The very first patent was to duplicate an existing process (the loom) and have a monopoly to produce it.
I keep hearing this argument from patent proponents, but patents have never in their history been ostensibly for good.
No it doesn't, it grants them the power but it doesn't specify they have to do it.
“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….”
There is a big difference between having a power and being forced to use it.
My reading is that Congress has an OBLIGATION to promote the arts and sciences, and has the power to use copyright and patent law to achieve those goals as congress sees fit.
You are literally looking for something that isn't there, because it is not written down.
I would love for a lawyer to chime in, because admittedly this is not my wheelhouse.
Additionally, even if Congress had an obligation to grant intellectual property rights, couldn't they simply grant patents for a term of 24 hours? or 15 seconds?
From what I've read (c.f. Clinton v. City of New York 1998), Congress can decline to use a power, but it cannot grant that power to another branch of government.
If the framers wanted to require that Congress do this stuff, why insert "have the power to" unnecessarily? There's no need for that phrase.
As another point against this being an obligation, if you look at the list of enumerated powers[0], you'll see some that are clearly not obligations. Congress doesn't have to borrow money. They don't have to maintain a navy. They didn't have to establish post offices. They didn't have to create a federal court system. (Granted, it makes a lot of sense for them to do many of these things, but it feels wrong to think that they're required to.)
[0] https://en.wikipedia.org/wiki/Article_One_of_the_United_Stat...
The basic idea here is that an authority (e.g., Congress) that has been given a specific power (e.g., declaring war) is obligated to exercise that power where appropriate.
Do note the specific phrasing above: if there is a situation in which exercising that power is the appropriate course of action, then that power must be exercised. The authority cannot choose not to exercise the power in such a situation.
So, Congress doesn't have to declare war for the sake of declaring war. However, if there is an existential military threat to the USA (e.g., aggression by the Japanese Empire in WW2) you could argue that Congress is obligated to declare war, as this would be an appropriate situation to exercise that power.
Of course, the above explanation is very simplistic. There can be specific wordings that clarify how much discretion that authority has; there may be case law pertinent to that area; and whether a given situation mandates "appropriate" exercise of a given power is never a black-and-white decision.
Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
It is notable that patent and copyright are not natural rights. At no time was it assumed that people have such rights, nor that government, without explicit authorization could grant such limited term monopolies. Calling these monopolies "good" is definitely not uncontested, nor was it ever.
As I pointed out, the constitution grants congress the EXPLICIT AUTHORIZATION you refer to, for the very purpose of promoting the PROGRESS of the arts and sciences.
I guess you think that the promotion of the progress of arts and sciences is not inherently a GOOD thing, but I'd disagree and I think the implied reasoning behind it's inclusion is entirely self-evident.
Does the current set of systems promote the progress of "science" and "useful arts" as they would have been known by those signing those laws many lifetimes ago?
From what I remember of other parts of the constitution and amendments offhand they generally don't include an explicit directive about why something is there. It's extremely implicit as an often obvious effect of what the law expressly allows or forbids.
Thus it is very reasonable to ask: Is the behavior we see from IBM in this news story promoting the progress of "science" and/or "useful arts"? Is the behavior of industry overall with respect to these tools doing more good or more harm?
The intent of the patent systems != what the patent system achieves
What I described to you, that you disagreed with was the intent of the patent system. If you want to debate what the patent system achieves, it's a much more complicated question.
It is substantiated by the text of the Constitution itself.
From what I remember of other parts of the constitution and amendments offhand they generally don't include an explicit directive about why something is there. It's extremely implicit as an often obvious effect of what the law expressly allows or forbids.
They generally don't. And therefore the statement of intent for this particular clause should be given more weight, not less.
Though you do understand the further elaboration of why I too feel it is __extremely__ important that there is a clause about why this power is reserved to Congress and a described intent / limit within which that power is to be used.
More specifically, can Congress achieve unlimited terms with regular copyright extensions to existing copyright? https://en.wikipedia.org/wiki/Eldred_v._Ashcroft ruled that they can. However their next attempt to extend has so far failed.
We will find out in 2024 whether they get it together, or whether Mickey Mouse enters the public domain after all...like it should have done in 1984. (That was the maximum that could have been expected when Steamboat Willie was released.)
Secondly, an explicit reason implies a condition: Is current patent law actually fit for the stated purpose?
Lastly, another comment here refers to the language of "amendments," presumably the Bill of Rights. The Copyright Clause is a clause, not an amendment, and not part of the BoR.
Companies file deliberately vague all-encompassing patents that are very hard to understand and pretty much useless for the purpose of educating the public and advancing the state of the art. Patents are merely weapons to be used against competitors. Companies file patents despite the existence of prior art and not only are they granted by the patent office but they're also allowed to stand uncontested due to the prohibitively expensive nature of patent litigation.
Disney and its copyright industry friends lobbied the government and successfully cheated the public out of its public domain rights by extending the duration of copyright to ludicrous lengths. If that's not criminal conspiracy, I don't know what is. YouTube and the copyright industry cheat people out of their fair use rights every single day.
A company may invent a mechanism or process which is better for its intended use than what came before. Sometimes it takes a lot of money and time and it doesn't always work. In the case of a mechanism, once it is sold, competitors could take it apart and reap the benefits without having expended the money and effort to create something new. If patents were killed off, it would discourage people and companies from making those investments. It has varied over the centuries, but currently a patent gives a 20 year time limited "monopoly" on the thing invented.
In the case of a process (vs a mechanism), without patents, a company is highly motivated to keep the process a trade secret. Even with patents a company may prefer to take that route. What do patents offer here? In exchange for disclosing the process, the company is granted that monopoly. In theory disclosing the process will spur the next round of improvements and help the system.
The problem isn't necessarily patents, but the process. Patent examiners are not paid all that well and literally have minutes to research and approve or deny a patent. They need to crank through multiple patent applications a day. And companies abuse the system. Secondly, the practice in patent law is to write the patents in such a way as to disclose as little as possible and claim as much as possible using obtuse language. If you read really old patents an ordinary person could understand most of them. Today I can read a patent in a domain I'm expert in and it is very hard to follow.
There should be some penalty for filing obvious patents, and part of the penalty would be to pay for for more patent examiners, and to pay the legal costs of the challenging party.
The early US loom patents are particularly ironic as they were “stolen” from the British design rather than actually invented, in violation of British law. The same thing applied to a whole bunch of other early technologies - the patents existed to encourage stealing other peoples ideas and hard work then claiming it as your own.
https://www.uspto.gov/about-us/news-updates/first-us-patent-...