decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
The value and worth of patents | 98 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Clarification
Authored by: Gringo_ on Friday, November 09 2012 @ 09:58 AM EST

When I said a patent has no intrinsic value, I was only thinking of its sale value, which entirely depends on somebody willing to buy it and how much they are willing to pay for it, if at all. However, if someone infringes that patent and you sue him, then the value of the patent is whatever is decided by the court, which of course could be zero.

[ Reply to This | Parent | # ]

The value and worth of patents
Authored by: Ian Al on Saturday, November 10 2012 @ 04:23 AM EST
Forgive me from replying at length. The writers of the Constitution actually proposed protections that were not, in the event, supported by the law. They made little distinction between works of authorship and useful works of invention. (Rather than useful inventions, the Constitution refers to useful Arts; the quoted text explains what the term 'useful arts' actually intended.)

The law saw that providing copyright protection of ideas fixed in a medium, impinged on freedom of speech and did not promote the progress of science and useful invention. Both copyright and patent law protection exclude scientific ideas and laws of nature.

Because of conflicts with other aspects of the Constitution, the copyright and patent laws are careful to restrict the protections as intended by the Constitution, when taken as a whole.

From Wikipedia:
The Constitution

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

History

On August 18, 1787, the Constitutional Convention was in the midst of a weeks-long stretch of proposals to establish what would become the enumerated powers of the United States Congress. Three such proposals made on that day addressed what are now lumped together under intellectual property rights. One, by Charles Pinckney was "to secure to authors exclusive rights for a limited time". The other two were made by James Madison, who had previously served on a committee of the Congress established under the Articles of Confederation which had encouraged the individual states to adopt copyright legislation. Madison proposed that the Constitution permit Congress "to secure to literary authors their copyrights for a limited time", or, in the alternative, "to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries".

Both proposals were referred to the Committee of Detail, which reported back on September 5, 1787 with a proposal containing the current language of the clause. No record exists to explain the exact choice of words selected by the Committee on Detail, whose task was essentially no more than creating a draft Constitution by arranging the proposals that had been made into the most appropriate language. On September 17, 1787, the members of the Convention unanimously agreed to the proposed language, without debate, and this language was incorporated into the Constitution.

Effect

The clause actually confers two distinct powers: the power to secure for limited times to authors the exclusive right to their writings is the basis for U.S. copyright law, and the power to secure for limited times to inventors the exclusive rights to their discoveries is the basis for U.S. patent law. Because the clause contains no language under which Congress may protect trademarks, those are instead protected under the Commerce Clause. Some terms in the clause are used in archaic meanings, potentially confusing modern readers. For example, "useful Arts" does not refer to artistic endeavors, but rather to the work of artisans, people skilled in a manufacturing craft; "Science" is not limited to fields of modern scientific inquiry, but to all knowledge, including philosophy and literature.
The courts have refined the scope of what useful arts can be protected by 'premiums'. In Fonar v. GE the court said:
As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed. It is well established that what is within the skill of the art need not be disclosed to satisfy the best mode requirement as long as that mode is described.
The courts make it quite clear that a patentable invention requires inventive skill and experimentation way beyond the normal skill of the art employed to implement the invention.

Madison's proposal was to promote the progress of science and useful arts by proper premiums and provision. They would be applied to useful inventions.

In a free market, the correct price for the transfer of patent protection is whatever the parties agree. That is the market value and not the value of the usefulness and innovation in the invention. It is that intrinsic value that the Constitution protects in order to encourage more of the same endeavour.

The courts have a number of effective ways of evaluating the free market price that should apply between any two parties in a patent dispute. That is appropriate for the evaluation of commercial damage. The courts have not, to my knowledge, attempted to evaluate the intrinsic cash value of a patented invention.

In the Apple and Microsoft cases, the court are asked to evaluate the universal FRAND value of patents. The only basis for evaluating the value of a patented invention in the USA is the law and the Constitution. The law says nothing about such an evaluation. The Constitution says that the premium is that which encourages the progress of useful inventions.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )