“Monopoly” is not just a board game

So why do we CARE about patents anyway? What’s the big deal? Let’s say, for argument’s sake, that no one wants to “steal” my idea and use it for his or her own purposes. What would I gain from patenting my invention?

Well, according to “Inventions Patentable” statute, a patent comes with a right. The patent and the right to patent are both personal property that are related to the idea of “bundle of sticks.” “Ownership” in property is not just one thing, it is made up of multiple parts. One part being, the fundamental right to exclude others from the use or enjoyment of that property (at least that’s what my Property professor taught me).

So, even if no one wants to “steal” your idea, without a patent you can’t exclude others from making, using or selling your invention.Yes patents are that important! The key thing is that if your invention is patentable, the government will give you a monopoly over the patent for a certain amount of time, in exchange for disclosure of your invention to the public, quid pro quo. 35 U.S.C., 1946 ed., § 101.

However, a patent is so much more than a “contract” between the inventor and the government. A patent is a privilege granted by Article I, section 8, clause 8 of the United States Constitution used to promote useful inventions in arts and science. Id. A patent rewards an inventor, and this reward is protected by our own U.S. Constitution. However, after reading the “Construction of patent rights” provision of the statute, I found that there is a tension. The tension is between rewarding the inventor with monopoly in exchange for disclosure of the invention to promote the public good and rewarding the inventor so much that it unconstitutionally discourages competition from other inventors.  

If an inventor’s patent protection is so high that it discourages competition, then this would be contrary to public interest because the progression of art and science through competition would be blocked and that is unconstitutional. Id.

So what does all of this mean in the context of science, of microbiology? Well, it explains why you can’t patent the mold you find on your cheese in the refrigerator. If I grant you a patent for that moldy cheese, you would have the right to exclude me from the moldy cheese in my refrigerator. I could not use the moldy cheese without your permission. In the same vein, it explains Jonas Salk’s famous quote “[w]ould you patent the Sun?” Of course the answer is no. A person cannot receive a patent for the Sun and exclude you from bathing in it, no more than they can exclude you from using the moldy cheese in your refrigerator.

Now that is food for thought, over and out.

-S

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