Blackstone on Trial

According to a recent posting on PT, Casey Luskin, a lawyer, appears to think he understands biology better than Kenneth Miller, a biologist. Other lawyers and legal scholars, most notably Phillip Johnson and Francis Beckwith, have similarly high opinions of their own analytical abilities. Indeed, Mr. Johnson claims that his profession gives him special expertise in analyzing arguments and identifying underlying assumptions.

I am a physicist, and I am considered relatively bright. I have a high opinion of my own opinions (please, no quote mining), but I figure I can learn from Mr. Luskin and his colleagues anyway. I have decided, therefore, to examine the law from the point of view of a physicist trained to make careful, nuanced arguments.

Well, not the law as a whole; even Mr. Luskin does not examine all of science. Just patent law, a branch of law that occupies me occasionally when I wear my engineer’s hat.

To begin, the law gives you two options for protecting an invention: You may declare it a trade secret, or you may file a patent. If you declare something a trade secret, you must protect it, for example, by restricting the secret to people who need to know it and by requiring those people to sign nondisclosure agreements. If, on the other hand, you decide to patent an invention, you must tell the whole world precisely how to reproduce your invention.

That’s it: All or nothing. Either a trade secret or a giveaway. Dualistic, black-and-white thinking. Surely there is a middle ground, a nuanced position, a compromise between a trade secret and a giveaway. Indeed there is: a patent should be filed in secret so you don’t have to “teach” others how to infringe your patent, and it should be for an unlimited period (forever minus a day, in the words of one of our more-enlightened representatives). If the patent is granted for only a limited time, then the government is taking your property (intellectual property but property nonetheless) and should compensate you accordingly.

In addition, when you recognize that a patent is property, you will see that patent infringement is theft and therefore should be a criminal violation, not civil.

Finally, US patents are awarded to the first to invent, rather than the first to file. Such a policy is foolish and leads to excessive paperwork and litigation. If a patent were granted to the first to file, the identity of the inventor would be clear without legal proceedings and without time-consuming compilations of notebooks. Lawyers, however, are so wedded to their dogmatic Blackstonism that we have little chance of influencing them. In addition, they have a vested interest in keeping the first-to-invent rule, because it provides employment for lawyers.

Silly? Yes. Just as silly as any lawyer who pontificates on evolution without first-hand experience in science. Or perhaps less silly, because I know I am being silly. I, at least, once consulted for a patent attorney. We won, in part because, rather than sit, carping, on the sidelines, I traveled to the client’s lab and performed an experiment. Have our lawyer friends ever actually done any science?