Patents – Why They Exist, And Why They Possibly Shouldn’t Exist – Part Two

This is a continuation of an earlier article, if you haven’t already you should read Patents – Why They Exist, And Why They Possibly Shouldn’t Exist.

One issue is that Americans think that their patent system is the be all and end all, and that everyone else should imitate them. Curiously a lot of Americans even believe that their Constitution requires that a patent system exist, due to a misreading of it. Here’s a typical comment:

Of course patents will never be abandoned in the US as they are enshrined in the constitution and are a bedrock principle of personal rights, freedom, and entrepreneurialism. But of course they need to be remodeled to engender their original form, function, and purpose.

Let’s take a look at what the Constitution actually says in Section Eight.

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The important word is shall. The definition of shall from Dictionary.com says:

–auxiliary verb,present singular 1st person shall, 2nd shall or (Archaic) shalt, 3rd shall, present plural shall; past singular 1st person should, 2nd should or (Archaic) shouldst or should·est, 3rd should, past plural should; imperative, infinitive, and participles lacking.

1. plan to, intend to, or expect to: I shall go later.

2. will have to, is determined to, or definitely will: You shall do it. He shall do it.

3. (in laws, directives, etc.) must; is or are obliged to: The meetings of the council shall be public.

4. (used interrogatively in questions, often in invitations): Shall we go?

What this means is that Congress has the power to take action on the following lines. For example Line one states:

To borrow money on the credit of the United States;

If we follow the argument that those who claim the Constitution requires a patent system, this would also require the United States Government to borrow money. I’m sure that the banks would love this. Let’s take a look at another line:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

If we take the argument that Congress MUST do everything under Section Eight, would someone please explain to me why Congress has not issued a Letter of Marque in over a hundred years? Obviously Congress isn’t following the Constitution! Quick, impeach them! For that matter they have to declare WAR – they don’t have any choice in the matter, that’s what the Constitution says. And the line that everyone squeals about is worded in the same way.

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;

The point being that the Constitution gives Congress these powers, but Congress is not required to exercise them. And the Constitution also leaves the execution totally open to Congress. Congress could decide that the appropriate duration of a patent is one year for example, or thirty days. Or three hundred years. It’s all up to Congress. Also Congress gets to define certain things, for example the term ‘exclusive right’ could be interpreted in many ways, and has to be defined by Congress.

Just think – if the founders had wanted to require that patents exist the wording would have been:

The Congress will lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The wording isn’t that different, but there is a huge difference in meaning.

Now going back to the original wording, someone said to me:

…but number three, the legal definition, is “must, is or are obliged to”. Surely that means “must”?

Yep, that’s what it says. But look at the original wording again – ‘shall have the power’ – so they have the power, but there is no requirement to use it. It’s very carefully worded. It amazes me how a country that is so backward in so many ways (Health Care for example), could have a Constitution that is so well written. Really, as an American friend of mine put it

you poor Canadians – it must be like living next door to the Simpsons

his comment came from a discussion about the new Republican website where they are taking suggestions. Read this:

The Republican voter base speaks out on the House GOP website. My favorite example: “A ‘teacher’ told my child in class that dolphins were mammals and not fish!” a third complains. “And the same thing about whales! We need TRADITIONAL VALUES in all areas of education. If it swims in the water, it is a FISH. Period! End of Story.”

The above is from an article published by the Washington Post which would be hilarious if it wasn’t so damned scary.

In closing, here’s another quote from a friend, and it’s a damned important one:

It appears that for Disney & Co. “two or three milleniums” is still “limited.”

Legally Congress could do that. Wouldn’t that be wonderful?

This is the end of Part Two – Part Three to Follow.

Regards

Wayne Borean

Thursday May 27, 2010

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