John Locke and Patent Law - Book Report/Review Example

JOHN LOCKE AND PATENT LAW 2006 Breaking down the problem In the book Two Treatises of Government, John Locke (1689) wrote: "Though the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person". This, nobody has any right to but himself. The "labour" of his own 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 own labour with it, and joined to it something that is his own, and thereby makes his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this "labour" being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others". (J. Locke, Two Treatises of Government, Chapter 5, paragraph 26) The first thing to do before attempting to discuss Locke's theory is to systematically pulverize his statement to make it more understandable. Locke: Though the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person". This, nobody has any right to but himself. Simplified: Even if the earth and all its creatures belong to humankind, each person has a right to his or her own property. Nobody else has a right to this property other than the owner. Locke: The "labour" of his own body and the "work" of his hands, we may say, are properly his. Simplified: Whatever a person produces by work belongs to him. Locke: Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his own labour with it, and joined to it something that is his own, and thereby makes his property. Simplified: If he takes something and alters it from its natural state, he has worked to create it, therefore, it belongs to him. Locke: It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. Simplified: By altering the object, he adds something to it that makes it exclusive his. Locke: For this "labour" being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others. Simplified: The product of a person's work belongs to him and to other person. Nobody else can have any right to it for as long as there is something of the same quantity and quality left for the public. All in all, we come up with our own modern and simplified version of John Locke's theory: Even if the earth and all its creatures belong to humankind, each person has a right to his or her own property. Nobody else has a right to this property other than the owner. Whatever a person produces by work belongs to him. If he takes something and alters it from its natural state, he has worked to create it and, therefore, it belongs to him. By altering the object, he adds something to it that makes it exclusive his. The product of a person's work belongs to him and to other person. Nobody else can have any right to it for as long as there is something of the same quantity and quality left for the public. Now, the next step is to break these statements down and discuss them one by one. Patents are property Oxford Dictionary (2006) defines property as "the right to the possession, use, or disposal of something; ownership." This is the most basic premise of the whole idea on patents. A patent is intellectual property. Intellectual property is property. The same general rules and principles that govern property apply to patents. A patent holder, as the recognized owner of an invention, is granted the right to make, use or sell his invention in exclusion of everyone else. The World Intellectual Property Organization (2006) says that "a patent owner has the right to decide who may - or may not - use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection ends, and an invention enters the public domain, that is, the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others." This highlights the fact that a patent is intangible property that may be assigned to another person. A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem (UK Patent Office, 2004). It is the act of the government of granting a monopoly to an inventor over his creation for a limited period of time. It is of common knowledge that monopolies are bad for the market, in general. The court in Darcy v. Allein, 77 Eng. Rep. 1260 (King's Bench, 1603)had this to say about monopolies: "Grant of a monopoly damages not only tradesman in that field, but everyone who wants to use the product, because the monopolist will raise the price, but will have no incentive to maintain the quality of the goods sold." Nevertheless, lawmakers found the need to give inventors, for a limited period of time, a monopoly over their inventions in exchange for the disclosure of the technical details of their creations. The purpose of this is threefold: 1) to give the inventor a chance to recover his costs and maybe profit from his invention; 2) to encourage inventors to disclose information rather than keep it to themselves for fear of damaging competition; 3) to encourage other people to be more innovative and create more new products that will make life easier. Some authors may disagree to the idea that patents encourage people to spend more on research and development or to be more innovative (Anonymous, 2006). They even say that the patent system has caused nothing but harm to the consuming public and even to the small-scale producers who are unable to compete with the large companies who are able to acquire cross-licenses with one another. Nevertheless, one fact remains: patents serve as a reward to inventors for their creativity and labor. Through the patent system, inventors are given the fruits of their labor. The one who alters owns the alteration No person can create something out of nothing. All creations or inventions are created from things that are naturally occurring. Cars are built from metal and plastic. Houses are built from wood, steel and stone. Therefore, all creations and inventions are necessarily acts of alteration. A person takes something from nature, performs certain works on it, and creates something new. Just as the fruits of a person's labour rightfully belong to him, the object invented must also belong to the inventor. This piece of altered nature belongs to him who altered it and created something new. According to Locke's theory, this exclusively belongs to the inventor because it was he who joined to it something that is his own. The Patent Act 1977 says something similar1. For an invention to be patentable it has to be novel, it must involve an inventive step, it must have an industrial application and it must not be excluded subject matter. The novelty requirement is satisfied when "the invention must never have been made public in any way, anywhere in the world, before the date on which an application for a patent is filed" (UK Patent Office, 2004). This is needed to ensure that what the applicant created is truly original and not something already in existence. According to Decision T12/81 BAYER/Diastereomers [1979-85] EPOR Vol B 308, "the purpose of Art. 54(1) EPC is to prevent the state of the art being patented again." In simple terms, it is meant to prevent patent applicants from taking credit for another person's labour. The inventive step requirement is met when "an invention involves an inventive step if, when compared with what is already known, it would not be obvious to someone with a good knowledge and experience of the subject." (UK Patent Office, 2004). This is needed to ensure that there was, indeed, effort involved to come up with the said invention. It must not be obvious to those in the same field or industry. To present something obvious to the patent office would be effortless and undeserving of any kind of reward. In Philips' (Bosgra's) Application [1974] RPC 241 "the source of the word "obvious" is the Latin "ob via", literally "lying in the road". The obvious things are there for everyone's use. Finding something that is merely "lying in the road" is surely undeserving of a 20-year monopoly over the same. The element of industrial applicability is satisfied when "an invention must be capable of being made or used in some kind of industry. This means that the invention must take the practical form of an apparatus or device, a product such as some new material or substance or an industrial process or method of operation." (UK Patent Office, 2004). This ensures that an applicant's grant will be limited to a certain industry or product and will not be so broad as to exclude other potential producers from using the same theories to other applications An inventor must not hold on to abstract ideas in the exclusion of everyone else. He has to limit himself to a specific application so that others may be free to explore other possibilities. He may of course, apply for several patents based on the same theories, but it would be unlikely that a single person would be able to foresee all the possible applications of his theories. To allow him to monopolize an abstract idea is to allow him to preempt any and all future applications of his idea to other industries that could be potentially helpful. This will discourage other scientists and producers from exploring the patent holder's theory further, thereby, obliterating the very purpose of the patent system. This brings us to the next part of our discussion. There must be enough for everyone else Locke was so careful with his words that he included a qualification in the end. To have something left in common for everyone. The law also realizes that there are things that must be rightfully excluded from the list of patentable subject matter. Section 1(2) of Patent Act 1977 gives us this enumeration2. In addition, it is not possible to get a patent for an invention if it is a new animal or plant variety; a method of treatment of the human or animal body by surgery or therapy; or a method of diagnosis. There are certain things that must be reserved for the common good. For instance, a method for treatment cannot be patented because of the compelling public interest in the subject matter. Even in the case of medical products, there would be some kind of restriction. A drug may be patented but in certain conditions like scarcity, the patent holder may be compelled to grant a mandatory license to another producer. It must be remembered that patents are granted, ultimately, to benefit the public. Initially, it might be seen as a reward to the inventor for his efforts but the effects of his disclosure and the subsequent research that will be conducted because of such disclosure will more than make up for the economic ills of an existing monopoly. The patent system was created with the public interest always in mind. The mere fact that there are explicitly stated exclusions is enough to show use that public concerns like health, safety and policy were never set aside. A literary, dramatic, musical or artistic work may not be patented mainly because these works are more properly protected by another form of intellectual property called a copyright. Copyright attaches upon intellectual creation and no form of registration or act is needed to make the copyright valid and effective. Copyright law has a longer period of protection and the rules and requirements are much different from that of a patent. Suffice to say, these works are protected under the law. A method or scheme is not patentable because these things continue to be abstract ideas and to allow them to be patented will preclude other people from employing the same methods or schemes to other different industries. However, there have been developments in the business world where business methods are now being protected as trade secrets. Computer programs are not patentable under the UK law but it has recently been given patent protection in the United States. However, the source codes of computer programs may be protected by copyright. Plant varieties and animal breeds are also considered unpatentable subject matter because they cannot properly considered as inventions but they are merely discoveries. It failed to meet the inventive step requirement because there is no substantial human intervention in this case. A person cannot properly "invent" a life-form because these are naturally occurring and the act of breeding animals and creating plant varieties may be seen as obvious. They are not, on their own, patentable. However, products that might be acquired from them may be properly given patent protection. In the realm of cloning, no definite policy has yet been made. In the current state of the law, cloning is still included in the patent prohibition for animal breeds and plant varieties. Also, abstract ideas like mathematical formulas may not be patented without limiting its application to a specific product. This ensures that an inventor will not be given a monopoly so wide in its application that it will completely freeze the market. An inventor who uses his mathematical formula or abstract idea to develop a product will have to disclose the technical details of his invention. This benefits the public because other people may be able to use the inventor's ideas and give them a different industrial application. Here we have a case where one person comes up with an idea, teaches it to the world and other people find other uses for his idea. This is the goal of the patent system: Knowledge transfer and innovation. Conclusion An inventor has the right to be rewarded for his hard work. But his work must not completely deprive other people from something that could improve or even save their lives. A person who invents a cure for cancer or AIDS cannot be allowed to run away with his patent in isolation and refuse to grant licenses to other producers. A scientist who is able to discover a clean alternative to fossil fuels cannot be allowed to exclude others from availing a discovery that will surely benefit all persons on a global scale. John Locke teaches us that work must be rewarded. A person has the right to own property and to do whatever he wishes with it for as long as he does not invade upon the rights of other people. It is true that every person deserves his due. But Locke also teaches us that a person must not be rewarded so greatly as to amount to a deprivation of others. Allowing a person to gain a reward that is ridiculously disproportionate to the work he actually put in is not a giving a man his due. This is blatant injustice. This is unacceptable in any modern legal system. The patent system was designed to benefit all persons. It was created not for the sake of the brilliant few but for the sake of the public. The law gives an incentive so that the brilliant few may be willing to teach the rest of the masses without fear of being taken advantage of. A patent is both a reward and a responsibility. It is a reward because it gives the inventor the exclusivity to make a living out of his efforts. It is a responsibility because by being the sole producer of his product, much is demanded of him in terms of quality and quantity. This is a simple and necessary form of protection to allow creativity to flourish and to encourage future generations of brilliant minds to continue searching for more and more ways to make life better. Bibliography (n.d.). Patents do not work. Retrieved May 24, 2006, from http://ptz.com/c/a00002.html Darcy v. Allein, 77 Eng. Rep. 1260 (King's Bench, 1603) Decision T12/81 BAYER/Diastereomers [1979-85] EPOR Vol B 308 Oxford. (2006). Property. Oxford University Press. Retrieved May 22, 2006, from http://www.askoxford.com/concise_oed/propertyview=uk Patent Act 1977 Philips' (Bosgra's) Application [1974] RPC 241 UK Patent Office. (2004). Patents - What is a Patent Retrieved May 22, 2006, from http://www.patent.gov.uk/patent/whatis/definition.htm The World Intellectual Property Organization. (2006). Patents - Frequently Asked Questions. Retrieved May 25, 2006, from http://www.wipo.int/patentscope/en/patents_faq.html#inventions Read More