Why We Don’t Have Patent Laws of 1790, while Inheritance Law did not change much since then. And what this means for Patent Law.

Why We Don’t Have Patent Laws of 1790, while Inheritance Law did not change much since then. And what this means for Patent Law.

A reply to ipwatchdog.com’s article which is promoting the US Patent Act of 1790 for today’s life.

The blog did not publish this article as a joke.

I was surprised by that.

Short answer

We don’t have Patent Laws of 1790 because Patent Laws are man-made and therefore imperfect. This is why Patent law will continue to change.

More precisely, Patent Law will become more complex and not less complex. A reset to standards of the year of 1790 will not take place.

Long answer: read the following.

We don’t have Patent Laws of 1790 because Patent Laws are man-made and therefore imperfect. IP law, especially Patent law and Copyright law, fall into the category of so-called “Positive Law“. Positive Law is man-made, by bureaucrats. In the USA, the first patents act dates back only to the year of 1790, only 200+ years ago. The first German patents act dates back to 1877. The first codified Singapore patents act dates back to 1995. Patent Law is baby law.

Inheritance Law – in contrast – is Natural Law at its finest. Inheritance Law is internationally the same, for more than 3,000 years: the right of children to inherit wealth from parents in pre-defined ratios goes as far back as the Code of Hammurabi (ca. 1750 BC). The only thing that is different from culture to culture is whether or not and – if yes – how the distribution of the inherited wealth is allowed to vary: in cultures using Civil Law (= Positive Law), for example, disinheritance of adult children is prohibited, except for a few narrowly-defined reasons that the parent is obligated to prove, before the parent deceases. Other cultures, particularly in nations using Common Law (= Natural Law), allow inheritances to be divided however one wishes, or to disinherit any child for any reason.

Tangible vs. Intellectual Property

Private property is a physical asset. The property is physically identifiable and it is under the control of the owner. No one is allowed to remove the asset from someone else’s possession without authorization by the owner. A piece of property can be used by only one person at a time. In other words, a piece of property cannot be in two places at the same time. If it is used for one thing, it cannot be used for another. If it is used by one person in order to benefit that person, another person is not allowed to take the property or the fruits of that property without permission from the owner.

In contrast to that, an idea is intangible. The problem from the point of view of ownership is this: is the idea defined as property in the way that a physical invention is? This is the debate with respect to patents and copyright. If I use somebody else’s idea to increase my income, have I stolen from him?

It is All about Positive Law vs. Natural Law

Positive Law believes that our rights are granted by the government, society or other men and therefore can be taken back by them as well. Positive law is the basis for the concept of social justice which attempts to subvert natural law and create artificial equality through regulations or force.

In contrast to Positive Law, Natural Law begins with the premise that all of our rights come from God (or nature) and are inherent to our being. In other words, laws created by men are always secondary to natural law which emanates from human nature itself.

The Ancient Blueprint of Intellectual Property

The earliest hint to Intellectual Property that I have found in written literature dates back to about 4,500 years ago. It is found in the 2nd book of Moses (Exodus 30, 22-33; KJ translation):

Moreover the LORD spake unto Moses, saying, Take thou also unto thee principal spices, of pure myrrh five hundred shekels , and of sweet cinnamon half so much, even two hundred and fifty shekels, and of sweet calamus two hundred and fifty shekels , And of cassia five hundred shekels , after the shekel of the sanctuary, and of oil olive an hin: And thou shalt make it an oil of holy ointment, an ointment compound after the art of the apothecary: it shall be an holy anointing oil. And thou shalt anoint the tabernacle of the congregation therewith, and the ark of the testimony, And the table and all his vessels, and the candlestick and his vessels, and the altar of incense, And the altar of burnt offering with all his vessels, and the laver and his foot. And thou shalt sanctify them, that they may be most holy: whatsoever toucheth them shall be holy. And thou shalt anoint Aaron and his sons, and consecrate them, that they may minister unto me in the priest’ office. And thou shalt speak unto the children of Israel, saying, This shall be an holy anointing oil unto me throughout your generations. Upon man’ flesh shall it not be poured, neither shall ye make any other like it, after the composition of it: it is holy, and it shall be holy unto you. Whosoever compoundeth any like it, or whosoever putteth any of it upon a stranger, shall even be cut off from his people.

This regulation comes with all the components of a patent law. First, there are features that define the scope of protection: all the components are mentioned there, together with their respective amounts, and also the preparation step of combining them into an oil of ointment.

This regulation was intended for the Children of God, no matter where they were.

The consequence of imitating the Holy Ointment was what happens after being cut off from one’s people: sure death.

Modern Patent Law is Positive Law.

Modern IP law is far behind its early model.

Different from the ancient blueprint, modern IP rights come with a time limit that sometimes but not always can be extended upon payment of a fee to the government.

Protection of modern IP rights is territorial, and infringements usually result in payment of damages, and not in capital punishment as in the very old times.

Actually, what we today call “Intellectual Property” is nothing else in nature than a driving license.

Bureaucrats put regulations in place which create an arbitrary situation between competing parties: why are non-commercial activities exempted from IP protection?

Another element of arbitrariness is the scope of protection of individual rights. Some business areas are exempted from IP protection, such as business methods, in some countries of the world.

I have just stated a few of the element of arbitrariness in Intellectual Property rights.

Now the following is the root cause of the problem with IP.

Intellectual Property Laws are put into Practice by Bureaucrats

Bureaucrats are a species of humans that act according to their own set of rules. The mother of all books about bureaucracy has been written in 1944 by Ludwig v. Mises and it can be downloaded here, for free.

Dr. Gary North, a promoter of Ludwig v. Mises, runs a worth reading webpage and he formulated the following basic laws of bureaucracy:

1. Some bureaucrat will inevitably literally enforce an official rule to the point of imbecility.

2. To fix the mess which this causes, the bureaucracy will write at least two new rules.

3. Law #1 applies to each one of the new rules.

I believe that you get the point now. This is why IP law and especially Patent law must continue to become more complex, and by doing so, it will inherently not become better.

Potential Issues for IP Law that Immediately Lie at Hand

The Internet will kill large parts of IP, not only Copyright but also Patent rights for devices that can be 3D printed.

Very soon, 80% of almost everyone´s own work will be obsolete or being done by an algorithm.

Enforcement against IP infringers will be more difficult in the future, because of improvements in logistics and because of Internet: catchwords are “secondary liability” or “intermediary liability”.

If Patent Law does not adapt to these and other looming threats, it will become impractical, useless and it will ultimately vanish. This is why IP law and especially Patent law must continue to become more complex.

Conclusion

We don’t have Patent Laws of 1790 because Patent Laws are man-made and therefore imperfect. This is why Patent law is continuously changing.

More precisely, Patent law will become more complex and not less complex.

When reading ipwatchdog.com’s article again, I realize that it is NOT about a better Patent law. It is about arbitrarily giving one part of the society more advantages than other parts of the society.

This is nothing else than politics.

A spade should be called a spade.

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