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Patent law arises from historical, legislative and economic concerns, according to Professor Lemley, that are well grounded in coherent utilitarian considerations.
However, when both natural rights and utilitarian arguments join in patent policy discourse, it is a subtle and important observation then that exclusively utilitarian discussions will be more productive. This is the claim of Professor Rochelle Dreyfuss from NYU in a new working paper, where she argues: the “rights rhetoric is a product of misconception. As IPRs expand, they touch on the lives of people previously unacquainted with patent(s).” Patents and Human Rights: Where is the Paradox? NYU Law and Econ Research Paper No. 06-38, Forthcoming.
Grounds for jettisoning natural rights from patent discourse include implications on policy recommendations from the consequent theoretical confusion. Elevating IPRs to human rights has unfortunate pragmatic consequences… Instead of relying on … well-understood tools embedded in existing patent law. ..
…new- human rights- justification can… thwart the traditional- utilitarian- goal of limiting protection from free riders as a means of encouraging the advancement of knowledge…
…A utilitarian perspective allows policy makers to use the ample arsenal of vailable tools to make law responsive to changes in innovation and to align the system with other social interests... The analytical effects of mixing philsophical arguments in patent policy is a shift in the focus from internal limitations of patent law's focus on innovation ("to promote the progress...", patentable subject matter, time limitation), to one of balancing between nautral rights and utilitarian concerns with no immediate comparison standards. This results in unpredictable decision making., whereas, "a utilitarian system contains its own limits. ..Internal limits are …easier to identify then a balancing point."
Professor Dreyfuss sounds like she’s merely speaking common sense. Certainly, qualitative arguments do not line-up directly with or refute quantitative ones (and visa versa). We can expect the same lesson with natural rights and utilitarian views. But there are important consequences specific to undertanding patent law in modern debates from natural rights-utilitarian meshing. Looking at Professor Dreyfuss’ paper, it is easy to understand industry’s reaction to FOSS’ “regligious” aspects, but now we must recognize the nature of FOSS’ quasi-business and economic positions, which sound more like fanaticism clothed in practical language than utilitarian reasoning. To draw this out less abstractly, consider (for discussion purposes): Patent proponents make the utilitarian argument that patents are necessary to incent creative and productive output; natural rights views of FOSS claim the importance of protecting their “freedom to tinker” with (others’) inventions and First Amendment privileges, on the utilitarian front, FOSS argues that the cumulative and incremental characteristics of technological innovation will occur with diminished or absent patent rights, and will be better off if hackers can tinker to create improvements. It is highly likely that FOSS' utilitarian policies amount to nothing more than (re)transcriptions of its natural rights positions. The FOSS utilitarian standpoint on cumultative and incremental innovation has some merit, but note that FOSS has only flourished in limited technology segments, thus its utilitarian attempt is to generalize the economic structure of those segments to the rest of the technological community (in which it is unsuccessful). On natural rights, tinkering to facillitate incremental improvements also falls in this trap over taking an economic lesson where it does not apply, and FOSS has never stated why current fair and experimental use provisions are not adequate.
posted by Noel Le @ 3:33 PM | Patents
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