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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2 Comments to “The right to exclude…”

  1. However, it also encourages competition–LMT’s competitors will have to innovate…

    You know that is verging on a Broken Window Fallacy, right? In fact, I think it is fair to say it went ahead and fell over that edge…

    • The point of the patent system isn’t to make things easier on consumers. It’s to encourage inventors to invent and then disclose those inventions to the public so that others can build on them.

      LMT had to disclose the design of its monolithic upper to the public when it applied for the patent. Now, you can look at the monolithic upper idea and say it’s obvious, but I doubt the court would agree. It may look obvious, but it took more than 40 years for someone to think of actually doing it (the patents on the AR-15 had long since expired by this point (well, long since = ~20 years)), and that would definitely come down on the side of nonobviousness.

      Eugene Stoner had more than 40 patents, mostly relating to various parts of and modifications to the AR-15; .

      The patent system fosters competition in developing better devices, not competition in delivering the same device to the public at the cheapest rate.

      I’m not saying the patent system is good or bad; I’m just talking about how it arose and the reasons it works in this way. You can certainly make the case that because technology is improving at an ever-faster pace, the slow-moving patent system we have is ill-equipped to handle it and ought to be abolished, or that certain technologies should be excluded from patentable subject matter.

      As far as cellphone patents go, Apple generally avoids the bulk of the patent bureaucracy by applying for design patents on their stuff instead of normal patents; these are issued faster, but expire much sooner (which, given the short shelf life of cellphones, is fine with Apple).

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