First to file patent criterion may be a disincentive to making an invention public

By Glen Wallace

The following is my response to an article in the Star Tribune about the new first-to-file provision in the patent application process:

Kalinsky states regarding the new first-to-file provision: "For the garage inventor, it changes little. He or she does what they’ve always done. You come up with an idea, you raise funds and you file for a patent."

What if the garage inventor has a hard time raising the funds for the application process but still wants to utilize his invention for a small home-based business?  Could some big corporation then reverse engineer or just copy the invention utilized in the garage inventors product?  Could the big corporation that does have the funds and expertise to file and acquire a patent on the garage inventors invention, then turn around and file a patent based on what they copied and then demand compensation from the actual inventor, the little guy, for patent infringement?  I'm not an attorney, but if the criterion is really first to file, then I don't see any reason why a corporation wouldn't be allowed within the law to sue the actual inventor in such a scenario as I describe above.  While the costs for provisional filing may be low for a large company, those costs could be considerable for the garage inventor or home based small business.  Therefore this new act just gives further advantage to those already with the bulk of wealth and further disadvantage to those already without.  I thought patent protection exists to incentivize the creation of inventions that help society.  While I question if patents have ever has been a creative incentive, I would say this first to file development if anything is a disincentive to making a beneficial invention public because unless the inventor is willing to wade through the lengthy and costly patent application process, they may prefer to keep their invention secret, depriving society of its benefits, in order to prevent some wealthier interest from stealing the idea and turning around and suing the true inventor in such a scenario I had described above.

The so-called America Invents Act that created this "first to file" rule has about as an appropriate title as the Patriot Act.  A better name would be 'America Files Act' or 'America (Patent) Trolls Act.'   This is an act that puts not inventions first put the legal machinations surrounding inventions first.  I can envision scenarios whereby individuals might come up with a new process or invention that unbeknownst to them have some value as patentable ideas.  Those individuals however, out of the goodness of their hearts, in an effort to help others, could publish a youtube video of their ideas that the inventors believe might assist others in making their lives better in some way by solving some problem they're having.  But at the same time there could be some patent troll firms searching through youtube videos with the sole goal of finding such patentable ideas made public that have not yet been filed yet with the US Patent Office.  The troll firm then does the filling, thereby being the first to file and so once the patent is granted the patent troll firm can now extort money out of the real inventors because they are infringing on first-to-file patent troll firm.

Edit to add:  It recently occurred to me a possible legal conflict regarding the first-to-file rule.  I believe I read that a copyright automatically belongs to an author even without the author ever registering their work with any U.S. government office.  So, when I think of copyrights and authors I think of writers.  But then I wondered -- why wouldn't the writing of programming code be considered authoring something that would then automatically belong to either the author of the code or the authors employer?  Well, I also understand that a great number of patents have been issued for and profited from computer processes.  Now I'm not sure if it is the process that is patented or the code but even if it is the process for which the patent is granted, it seems inevitable that for any specific computer process, wouldn't much of the wording have to stay the same in the code that was used to first create the process?  And if someone then copied that code in order to be the first to file a patent, wouldn't they then be violating the copyrights of the original author of that code.  Would a loophole exist if the first to file used a different programming language from the original code to duplicate the process?  Or would the same principles that protect a translated common language written work also apply to a 'translated' work of computer software code?  I'm assuming that even though a great deal of work is done in any ordinary common language translation that the copyright still belongs to the original author that wrote the piece in the first language it was written in.  And if we allow programming code to be legally considered works that were authored, where first to create is granted the exclusive right to copy, then to what extent could the same principle that would grant such an allowance also be generalized to include material constructions that serve some purpose be considered as created or authored and be thus granted the same copyrights to the author that created the work.  Doesn't the copyright principle that applies to authors of ordinary language works also apply to artists, including sculptors?  Now, supposing some inventor decides to label his or her work as a work of art as, say, for instance, a moving sculpture?  Does the creator of a work get to decide whether something is legally considered a work of art that is copyrighted or purely utilitarian device that is instead patentable?  If it is the author or creator that gets to decide then wouldn't they be able to prevent some patent troll firm from copying someone else's work in an effort to be first to file.  Could the author or creator then just tell the patent troll firm that the invention is really a work of art and that in copying the invention the patent troll has thereby violated the copyrights belonging to the original author/creator?  I think these are all good questions, but anyone reading this should keep in mind the fact that I'm no lawyer and I'm really unsure how such ideas as I have presented here would play out in any real court presided over by a real human judge.  

The Freedom That Communism Brings

By Glen Wallace

Perhaps I should have elaborated that some element of capitalism can be both beneficial to humanity and also exist harmoniously with a system of communism.

So the communism that I'm suggesting is not absolute but rather broadening of its implementation in this country and abroad. It would be a broadening because this country utilizes a lot of communism already. Not only does communism already exist in the USA, most people use and enjoy it, without thinking that they have become the least bit of a 'pinko commie.' What I'm referring to is the publicly owned property that nearly all of use such as sidewalks, roads, parks, bike paths, lakes, rivers and streams. Those properties are owned by the community for all to use and therefore to advocate and support the continued creation and maintenance of community owned land and infrastructure is to support communism.

Without the existence of widespread communism in this country our lives would be much more restricted and less free than they our today. Imagine a world where as soon as you walk out of your front door having to pay a toll just to walk on a sidewalk. And that's if your lucky enough for a vendor to have created the sidewalk. Maybe the owner of the property outside of your front door doesn't like pedestrians or anyone for that matter and has put 'no trespassing' signs everywhere, causing you to be a prisoner in your own home! What an awful world. But that is just the sort of world that you might face if the supporters of free enterprise capitalism had there way. But it's not the sort of world I want to live in. I love being able to stroll down the

sidewalk anytime without having to swipe my credit card at every intersection just to pass through. I love having beautiful parks, full of nature where people like myself with little money can visit and be with the towering trees that birds flutter about in. Anyone can look up property records online and see that most city parks have valuations in the millions of dollars that I'm sure some greedy capitalist would love to get there hands on to bulldoze and turn into a high-rise condo with big iron gates surrounding the property to keep out the unwashed masses like myself. I'm sure it also irks many capitalists that I can go the public library and be able to check out a book or movie without providing the least bit of revenue to some profiteer.

I think whenever someone sees the term communism, people tend to automatically assume the word is referring to the system used by the so-called communist states of the former eastern block and some Asian nations. I say so-called because they are/were pseudocommunist nations that merely paid occasional lip service to communist principles to help build what was in reality a tyrannical oligarchy that only cared about gaining power and cared nothing about the welfare of the community they were governing.

Perhaps the biggest mistake was to use Karl Marx's philosophy on the relationship between a worker's labor and the material wealth created by that labor, as a complete playbook for how to run an entire government system. I don't know if Marx ever even intended for his philosophy to be used as a complete system, but some did and in doing so, it left the door wide open to the abuse of power. And when it comes to political power, if you give an inch they take a mile - and a Marxian system gave several feet of leeway to the bureaucrats. And it's now historical record that the bureaucrats that got that leeway used it in such a horrific manner that the some of the pseudocommunist perpetrators such as Stalin and Pol Pot have become rightfully vilified as ordering some of the worst cases of mass murder not just in modern history, but in recorded history as well.

The solution then is to implement a communist system measured by libertarianism. While most people automatically consider libertarianism and communism to be mutually exclusive, close examination reveals that not to be true at all. Instead, utilitarianism; the belief that it is acceptable to sacrifice justice for a few individuals for the betterment of the society at large, is the antithesis of libertarianism.

Utilitarianism has been, and continues to be used, as a justification for restricting the freedoms of individuals, in order further the goals of both capitalist and communist systems. While many may be very familiar with the ways utilitarian principles have been used to justify communist tyranny - sending dissident writers to the gulag was justified by the belief that their authors beliefs presented an obstacle to reaching a utopian Marxists state, but few realize how often utilitarianism is used to justify restrictions on freedom because exercising that freedom is believed to result in lower revenue for certain industries. The most obvious example of this is the efforts by the music recording and motion picture industries to restrict the freedoms of individuals to copy, share and manipulate digital works as the individual sees fit in the privacy of their own home. The recording industry argues that it is ok to sacrifice the freedoms of the individual owners of copies of artistic or intellectual works, because if freedom were allowed in that case, society as a whole would lose out on future works because the creators of those works would no longer have the incentive to create because the guarantees of profit from those works would be gone. The problem with that argument is twofold. First is the mistake of prioritizing values whereby specific freedom of action is given a lower priority to vague theories about both to the benefits to society as a whole in the form of better arts and entertainment and improved profits garnered from sales that would have been lost to file sharing. Therein lies the problem with utilitarianism: some theory about the benefits to society as a whole can always be thought up to justify any given restriction on freedom and justice for individuals. And typically there isn't any demand by lawmakers that the theories about societal benefit be in anyway corroborated with evidence. Rather if the theory makes any sense at all, by the principles of utilitarianism, it is justifiable to impose any degree of draconian laws that impose tyranny on a people, if it can be successfully argued that in the long run society will be better off for it. What ends up happening though is the government or corporate official puts forth the appealing utilitarian argument for the tyrannical measures while at the same time, being motivated by entirely different, selfish reasons for implementing the measures. If utilitarianism is allowed any acceptability by society, all that is required by the ruling elite to impose a harsh draconian tyranny onto the populace, is merely a little creativity to generate a useful fiction that the people will buy.

While some may argue that the injustice faced by those that can no longer file-share pales in comparison to the injustice endured by the millions of individuals sent to Stalin's gulags, I would counter that, in a way, we already effectively have our own sort of gulag system in this country in the form of the prison industrial complex. And there are many capitalists that benefit tremendously from our prison system, that since the start of the war on drugs, this country has incarcerated millions of citizens for engaging in the non-violent act of merely possessing or selling a substance that people wanted to use out their own free will in their own bodies. Industry groups that act either as vendors for government run prisons or operate privately run prisons, have lobbied legislatures to pass laws recommending or mandating longer prison sentences for non-violent drug offenders. The utilitarian justification presented for the longer prison sentences is that society as a whole will benefit by limiting the scourge of narcotic drug intoxication but undoubtedly the real reason for desiring the longer prison sentences is that it will result in more prisoners requiring more product and therefore more profit for the prison vendors and private prisons operators. It may be a very poor justification for the grave act of taking away someones freedom and putting them in a cage for years at a time, but therin lies the problem with utilitarianism - an excuse, reason or justification that has some appeal to the public can always be found with it for implemmenting tyrannical measures. But the actual reason for measure that would be unappealing to the public, can remain hidden by the tyrants.

The solution then is to implement a communist system measured by libertarianism. While most people automatically consider libertarianism and communism to be mutually exclusive, close examination reveals that not to be true at all. Instead, utilitarianism; the belief that it is acceptable to sacrifice justice for a few individuals for the betterment of the society at large, is the antithesis of libertarianism. Utilitarianism has been, and continues to be used, as a justification for restricting the freedoms of individuals, in order further the goals of both capitalist and communist systems. While many may be very familiar with the ways utilitarian principles have been used to justify communist tyranny - dissident writers were sent to the gulag because their beliefs presented an obstacle to reaching a utopian Marxists state, but few realize how often utilitarianism is used to justify restrictions on freedom because exercising that freedom is believed to result in lower revenue for certain industries. The most obvious example of this is the efforts by the music recording and motion picture industries to restrict the freedoms of individuals to copy, share and manipulate digital works as the individual sees fit in the privacy of their own home. The recording industry argues that it is ok to sacrifice the freedoms of the individual owners of copies of artistic or intellectual works, because if freedom were allowed in that case, society as a whole would lose out on future works because the creators of those works would no longer have the incentive to create because the guarantees of profit from those works would be gone. Once again, no attempt by the recording industry is made to either prove that any individual that illegally copies would have instead legally bought the recording instead of just going without owning the recording at all. Nor is any attempt made to prove that people would no longer create music without the incentive of money. Rather the theory is put forth and the legislatures consider the theory, especially a theory coming from large campaign contributor, sufficient justification for restricting the freedoms of individuals handling digital works. Freedoms are something that should be held with a degree of sacredness by those who are responsibly for managing them. In a free society, it should be the freedoms that come as a first priority, and it should then be problem of business and police to find ways to deal with the requirement of citizen freedom, not the other way around as it is quickly becoming in this country. In the communist system I envision, a society is organized to allow the most freedoms possible with the understanding that there is a certain degree of necessary scarcity in the world. In any given community, there is only so much space for roads and sidewalks on the surface area within the confines of that community. I think there is a degree of unwritten understanding by individuals of that fact already and has resulted in the open widespread willingness of citizens to think there is a need for public roads and sidewalks and use and enjoy them and not think they should be converted to privately owned and operated entities with the same accompanying property rights by the owner as a homeowner has. But in a society that values capitalism and free enterprise while decrying communism so much, the properties owned and used by the public are rarely called by the communist leading term 'the peoples' as in the peoples sidewalk, or the peoples library. Instead the leading term 'public' is used even though both 'the peoples' and 'public' used in the same contexts mean basically the same thing, regardless of whether you live in a communist country or a free market capitalist one.

I would contend that Stalin and company perverted and thus gave a bad image and reputation to the term 'communism' in much the same way as the Nazi's perverted the swastika symbol. Just as the swastika is one of the oldest known symbols that were used by mankind for literally thousands of years before the rise of the third Reich, communism as a form of ordering society was used for thousands of years before the communist part was ever formed. In fact, communism is such a natural and fair way of running a community, that I believe it has been used throughout human history, recorded or not. I believe most native american societies were using a form of communism before the invasion by western Caucasians. Communism was such a common sense idea to the first nations peoples of this continent that they didn't really have a conception of land ownership like the colonists did. Rather, it was intuitively obvious to the native american peoples that the land was created for everyone to use in a responsible and respectful manner.