Comments on: The Pirate Party

By: Gerard Magliocca

Gerard Magliocca — Thu, 02 Jul 2009 11:52:19 +0000

Hi Andrew,

That makes sense to me. The difference, I think, is that the elites and interest groups concerned with copyright are very much against your idea. In patent, opinions are more divided.

Good luck! It’s nice to know that the blog has a global reach.

By: Andrew Robinson

Andrew Robinson — Thu, 02 Jul 2009 09:36:32 +0000

It’s very interesting to see the Pirate Party movement viewed from the perspective of a Professor specializing in Intellectual Property law. When talking to the general public (in my role as the leader of the British Pirate Party), I find that the need for some sort of patent law reform to deal with ‘patent trolls’ is actually quite a tough idea to get across, while the argument in favor of radical copyright reform is far from being a non-starter, it’s actually the key issue that the public almost universally understands and agrees with.

By: Arrr Matey! Sent Up Me WiFi And Set Sail For Ye Northern Star « Around The Sphere

Tue, 16 Jun 2009 15:59:31 +0000

[...] Gerald Magliocca While I won’t list the whole platform (it varies from country to country), the Pirate Party clearly supports a radical reduction in intellectual property rights. The U.S. version calls for the repeal of the Digital Millennium Copyright Act, the end of digital rights management, support for file sharing, and a return to a 14 year term for copyrights as provided in the 1790 Copyright Act. [...]

By: A.J. Sutter

A.J. Sutter — Mon, 15 Jun 2009 01:39:43 +0000

What does it mean to “develop” or “commercialize” a patent, and what is a “dormant” patent? This terminology might make some sense if a patent were an affirmative right, but it’s not — it’s only an exclusionary right.

Suppose someone buys an exclusive license under patent ‘00X, but never produces any product that would otherwise infringe ‘00X’s claims. Maybe you could argue that the licensor has “commercialized” the patent. But you could also object to this usage, given that there isn’t any product on the market that would otherwise infringe the patent. Moreover, if we do call this “commercialization,” we thereby bless a lot of troll behavior.

Now suppose a company obtains patents ‘00X and ‘00Y, both claiming semiconductor wafer susceptors with internal heaters, but each claiming a different technique for shielding the heater from RF noise. Such shielding is beneficial for depositing reliable thin films in a plasma enhanced chemical vapor deposition (PECVD) process, which is one of the basic manufacturing processes used to make the zillions of microchips you rely on daily. The company actually does sell susceptors, both as components of PECVD chambers and as spare parts, that are within the claims of ‘00X. It doesn’t sell any products that are within, or having components that are within, the claims of ‘00Y.

In this second hypo, is ‘00Y “dormant,” or is it “commercialized”? I couldn’t say. But does it have commercial value to the company? Probably, and the company sure thinks so, because it prevents competitors from selling a design-around product that could compete with a product the company actually is selling. This kind of patenting strategy is part of the basic nuts and bolts of industry. How would your discriminate, for purpose of your higher maintenance fees?

Finally, if you really do want to stick to a narrow definition of “commercialization” and “[non-]dormancy” that the patentee or exclusive licensor actually be marketing a product that falls within the patent’s claims, query whether this might inspire lawsuits for the purpose of showing that a patentee’s product doesn’t fall within the claims of the patent at issue. But this potential problem is speculative, whereas the others I’ve mentioned are from real-life.