‘the reason we have a patent system in the first place is to encourage research and development…’


‘It’s worth taking a step back and remembering that the reason we have a patent system in the first place is to encourage research and development, which are fixed-cost-intensive propositions. If you don’t have a patent system in place, no one’s going to publish their research, and no one’s going to invest those R&D dollars, because they can’t get a reasonable return and everybody could free-ride off of their efforts by reverse engineering their product and figuring out what path they chose to get to the most efficient solution.’

Why can’t the courts and Congress figure this out? No doubt it is true, but perhaps more profoundly and fundamentally it comes down to basic property rights. As James Madison wrote in Federalist No. 43 regarding constitutionally recognized rights of inventors and that portion of the Constitution as proposed, “The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals.”

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