Patents are Property – Like it or Not

Lately I’ve seen a flurry of postings about patents that clearly indicate a lack of understanding about patents as property. Before I write anything more I have to say that I am not an attorney or a registered patent agent.  I have a lot of experience with patents though.

Like any other property right, patents may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.  This is clearly stated in 35 USC 261.  It says:

Subject to the provisions of this title, patents shall have the attributes of personal property.  Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.

This is why they call patents a form of intellectual property.  It’s because you can own it.  Now, some people don’t like the idea that ideas can be owned.  It does not sit well with me either, sometimes.  But the fact of the matter is that the law says they are property.  You can sell them.  That’s why there’s a market for them.  That’s why there are companies that buy them and then try to make money off them by asserting the rights that the patent provides to the owner.  So called patent trolls do exactly that.  Folks use that term as a slur, as if it was some horrific beastly illegal thing that they are doing.  In fact, it’s no worse than real estate sales for investment:  buy some land, find someone to buy it for more than you paid for it.  Frankly, it’s just simple capitalism.  Of course if you think that ideas should not be owned then you might have the ‘troll’ reaction… but that reaction is based on a misunderstanding of the law.

So if we are going to have a conversation about patents let’s move away from inaccurate statements like some that have been tweeted to me – things like “A patent is not a form of property. It’s a temporary monopoly-like lease ‘to promote the progress of science and the useful arts’.”  WRONG.  Or, “Let’s not use the term ‘owned.’ #Patent is a limited right to exclude in exchange for an enabling disclosure.”  WRONG.  A patent is most definitely and clearly defined in the law as a property.  But hey, don’t believe me: go get 35 USC for yourself and read it.

Now, we can think about what it means to be property, and the different kinds of property.  I’ve read some good things on that.  But I’ve also seen some posts that are really rather silly, like this one where the author claims that since a great invention could not be copied by several manufactures his price was higher than needed, thus the market advantage was all wrong.  Huh?  The whole idea of patents is to reward the inventor for taking the time and effort to invent something useful.  The patent system worked well for that child clock inventor.  Patents are not to make products as cheaply as possible for the masses.

Where it does get fuzzy is in the area of software patents.  Clearly there’s a lot of meaty discussion that has already happened, and more that will happen.  I myself am woefully behind in following the reasoning of the bright minds in this space.  I’m trying to find time to listen to a podcast by Eben Moglen which I’m told is the definitive argument in this area.  I may or may not come to agree with the arguments presented, but I look forward to thinking about it.

But the fact of the matter is, if you want to argue about what should and should not be patentable, don’t weaken your argument by wrongly stating that patents are not property.  That’s just plain wrong.  Get over it and make some better arguments.

Be Sociable, Share!

•