Unconstitutional Abuse Of Patent System?

[eniwetok]

Business benefits from numerous freebies provided by government which greatly enhance the wealth and power of corporations and their owners... freebies such intellectual property monopolies... patents, copyrights and trademarks. (Doesn't Trump claim his "brand" is worth 3 billion?). Then there's free limited liability protections for corporations which arguably should be purchased as insurance from the private sector. This protects the private wealth in the case of corporate bankruptcies... even if it shafts legitimate creditors.

Of these four only two appear in the Constitution. From Art 1

The Congress shall have Power... 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;

Along with the 2ed Amendment it's one of the few places in the Constitution that states a purpose... both are being ignored.

So is any patent for an idea designed just to create vendor lock, hence profits, and not "progress" therefore unconstitutional? Does abuse of the patent system harm the economy more than promote progress?


I'm not sure if there's a patent involved in this example or not... but assume there is. HP recently created new firmware for their printers so third party ink cartridges would not work after a certain date. Their rational.... to protect their intellectual property.

According to http://www.myce.com/news/hp-officially-responds-pre-programmed-failure-date-non-hp-cartridges-80467/

Now HP confirmed this was intentional to the Dutch public broadcasting station ‘NOS’.

“HP printers reject non-HP cartridges in several cases. This is protect innovation and intellectual property, but also to improve the safety of products for customers” , HP told the NOS in a statement. HP also added that, “the company indeed made changes to the software of several printer types”.

The changes are made according to HP, “to protect the printers and to protect the communication between the cartridge and the printer.”

“Affected printers will continue to work with refilled cartridges if they contain the original HP security chip. Other cartridges possibly don’t work”, HP added.

[FBaggins]

1. I wouldn't say that it's unconstitutional or unethical

I'd also hesitate to characterize essential intellectual property rights as "freebies provided by government"

However - I would say that printers are cheap and if I had an HP that stopped accepting generic cartridges... I would replace the printer.

OTOH - computer games used to be much more expensive (relatively) because they were using legal purchasers to offset losses caused by software pirating. If HP is successful in forcing people to use HP-branded supplies and then dramatically lowers the cost of their name-brand cartridges... that might be different.

[eniwetok]

3. of course they are freebies...

I have no problem with inventors and creative types getting intellectual property monopolies... but arguably these are positive rights not natural rights. And the conditions under which these protections are issued and the length of these protections are entirely dependent on what government says. Hence they are freebies... minus any processing fees. And if the government extends protections to ideas long past the point they promote progress... or for ideas that do NOT promote progress... then they are pure gravy.

[markpkessinger]

9. I think there is an unstated assumption in the Constitutional provision . . .

. . . which is that giving creators/innovators a time-limited period during which they can fully develop their product, bring it to market and recoup their investment, per se encourages progress and innovation. Unfortunately, the Constitution gives no guidance as to the appropriate length of time for such protections, and leaves it to Congress to determine, which Congress has. We can argue about the duration of the protected period -- we can argue that it is much longer than it needs to be in order to accomplish its constitutional purpose -- but we really can't argue that it is "unconstitutional," because the duration of that period was determined by Congress, as the Constitution itself provides. And it is "limited," even if that limit is longer than many of us believe it should be or needs to be.

[eniwetok]

12. no time limit... BUT

Sure there's no set time limit set for patents or copyrights in the Constitution... but there IS a standard for the issuance of patents... and that's to promote progress and sure that means someone may profit off their invention. But not all inventions constitute real progress. Too much creativity is wasted in the US trying to game the patent system to protect inventions that are designed to just make products cost more over their life cycles. It's no different than how Big Pharma games FDA regs to keep prices high.

[markpkessinger]

14. Again, you are arguing that the time limit set by Congress exceeds what is necessary . . .

. . . to fulfill its Constitutional purpose. That's a reasonable argument to make, but it is hardly cut and dried, and it is exceedingly doubtful that the courts would substitute their judgment for what that time limit should be for that of Congress, to whom that task is, per the Constitution, specifically delegated. And even IF you could persuade a court that it should do that (and that in itself would be a very, very tall order), the courts would then have to cast about for some kind of objective standard they could use that necessarily better fulfilled the Constitutional purpose than the one Congress has determined.

Trust me, it won't happen.

[markpkessinger]

19. Actually, I seriously doubt a court would even be willing to hear such a case . . .

. . . because it raises an issue of separation of powers. The case would be dismissed out of hand for lack of subject matter jurisdiction.

[onenote]

17. Do you think whether a book is protected by the copyright law should depend on its content?

Because you seem to be suggesting something analogous to that for patent law and the constitutional language is applicable to both.

Put another way, should only books that 'promote the progress of science and the useful arts"?

[sharp_stick]

2. I don't know if it's a patent issue

If you create a product and want to restrict that product to only proprietary consumables there's nothing wrong with it legally as far as I can tell.

It's an HP product, they can pretty much do what they want with it.

[eniwetok]

4. many companies would rather not compete

Given a choice, many companies would rather not compete... but trap consumers in proprietary vendor lock... and then milk consumers. Videogame consoles are a perfect example of this pathology. It costs more to design, produce, distribute, promote 3 propriety consoles than just one that might contain the best ideas of the gaming industry. But the companies know it's the consumers that pay for all that extra overhead. And it costs more to produce games for those three incompatible formats.

The issue I was raising was whether patents should even be issued for ideas where protecting profits is the only purpose. The Constitution is clear why these intellectual property monopolies should exist... and profits isn't on the list.

But like the idea of the corporation itself... the abuse of the patent system isn't an issue any political party wants to discuss... with the exception of some hard line libertarians.

[markpkessinger]

10. Sure, but consumers continue to have other purchase options available . . .

. . . It's a bit like buying a foreign-make automobile for which parts are difficult to obtain and come at a premium price. You can argue that you have been "trapped" by this, but the fact remains you didn't have to by that make and model to begin with, and this is probably an issue you should have, as a diligent consumer, looked into before you bought the car.

[eniwetok]

11. or, this is a pathology of capitalism

One can only wonder how much further resources could be stretched if we had more standardized production. We have standards everywhere else from the electrical system to gasoline, to plumbing fixtures etc etc. If capitalism had its way we'd be back to two incompatible electric standards.

We simply never bother to ask what all the inefficiencies cost. Imagine all the world's cars built on 8-10 standardized chassis and drivetrains. Prices for manufacturing and maintenance would plummet.

[markpkessinger]

15. For better or worse, the principle of 'caveat emptor' is deeply embedded in US law and jurisprudence

. . . and I agree it's a pathology of capitalism.

[meow2u3]

5. No wonder my printer won't print

It's an HP and the latest update must have blocked the third party cartridges from working. I have plenty of ink in my cartridges.

[WillowTree]

6. Patenting has nothing to do with your issue with HP. And they're not "abusing" anything.

They have simply decided to build their printers to only accept their proprietary branded ink cartridges. That is, and should be, their prerogative. It's no different than how Kindles are limited to their proprietary e-book formats (though they do also accept some file formats that are not predominantly for e-books such as .doc or .pdf etc).

A patent just limits competitors from duplicating a new product for a number of years to allow the originator of that product to recoup their development costs.

And, by the way, in my experience, refilled HP branded cartridges don't work in their printers very often, either.

[eniwetok]

8. you're evading the issue...

You might not like my example of HP, but that was merely an example. You're evading the issues of whether patents should be issued for reasons other than encouraging technical or scientific progress. That is the ONLY justification the Constitution gives for this positive right.

If patents were not issued for every new ink cartridge shape or chip designed ONLY to create vendor lock... then companies would have to base the initial printer sales price on cost of manufacturing not expected sales of proprietary cartridges. What's wrong with that?

[WillowTree]

16. I'm evading nothing.

But you've apparently got something stuck in your head and are not going to listen to anything else, so I won't bother you anymore.

Have a great evening!

[eniwetok]

20. PKB

You're actually doing what you accuse me of.

You're still evading the basic intent of patent and copyright law set in the Constitution... and that this intent is largely being violated and consumers are the victims just as they are by the games Big Pharma plays. Your pro-corporate viewpoint is right there in your first post

They have simply decided to build their printers to only accept their proprietary branded ink cartridges. That is, and should be, their prerogative. It's no different than how Kindles are limited to their proprietary e-book formats (though they do also accept some file formats that are not predominantly for e-books such as .doc or .pdf etc).

A patent just limits competitors from duplicating a new product for a number of years to allow the originator of that product to recoup their development costs.

I'm not a big fan of the Constitution since it's antidemocratic and virtually reformproof. But it has more standing than do the rights of those artificial persons called corporations. They have no rights other than what we (and far right courts) give them.

[onenote]

18. if patents could only be issued to encourage technical or scientific progress

then it would follow that copyright protection also should be limited based on the content of a book or song or picture.

[eniwetok]

21. copyrights are limited

Copyrights have always been limited but they keep getting extended... as this chart from Wikipedia shows with the 1998 https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act which has been dubbed the " Mickey Mouse Protection Act".

[onenote]

24. not a response to the point i was making

apart from the fact that the extension by Congress of the duration of copyright protection was upheld by the Supreme Court as constitutional by a 7-2 vote (with Ginsburg writing the opinion).

[eniwetok]

22. Oops, I misread your post

The language of Art 1 is clear Congress has the power to create these intellectual monopolies consistent with the intent of Art 1. For whatever reason Congress always set two different limits for inventions vs copyrights.

Here's the first such law from 1790

https://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/1st_Congress/2nd_Session/Chapter_7

14 years for patents and 14 years for copyrights BUT they could be renewed for another 14

http://www.varsitytutors.com/earlyamerica/firsts/first-u-s-copyright-law

[onenote]

25. You're still missing the point

You have suggested that whether an invention is entitled to patent protection should, as a matter of constitutional law, be limited to inventions that promote promote the progress of science and useful arts.

My point is that, to be consistent, you would also have to limit copyright protection to writings, art, music, etc. based on whether they meet the same standard.

And that's never been the law nor will it ever be.

[bluesbassman]

7. That didn't work out so well for Kuerig and their coffee maker.

As it's not a daily consumable maybe HP will get away with it with existing owners.

I'm going to be in the market for a new all-in-one printer soon though, and HP will not be on the short list.

[lumberjack_jeff]

13. US patent and copyright law is largely irrelevant

Treaties are the supreme law of the land, and we're now governed by WIPO, GATT, NAFTA etc.

But yeah, patent/trademark law undermines it's stated purpose.

[Crabby Appleton]

23. I thought this thread was going to be about this outrage

[msanthrope]

26. I think your legal acumen should be directed to a fellow DUer in need.....

laserhaas, who has sued Mitt Romney extensively, and you, might find yourselves in a beneficial relationship....

http://www.democraticunderground.com/~laserhaas