I spoke to a class of upperclassmen at Henderson State University today about intellectual property. These students, all business majors, are preparing business plans for course credit as well as several local and statewide competitions that have cash prizes for the best plans.
Using the Coke bottle analogy, I taught them about the different forms of intellectual property, and I fielded questions from the students about how intellectual property fit into their business plans. The students were curious about the different forms of intellectual property fit together, what type of patent and trademark procurement costs they could expect to report in their business plans, and how to search for software patents using free tools.
Good luck to Professor Lonnie Jackson's students on the upcoming business plan competitions!
All kidding aside, this clip discusses a serious issue of patent law. The very first patent law, 35 U.S.C. § 101, says: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor[.]" This doesn't include laws of nature (like E=mc²) or discoveries of natural things (like genes or a type of diamond). Patenting a gene would be like patenting a leaf off a rare, exotic tree — perhaps it took work to locate it, but the tree species itself had already been there for thousands of years.
Many large companies, particularly in the pharmaceutical industry, apply for thousands of patents every year. This is one reason why prescription drugs and medical testing devices are so expensive. Unfortunately for consumers, many of these patents are of questionably quality because they cover slightly modified uses for old drugs or don't cover patentable subject matter. If low-quality patents like human gene patents can be weeded out, perhaps we can ease the crisis of the ballooning costs of health care in this country.
What do you think about patents on laws of nature and discoveries of natural things like genes?
Where does intellectual property come from? Different places. Patents and copyrights come from the U.S. Constitution — Article I, section 8, clause 8. It says Congress shall have the power to:
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
“To promote the progress of science and useful arts”
Patents can only be granted for scientific inventions. However, laws of nature and mathematical formulas are discoveries, not inventions, so they can’t be patented. Patents have reasonable terms — 20 years from the date of filing.
Copyrights can granted on most types of artistic works movies, songs, books, magazines, sculptures, and almost any other writing or work of art. Copyrights last much longer than patents — 75 years after death. Why? It sounds silly to say, “because of Mickey Mouse” — but every time Mickey Mouse’s copyright gets close to expiring, a certain company lobbies Congress to get its copyrights extended. Is it constitutional to keep extending copyright terms?
“by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”
Owners can exclude others (in court) from making, selling, copying, or otherwise using their inventions and writings. Owners can sell, license, and transfer intellectual property just like other personal property (cars, jewelry, etc.).
Let us know if we can help with your patent and copyright needs.
I was invited by Principal David Maxwell and instructor David Gustaveson to speak to several business classes at Arkadelphia High School this morning on the subject of intellectual property.
I told the students a plastic Coke bottle represents 5 types of intellectual property and asked for their help in naming each one. We walked through (1) the design patent for the shape of the bottle, (2) the utility patent for the tamper-resistant top, (3) the trade secret on the Coke formula, (4) the trademark for Coca-Cola® and Coke®, and (5) the copyright for the label.
The discussion turned to the laws for intellectual property. We discussed the constitutional basis for each type of intellectual property and some basic tensions between protecting intellectual property rights and encouraging free sharing of ideas. iPhone vs. Android helped illustrate some of these principles, and the students were divided in their loyalties to their cell phones.
I appreciate the students being attentive and interactive. Thanks to Mr. G and Principal Maxwell for inviting me out! And, thanks to Paul Sivils for giving me a tour. AHS has changed quite a bit since I was a student!
UPDATE: We've added a page on the site that includes an explanation of how a Coke bottle represents five different types of intellectual property. Check it out here.
I am raising two small children. The oldest is three, and like all children, he is learning quickly at this age. He gets excited about new things —his bedtime story earlier this week turned into an hour-long Q&A where he wanted to know everything I know about electricity. Starting with Ben Franklin to the stuff from my electrical engineering classes (which was often sleep-inducing to me during summer school) to how the stop-motion video for his trains works (see below), he just listened with wide eyes and asked tons of questions. Even with my weekend chores and our play time, he wants to know the hows and whys when he's helping. (Surely most parents are familiar with the question "Why?" 30 times in a row.) He asks all kinds of questions without shame or a preconceived notion about what the answer should be.
As a parent, I'm glad that he's interested in knowing how things work, and that he gets excited about learning how to do those new things. The play is fun, but learning how the new activity works is important so he can play and learn and ask questions when I'm not around. Teach a man to fish, as they say. And it's not just my son — all little kids like learning new things.
Which brings us to the title line, which is from Corinthians and is something my wife really enjoys. It talks about how we did things differently as children, yet now our knowledge remains incomplete. We see through the glass darkly. We don't question things, nor do we seek out new knowledge in its own right like our kids do. That's why my three year old can pick up my phone and show me how to do things I never dreamed it would do. I suspect if we thought more like children do, for knowledge itself, the glass might be a little clearer.
The people we read about in history books are the ones who weren't afraid to ask questions and then look for the answers. Of course, you're not always going to get the right answers. In many instances, you're probably not even asking the right questions.
In my work as a patent lawyer and a trial lawyer dealing with medical issues, I run into two types of people. First, there are the people who question how a product or medical test works and how it could be made better. They may try new designs, tests, or treatments. Some might not work, but usually these people wind up figuring out a creative answer that is an improvement on their practices. These folks are the innovators, the reason we have advancement in technology, science, and medicine.
Second, there are people who are resistant to things they don't understand, or don't bother to learn about new things. I've seen businessmen refuse to consider that their tech business could be displaced by the next best thing. I've also seen doctors refuse to consider strong empirical evidence of effective new tests in favor of decades-old tests with half the diagnostic resolution. Without asking questions, how do these folks know what they're doing is ultimately helpful to their customers, clients, or patients? If only those who see through the glass darkly would merely begin with the question, what if I'm wrong?
