Posts tagged ‘invention’

12/18/2012

Those proposing bans on semiautomatic firearms* want to take us back to the ’80s

by wfgodbold

The 1880s.

Those of you who are good at math will note that that is closer to the 1791 ratification of the Second Amendment than to today (~90 years vs. ~130 years). Certainly far closer to the framing than TV, or the internet, but about on par with radio.

Proposing that somehow the arms protected by the Second Amendment are only those in existence at its framing and ratification is the first step down a dangerous road. If that logic applies to the Second Amendment, there’s no reason it couldn’t apply to any of the others.

Twitter? Facebook? The entire internet? TV? Movies? Video games?

Not protected under the First Amendment because at its framing and ratification you had to own a printing press and print pamphlets or stand on a soapbox and shout at passers-by to be heard.

Email? Cars? Your computer? Cloud storage?

All searchable without a warrant, probable cause, or even reasonableness, because the framers did not have any of that technology.

If you don’t like the Second Amendment, you’re welcome to try to repeal it, but consider: Would repealing the First Amendment mean that we no longer have the freedom of speech, or the press, or religion? Rights are not conferred by the government–they are, in the words of the Framers, unalienable.

Self-defense is a human right, and the best, effective means of self-defense is a firearm. A firearm puts the weak, the infirm, and the small on equal footing with their attacker.

To abrogate that right in the face of media-driven hysteria would be wrong, particularly when that hysteria is based on several false assumptions: (1) Mass shootings are not becoming more common, (2) An assault weapons ban would not have stopped the CT shooter, (3) Anything that would have prevented the CT shooting would have serious constitutional problems, and (4) America has already had a conversation about guns, and the gun control side lost.

I understand the drive to do something, but gun control proponents are focused more on doing anything, whether it would work or not, and whether it would be constitutional or not.

*Including, among others, the NY Post, which somehow fails to note (probably because of the pearl-clutching) that the AR-15 was invented in the late 1950s. The NYT notes that the AR-15 is the most popular rifle in America (and yet disingenuously posts a picture of a rifle that would be illegal under CT law, instead of one that was legal, like the shooter actually used). In Heller, the Supreme Court held that the Second Amendment protects arms in “common use.” (554 U.S. at 627) The most popular rifle in America surely falls under this “common use” umbrella.

08/20/2012

The right to exclude…

by wfgodbold

Is the whole point of patent law.*

The sovereign grants the patentee an exclusive right to make, sell, import, etc. into that sovereign’s jurisdiction the subject matter of the patent.

In this case, that means Lewis Machine and Tool, has the right to exclude others from making, selling, importing, or using monolithic AR-15 upper receivers of their design.

Linoge is upset by this, and thinks it removes competition from the market.

He’s right, and he’s wrong.

It removes competition for this particular item until the term of the patent has ended (which should be in ~2029 or so; patents last 20 years, and if prosecution takes more than 3 years, patentees get additional time added to their patent duration).

However, it also encourages competition–LMT’s competitors will have to innovate, find ways around the patent specifications (because a patent only protects what is claimed; if another company were to make a product that was similar, but not substantially similar, the patent wouldn’t protect it), or go in a whole other direction.

Linoge also sounds miffed that LMT was forward-thinking enough to apply for the patent back in 2002. That’s not necessarily the case.

The law of patents is fraught with peril–when you apply for a patent, two dates are important: the application date itself, and the critical date. The critical date is exactly one year prior to the application date.

If you have published anything, made public use of your product, offered it for sale, or anything else** before that critical date, you’re shit out of luck. You can’t patent it.

The law encourages filing as early as the inventor possibly can; if you have an item that you think you can get a patent on, you should apply as soon as you can–when the invention is reduced to practice (the prosecution process allows for amending your application, so long as the prospective patentee only narrows claims).

In theory, patents protect inventors against the market; without patents, inventors would lose out on their inventions as soon as someone else with enough money to take advantage of economies of scale figured out how to reproduce it.***

I have no idea why this LMT patent took ten years to prosecute. If the system had worked (instead of being typical government bureaucracy), LMT would have been issued their patent in 2005 at the latest, and they’d be halfway through the duration of the patent by now. Instead, the public loses out by not getting the invention put into the public domain as early, and the inventor loses out by not getting the exclusive rights to his invention when it would have done the most good.****

If anyone is to blame for the headaches that the patent system causes, it’s the Venetians.

*Once again, I emphasize that I am a lowly law student–if you take anything in this post as actual legal advice, you do so at your peril. Especially since this is mostly info I learned over the summer in the Patent and Trade Secret Law course I took.

**Experimental testing is allowed, provided it’s actually experimental (records, strict inventor control, no more use than absolutely necessary, etc.). In Lough v. Brunswick Corp., the inventor (Lough) lost because he gave out several copies of his device to friends of his for testing, but he never asked about it again, or asked for its return, or anything else. Because this was more than a year before he filed for his patent, Brunswick got it invalidated and didn’t have to pay for the license.

***Patent law protects inventors by giving them a right to exclude in exchange for making their new and useful contributions to the art public; once the term of the patent has expired, anyone can make/use/sell/import the invention. Trade secret law is different; it relies on absolute secrecy (NDAs, non-competes, etc.). If you don’t want to patent your invention, and if you can keep it secret, then the only way your product can be legally reproduced is if someone else either develops it on his own, or reverse engineers it (reverse engineering doesn’t allow you to infringe on a patent, however; if you reverse engineer a patented item, you can remake it and sell that, so long as the resultant remade product is non-infringing). This is a common mistake in TV shows (cough Leverage cough). Patents are public information. Trade secrets are not. (This is why Coca-Cola ripoffs never taste right (the recipe is a highly protected trade secret), and why no one knows the secret blend of herbs and spices the Colonel uses to make his tasty chicken.)

****I get the feeling I had more to say on this, but I got distracted by footnotes and forgot it all.

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