
©2013 Foley & Lardner LLP
©2013 Foley & Lardner LLP
The Author as an Instrument of
External Creative Forces
―A poet is holy, and never able to
compose until he has become
ins...
Inventions as “Common Property”;
“Blossoms on the tree of
civilization”

24

―inventions do not belong in the category of ...
Patents vs. “the debt owed to the
past”
“In granting a patent the government
does more than give its originator an
exclusi...
17th – 18th Century
Transformations





Equality
Individual rights
Creativity as an expression of individual
personali...
27

Landmarks in Governance





1776 – Declaration of Independence
1787 – Constitution of the United
States
1789 – Dec...
28

The Author as Creator

©2013 Foley & Lardner LLP

―Though the Earth, and all inferior
Creatures be common to all Men, ...
Patents: From “Privileges” to
“Rights”





Gifts from the
Sovereign to its
subjects
Local novelty
Disclosure
requireme...
30

©2013 Foley & Lardner LLP
31

©2013 Foley & Lardner LLP
32

©2013 Foley & Lardner LLP
“Athenian” Theory of
Creativity?
Authors’ rights to license their writings:
“A Book is the Author’s Property, ’tis
the Chi...
Property Rights and the “Birth” of
Invention
Language of ―conception‖/―birth‖ as an
intellectual and rhetorical strategy t...
35

Property Begins at
“Conception”
Inventive conception occurs …
“when the 'embryo' has taken some definite
form in mind ...
36

Birth of Bell’s Telephone
Bell’s attorney described his combination of
ideas and observations:
“The marriage was fruit...
Prometheus Bound?
U.S. Supreme Court (2012) wrestling with issues of the
limits of what may be rightfully appropriated:
―[...
38

Beyond Good and Evil IP


―Engaging in absolutist debates that intellectual
property is good or bad … may hinder the ...
Robert Silverman
Foley & Lardner LLP
111 Huntington Avenue
Boston, MA 02199-7610
Office: 617-342-4019
Mobile: 617-953-2845...
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Silverman v.2.0 technology and economies - fcba sept. 17, 2013

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

  1. 1. Economies: Perceptions of Intellectual Property Rights Federal Circuit Bar Association International Series September 17, 2013 Toronto Robert Silverman Foley & Lardner LLP ©2013 Foley & Lardner LLP
  2. 2. 2 ©2013 Foley & Lardner LLP
  3. 3. 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). ©2013 Foley & Lardner LLP 3
  4. 4. 4 ©2013 Foley & Lardner LLP
  5. 5. 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 ©2013 Foley & Lardner LLP 5
  6. 6. 6 The Sacred and the Mundane ©2013 Foley & Lardner LLP
  7. 7. 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. ©2013 Foley & Lardner LLP
  8. 8. ©2013 Foley & Lardner LLP
  9. 9. ©2013 Foley & Lardner LLP
  10. 10. 10 One good turn … 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 ©2013 Foley & Lardner LLP
  11. 11. Other Dimensions in the Critique of IP  Globalization – Developing nations – Pharmaceuticals – Indigenous knowledge – Counterfeiting  Patent-eligible Subject Matter – Business Methods – DNA Products ©2013 Foley & Lardner LLP 11
  12. 12. 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‖) ©2013 Foley & Lardner LLP 12
  13. 13. 13 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. ©2013 Foley & Lardner LLP
  14. 14. Prometheus Brings Fire to Mankind, Heinrich Füger (1817) ©2013 Foley & Lardner LLP
  15. 15. Prometheus Creating Man in the Presence of Athena, Jean-Simon Berthélemy (1802) ©2013 Foley & Lardner LLP
  16. 16. Prometheus Being Chained by Vulcan, Dirck van Baburen (1623) ©2013 Foley & Lardner LLP
  17. 17. Prometheus, Gustave Moreau (1868) ©2013 Foley & Lardner LLP
  18. 18. ©2013 Foley & Lardner LLP
  19. 19. ©2013 Foley & Lardner LLP
  20. 20. ©2013 Foley & Lardner LLP Man Carrying Lightbulb, Tivadar Boté
  21. 21. ©2013 Foley & Lardner LLP
  22. 22. ©2013 Foley & Lardner LLP
  23. 23. 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.) ©2013 Foley & Lardner LLP
  24. 24. Inventions as “Common Property”; “Blossoms on the tree of civilization” 24 ―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. ©2013 Foley & Lardner LLP
  25. 25. 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). ©2013 Foley & Lardner LLP 25
  26. 26. 17th – 18th Century Transformations    Equality Individual rights Creativity as an expression of individual personality ©2013 Foley & Lardner LLP 26
  27. 27. 27 Landmarks in Governance    1776 – Declaration of Independence 1787 – Constitution of the United States 1789 – Declaration of the Rights of Man ©2013 Foley & Lardner LLP
  28. 28. 28 The Author as Creator ©2013 Foley & Lardner LLP ―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).
  29. 29. Patents: From “Privileges” to “Rights”    Gifts from the Sovereign to its subjects Local novelty Disclosure requirements were marginal and inconsistent ©2013 Foley & Lardner LLP    29 Persons have rights in their inventions Worldwide novelty Disclosure/Notice (balance individual and public interests)
  30. 30. 30 ©2013 Foley & Lardner LLP
  31. 31. 31 ©2013 Foley & Lardner LLP
  32. 32. 32 ©2013 Foley & Lardner LLP
  33. 33. “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). ©2013 Foley & Lardner LLP 33
  34. 34. 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) ©2013 Foley & Lardner LLP 34
  35. 35. 35 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). ©2013 Foley & Lardner LLP
  36. 36. 36 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). ©2013 Foley & Lardner LLP
  37. 37. 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.‖ ©2013 Foley & Lardner LLP
  38. 38. 38 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‖ ©2013 Foley & Lardner LLP
  39. 39. Robert Silverman Foley & Lardner LLP 111 Huntington Avenue Boston, MA 02199-7610 Office: 617-342-4019 Mobile: 617-953-2845 Reception: 617-342-4000 Facsimile: 617-342-4001 Email: rsilverman@foley.com Website: www.foley.com ©2013 Foley & Lardner LLP

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