Everyone was excited when Oracle (NASDAQ: ORCL) sued Google(NASDAQ: GOOG) over the use of the Java programming language in the Android operating system, using a series of obscure patents that no one had ever heard of before. A lot of digital ink was wasted on commentary by a variety of people, most of who either:
- Didn’t know anything about patents
- Didn’t know anything about the legal system
- Didn’t know anything about the history of the United States
- Didn’t know anything about the Constitution of the United States
- Appeared to be illiterate
- Appeared to have no understanding of logic
- All of the above
SemiAccurate doesn’t claim to be Patent Experts, Legal Experts, Historical Experts, or Constitutional Experts. We can, however, read and we do know a bit about logic. Tie that together with some knowledge of each of the above fields, and while we may not know everything, we know something, and we are SemiAccurate.
To understand the current state of the Intellectual Property System in the United States, it is necessary to understand the forces that caused the formation of the country.
The British Empire, like all empires, was a commercial concern. The primary concern of the British Empire was the enrichment of the homeland, or more specifically the upper class in the homeland. To ensure this, certain laws were promulgated by the British Parliament (while King George III gets the popular blame, as a Constitutional Monarch he had little control over the daily operation of government). These laws prevented British colonies from taking certain actions, like setting up local factories. The effect was to require that raw materials produced in the Thirteen Colonies had to be shipped to England, made into manufactured goods, and shipped back.
This put tremendous pressure on the evolving upper class in the Thirteen Colonies. Men like George Washington found themselves perpetually in debt to British bankers. These debts would not have been incurred if they could have set up their own factories, and made the goods locally.
To add insult to injury, every transaction was taxed. Not only were the British merchants granted a monopoly on the manufacture of many goods, these goods were taxed on export from Britain. Inhabitants of the British Isles saw nothing wrong with this. It meant that their taxes were lower, and after all, those taxes went to pay for the British warships which patrolled the seas. The colonies should pay for their own protection.
Eventually this milking of the Thirteen Colonies reached a point where a majority of the Colonial upper class agreed on a revolt and the American Revolution began. The Americans almost lost the revolution because of their lack of manufacturing facilities. Without the importation of large numbers of Charleyville muskets from France, the revolution would probably have failed.
The Formation of a New Nation
At the end of the American Revolutionary War, the Continental Congress was skeptical of monopolies. They had been on the losing end of a monopoly, and many of them were against having any monopolies in any shape or form.
Consider Thomas Jefferson, Third President of the United States, Principle Author of the Declaration of Independence, Wartime Governor of Virginia, First United States Secretary of State, United States Ambassador to France, Delegate from Virginia to the Congress of the Confederation, Second Governor of Virginia, Delegate from Virgina to the Second Continental Congress, Planter, Lawyer, Teacher, Writer, and all around busy guy. Thomas Jefferson was very skeptical of what we now call ‘Intellectual Property’, and it is recorded in his writings.
In a letter to Isaac McPherson dated August 13, 1813, Jefferson wrote:
“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.”
In a letter to James Madison Jr. dated July 13, 1788 (this was written while Jefferson was Ambassador to France before the Constitution was fully Ratified and during the drafting of the Bill of Rights):
“I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want re-touching. What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modification of these suited to the habits of all the states. But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in time of peace, and monopolies, in all cases, than not to do it in any… The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.“
Madison’s response dated October 17, 1788 shows some skepticism. He classes monopolies as among the ‘greatest nuisances of government, here’s an excerpt:
“With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.”
James Madison Jr., like Washington and Jefferson was upper class. A busy man, he held the positions of Fourth President of the United States, Fifth Secretary of State, Member of the House of Representatives for Virginia’s 15th District, and was a lawyer by trade. As President he lead the United States into its first war of aggression, when he tried to conquer Canada. He had to flee Washington in ignominy when a British Naval force landed marines and sacked the capitol.
None of the men involved in drafting the documents which form the basis of United States Patent Law were average people, though one, Jefferson, was an inventor, and held several patents. Think of what American Patent Law would look like it it had have been drawn up by a team of George W. Bush, , Dick Cheney, Barack Obama, and Joe Biden.
This is what both Oracle and Google are facing. And it’s not just them. Any company doing business in the United States has to factor the dysfunctional American Patent System into it’s operational planning.
To be continued…S|A