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Thursday, August 23, 2012

The Trespass Fallacy in Patent Law

My colleague Adam Mossoff has a paper titled The Trespass Fallacy in Patent Law that is getting quite a bit of attention. Although I serve as one of the main foils for his argument, I actually quite like the paper’s main conceptual point. I do have my disagreements with it as well.

 Mossoff’s conceptual point is that people in patent law—both judges and scholars—tend to compare a patent’s boundaries to the land fences of real property. This is, however, a category mistake. “The patent” is a legal right that pertains to an invention. The land of real property is not itself the legal right, the legal right is the estate to land. Thus, a proper comparison is between the boundaries of inventions and the boundaries of land, and, separately, the boundaries of patents and the boundaries of real property estates. A pragmatist might quibble this is merely a debate about theory, but I think there is intrinsic value in careful language and conceptual clarity in framing the comparison. And Mossoff’s paper does an excellent job making the conceptual point clear.

That said, I think Mossoff makes a conceptual error of his own.

Mossoff makes a follow-on argument that people who criticize the existing patent system by analogy to real property are committing the Nirvana fallacy. The Nirvana fallacy, at least as I understand it, is to compare an imperfect existing arrangement (such as the existing patent system) to a hypothetical idealized system. But the people comparing the patent system to real property—and I count myself among them—are not comparing it to an idealized fictional system, whether conceptualized as land boundaries or as estate boundaries. We are saying that, based on our everyday experiences, the real property system seems to work reasonably well because we don’t feel too uncertain about our real property rights and don’t get into too many disputes with our neighbors. This is admittedly a loose intuition, but it is not an idealization in the sense of using a fictional baseline. It is the same as saying that the patent system seems to work reasonably well because we see a lot of new technology in our everyday experience.

And that latter loose intuition is crucial to even having a patent system at all. There is no rigorous study (at least none that I am aware of) that demonstrates to social science 95%-confidence standards the proposition that the patent system promotes innovation on net, such as to justify continuing to fund the PTO. If relying on loose empirical intuition based on everyday experience is idealizing a legal system and committing the Nirvana fallacy, then the entire existence of the current patent system depends on the Nirvana fallacy.

Posted by Tun-Jen Chiang on August 23, 2012 at 11:27 PM | Permalink

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Comments

Professor Mossoff's paper strikes me as attacking a straw man. Is anyone really arguing that (1) ideally, patent rights should be equivalent to real property rights, (2) in practice patent rights are less determinate than real property rights, (3) therefore patent rights are less determinate than they should be?

Mossoff cites court cases that analogize patent rights to real-property rights, but he doesn't claim that judges are taking the analogy to inappropriate extremes. Mossoff points to passages in recent scholarship that he characterizes as doing so, but I find it difficult to believe that anyone is actually relying on the real-property analogy do any significant amount of normative work (TJ can correct me if I'm wrong). The idea that a properly functioning intellectual property regime should have relatively clear boundaries doesn't depend on the real-property analogy or on the assumption that perfectly clear boundaries are possible. The point is simply that clear, principled boundaries have benefits and unclear or arbitrary boundaries have costs and these need to be taken into account in evaluating the current state of the patent system.

Posted by: AF | Aug 24, 2012 11:57:21 AM

AF, I do think people are relying on the real property analogy to do some amount of normative work (or they wouldn't make the analogy in the first place). How much normative work--well that kind of depends on both the author and the reader.

Posted by: TJ | Aug 24, 2012 1:28:06 PM

"If relying on loose empirical intuition based on everyday experience is idealizing a legal system and committing the Nirvana fallacy, then the entire existence of the current patent system depends on the Nirvana fallacy."

Probably so Prof. But, I will submit that the existence of the current patent system depended on the state actor "Government of the United States of America" wishing to have more published documents that would advance the Useful Arts in the country. And that is a rather simple thing that people in their everyday arguments seem to just gloss over. The government wants technical disclosures pertinent to the advancement of the Useful Arts. Period. That is why it exists. That it is current abused to cover things outside of the Useful Arts is another discussion.

Posted by: 6 | Aug 24, 2012 3:17:34 PM

"There is no rigorous study (at least none that I am aware of) that demonstrates to social science 95%-confidence standards the proposition that the patent system promotes innovation on net, such as to justify continuing to fund the PTO."

Professor Chiang,

There's also no similar study with that degree of confidence that proves patent systems inhibit or retard innovation to any signficant extent. In the interest of full disclosure I'm also a patent attorney who has been in practice for over 35 years now.

What I rely upon, as would Professor Mossoff (I've read several of Adam's other articles) is historical evidence and the current reality. First, at this time every (or at least almost every) country I'm aware of, including socialist/communistic countries such as China, has a patent system. If patent systems didn't provide some value, be it promoting innovation or something else, why would they continue to exist?

Second, the U.S. Constitution specfically references the power of Congress "to promote the progress" of "useful arts" "by securing for limited times" to "Inventors" "the exclusive Right" to their "Discoveries." Why would our Founding Fathers have put this specific clause into the U.S. Constitution almost 235 years ago and said that it was for the purpose of "promoting progress" of the "useful arts" if they didn't believe it did? Also, if implementation of this clause was believed to be unjustified, why was the first patent law enacted only 3 years later and without discarding some form of patent alw to the present day if "progress" of the "useful arts" wasn't being "promoted"?

Third, I did an independent study in college on the Soviet Union's experience with socialism and invention, especially with regard to patent law. In July 1919 the early Soviet government appears to have completely abolished patent rights. But by January 1920, the Soviet government adopted the French system for registering inventions. By September 1924, the Soviet government enacted a patent law based on German patent law, and later enacted patent laws in 1931 and 1941 with a distinctive "socialist" flavor that brought into being the author's certificate for promoting innovation by Soviet citizens. So even the Bolsheviks eventually recognized the need for some sort of patent system to promote innovation.

I'm also not saying that patent systems be they U.S. or otherwise function as well as they could to promote innovation. But I'm still waiting to see in the "real world" a replacement for the current patent systems that is adopted by even a significant minority of countries to promote innovation.

Posted by: EG | Aug 24, 2012 3:33:05 PM

"AF, I do think people are relying on the real property analogy to do some amount of normative work (or they wouldn't make the analogy in the first place)."

But as Mossoff himself explains, it is possible to use the analogy without making it do any normative work: "The important point here is that patent scholars took an analogy and a related simile that originally served an explanatory function in framing the property doctrines in patent law and transmogrified it into a normative standard for evaluating the operation of the patent system as such." (p. 5)

If scholars were really making normative arguments based primarily on a straightforward analogy between real property and patents, that would be fallacious for a much simpler reason than Mossoff puts forward. It's not just that patents should be compared to estates rather than to land boundaries. It's also that the invention protected by a patent is an abstraction while real property is a physical entity. It is inherently more difficult to describe the limits of an abstract idea than to describe the boundaries of a physical entity. Criticizing the patent system for having boundaries that are less clearly delineated than land boundaries, without taking into account the inherent differences between the two types of entity being bounded, seems quite plainly ridiculous. I find it very difficult to believe that anyone is actually making such an argument in anything like those terms.

TJ's article "Fixing Patent Boundaries," to take one random example, seems quite immune to Mossoff's criticism. Like other commentators, TJ uses the real-property analogy to illustrate his argument that allowing patent holders to amend their claims is undesirable. As I read it, however, his argument does not turn on the existence of any sort of close analogy between real property and patents. Rather, the argument is that the mutability of claims undermines the recognized functions of the patent system. The concepts of fences and boundaries serve an "explanatory function in framing" the arguments, but do not furnish the substance of the arguments themselves.

Posted by: AF | Aug 24, 2012 4:20:24 PM

Don't most patents applied for represent inventions for a single purpose? If that item has one or two uses and someone makes a third use, and attempts to patent the third use, why is that patent infringement. A Patent should list all the specific uses adn if someone can make it better, well, great.

Posted by: peth | Aug 30, 2012 9:49:14 PM

Super

Posted by: fotorookee | Sep 20, 2012 6:35:07 AM

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