Some strong as well as weak or poor patents stand to be erroneously rejected or struck down due to inevitable error costs associated with patent application reviews and with judicial review of litigated patents. Three main justifications offered for intellectual property rights (IPRs) are: reward for labour (John Locke), personality-based (GWF Hegel) and incentive-oriented (Jeremy Bentham/Utilitarian) theories. the number of persons to whom it extends or (in other words) who are affected by it. That understanding subsequently was embodied and confirmed in opinions by the courts, commentaries by leading constitutional scholars, and legislative actions by the Congress and various Presidents during the early Republic and Antebellum periods. What I learned from all this was that probation is no mere slap on the wrist. Mahalingam, Indira, Communication without Language - A Framework (1983) PhD thesis (Exeter University) where I discuss the possibility of ascribing beliefs and intentions to languageless creatures. A number of international organisations like World Health Organisation, Food and Agriculture Organisation, International Maritime Organisation are engaged in drawing up legislations protecting the environment which are to have global effect. This becomes complicated in cases such as incarceration where, because of issues related to reintegrating into society with a criminal record, the pain that results from punishment lasts longer than the duration of the prison sentence. Three professors from Harvard Business School and New York University recently reported empirical research, based on extensive Patent Office data, supporting the proposition that patenting stimulates innovation and job growth by startup companies: Noted patent law professor Jay Kesan has summarized the latest economic thinking on the benefits of the patent system in a recent article: Public officials, courts, and commentators who question the value of strong patents have failed to address this compelling research adequately. Jeremy Benthams System of Measuring Pain and Pleasure, As written in Bentham, Jeremy. Saving the environment does utilitarianism provide https://doi.org/10.1111/j.1748-121X.1992.tb00459.x, Get access to the full version of this content by using one of the access options below. The burglar used to become agitated every time he was due to see his probation officer, for fear he would end up having to serve his full sentence. Some say the state should decide on the legality of an abortion, some politicians say the federal government should decide . Utilitarian justification. Utilitarian View On Abortion. Consistent with this observation, May and Cooper view the Constitutions explicit singling out of IP rights as emphasizing their importance, not denigrating them in comparison with other property rights: In sum, both traditional forms of property and categories of property in its particular application, such as IP rights, qualify as natural rights. [30] See May & Cooper, supra note 5, at 137138. Supporters of robust IP rights can therefore claim the force of history and constitutional political philosophy, while critics fail in their claims that IP rights are special privileges that should be deemed second-class property rights (if they qualify as rights at all). Before coming to UNH, Smith, who holds a JD and PhD, worked as a litigator for a private law firm and as a judicial clerk for the Honorable R.L. Nygaard of the United States Court of Appeals for the Third Circuit. While the utilitarian justification for a moral obligation to be vaccinated applies to anyone (except those for whom vaccination would involve high risks), it is particularly compelling for people who are more likely to be exposed to infectious diseases and to infect others, such as health workers. [26] Randolph May & Seth Cooper, Reaffirming the Foundations of IP Rights: Copyright and Patent in the Antebellum Era, 9 Perspectives from FSF Scholars (2014), available at http://www.insideronline.org/reader.php?id=LKBj. Descartes, Rene, Discourse on Method (1960) Harmondsworth: Penguin, pp 8081.Google Scholar. As the authors explain: This particular application or narrower understanding of property was likewise rooted in natural right, but it also depended on civil society: Laws established by governments expanded the scope of protected property and reflected social and technological progress. Jeremy Bentham designed the utility calculus as a mechanism to apply utilitarian values to government policies; however, I discovered that the utility calculus is incredibly complex and relative. The reason for their misery consisted mostly in the fact that they had to take periodic drug tests, and having to be clean for five years or so was more than they could stand. What objections can be raised against this approach? Trade Commn, Antitrust Guidelines for the Licensing of Intellectual Property (1995), http://www.justice.gov/atr/public/guidelines/0558.htm. After rehabilitation, the individual would be in an improved physical and mental state; therefore, the temptation to use the illicit drug would be reduced and the happiness of the offender would increase. [23] Amy Landers, Understanding Patent Law, 2 LEXIS New Providence 1 (2012). [52] The empirical and law and economics research summarized below is discussed and cited in Abbott, supra note 39, at 810. Utilitarian Justification are those that assign value to the environment as a function of its economic or survival benefits for humans Ecological Justifications Emphasize the value of community life support functions over direct individual benefits based on self interest Aesthetic Justifications based on human appreciation of natural beauty A tabledepicting how I organized the different aspects of a hypothetical utilitarian punishment for minimal amounts of substance abuse. [44] See To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, Fed. This empirical work is in accord with recent theoretical law and economics analyses that explain why the patent system functions as an engine of economic growth and innovation. To provide a mechanism for utilitarianism to be applied to governmental policy, Benthem created the utility calculus. The report asserts that John Locke, for example, was one of the most influential philosophers on the Framers of the U.S. Constitution. It then points to various sources backing this claim. [41] U.S. Dept of Justice & Fed. Bentham, Jeremy in Bowring, John, Works of Jeremy Bentham, vol IV. [7] Locke viewed property as a broad referral to the exclusive rights that individuals hold in their own selves and their own labor. The financial cost of education typically is not extravagant and does not outweigh the long-term positives and happiness that education produces. It is summed up in the principle that the punishment should fit the crime. When we apply this basic moral philosophy into the case of punishment, the utilitarian justification fails to respect human dignity. The Supreme Court has constrained the scope of patent protection in recent decisions; Some economists have decried the quality of patents that are issued, suggesting that additional devaluation of patents might be appropriate; Federal enforcement agencies have begun to use antitrust law in an attempt to limit returns to patents that cover key standardized technologies; Various copyright critics have denigrated statutory copyright protection as a form of economically wasteful special privilege that should be curbed or even eliminated. Utilitarian Justification: Sees some aspect of the environment as valuable because it benefits individuals economically or is directly necessary to human survival. The right to use ones faculties to acquire property is a personal right, and the right to the actual productions of ones labor is a property right in the narrow understanding of the term. At least as far as society on the outside is concerned, the criminal cannot offend while locked up, and that is a good thing. [25] Gayler v. Wilder, 51 U.S. (10 How.) A Fairness Justification of Utilitarianism. [19] See May & Cooper, supra note 5, at 100. Shapiro and Lemley stressed that the scope and validity of patent rights (most of which are not litigated) are uncertain; that patents are merely contingent property rights; and that weak patents can command unjustified premiums. When the criminal is punished, other people may learn that crime does not pay from his example. This is easier to see in the case of more than it is in the case of less. [43] See generally Mark A. Lemley & Carl Shapiro, Probabilistic Patents, 19 J. Econ Persp. Google Scholar. , which are essentially the same thing, both having a notion that the consequence of the act is the most important . In other words, Federalist No. The other two principal forms of intellectual property, trademarks and trade secrets, are the subject of federal legislation pursuant to the Commerce Clause of the U.S. Constitution,[3] as well as protections in state law. I came to the conclusion that implementing utilitarian values within the US justice system, rather than applying the utility calculus or utilitarian standard sentencing guidelines, would have the most beneficial effect. The torturer's most potent threat to the captive and isolated subject may be that the torturer can do whatever he wills to the captive and there is no one to restrain him and no one to act as an advocate for the captive. Trade Commn, Antitrust Guidelines for the Licensing of Intellectual Property, file:///C:/Users/abbotta/Downloads/Against%20Intellectual%20Property_2%20(1).pdf, https://www.princeton.edu/~ota/disk2/1986/8610/8610.PDF, http://www.heritage.org/initiatives/first-principles/primary-sources/madison-on-property, http://press-pubs.uchicago.edu/founders/documents/a1_8_8s7.html, http://scholarship.law.berkeley.edu/facpubs/64, http://www.presidency.ucsb.edu/ws/?pid=29431, http://www.insideronline.org/reader.php?id=LKBj, http://www.abrahamlincolnonline.org/lincoln/speeches/discoveries.htm, http://www.ipwatchdog.com/2016/02/09/patent-reform-at-all-costs/id=65918/, http://www.americanbar.org/content/dam/aba/publishing/antitrust_source/oct14_abbott_10_21f.authcheckdam.pdf, http://mercatus.org/intellectualprivilege/Intellectual-Privilege.html#.VmXIyLgrK70, http://www.justice.gov/atr/public/guidelines/0558.htm, https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm, https://www.ftc.gov/sites/default/files/documents/reports/promote-innovation-proper-balance-competition-and-patent-law-and-policy/innovationrpt.pdf, https://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf, http://patentlyo.com/patent/2015/06/america-invents-trillion.html, https://www.ftc.gov/sites/default/files/documents/public_statements/ftc-v.actavis-future-reverse-payment-cases/130926actavis.pdf, http://www.ipwatchdog.com/2015/07/30/obama-administration-seek-amendments-to-innovation-act/id=60017/, http://www.ipwatchdog.com/2014/02/26/obama-on-patents-the-one-sided-uspto-patent-litigation-beta/id=48273/, http://www.esa.doc.gov/sites/default/files/ipandtheuseconomyindustriesinfocus.pdf, http://www.law.northwestern.edu/research-faculty/searlecenter/events/roundtable/documents/Spulber_Patents_and_the_Market_for_Inventions.pdf, http://jcle.oxfordjournals.org/content/early/2015/03/19/joclec.nhv006, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2704028, http://www.uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright, http://www.encyclopedia.com/topic/International_Copyright.aspx, http://www.copyright.gov/circs/circ38a.pdf, http://www.newmediarights.org/business_models/artist/what_are_major_criticisms_copyright_laws_us, https://www.aei.org/wp-content/uploads/2015/10/Can-economic-and-historical-analyses-end-copyright-laws-property-monopoly-disputes.pdf, http://cagw.org/sites/default/files/pdf/Intellectual%20Property-Making%20It%20Personal_web1.pdf. Second, utilitarians believe that the good is additive. He has been at UNH since 2002. utilitarian justification. Critical scrutiny has focused on the federal patent and copyright systems, which are authorized by the Patent and Copyright Clause (IP Clause) of the U.S. The full-scale elimination of the U.S. copyright system appears, at least for the foreseeable future, to be unrealistic for various reasons, including: Nevertheless, it is possible that over time, the proliferation of academic and popular critiques of existing U.S. copyright law[62] may lead to the gradual weakening of American copyright protection, consistent with the recent tendency of some policymakers to undermine patent rights. The fact that IP rights are defined through a specific constitutional provision and positive statutory law does not make them any less worthy of protection than more traditional forms of tangible property are. [16] The Federalist No. A lock ( [40] See generally Tom W. Bell, Intellectual Privilege (2014), http://mercatus.org/intellectualprivilege/Intellectual-Privilege.html#.VmXIyLgrK70. [5] Such an examination reveals that the claims of individuals to their IP were not deemed by the Framers to be a special privilege conveyed by government; rather, they were considered fundamental natural property rights, akin to better-known rights in tangible property. for this article. The ethic and reward theory promotes the ethical and moral aspect of intellectual property rights. CrossRefGoogle Scholar for a fuller discussion of parochial happiness and universal happiness. Though not fully articulated until the 19 th century, proto-utilitarian positions can be discerned throughout the history of ethical theory. . 32 references, Territories Financial Support Center (TFSC), Tribal Financial Management Center (TFMC). When the utilitarian and retributive principles lead us to the same conclusion, that is a most felicitous circumstance; for the fact is that no one can be absolutely certain as to what punishment will be most beneficial to society, and even if we believe in free will, it is hard to say sometimes just what a person deserves. In particular, the rapid proliferation in recent decades of for-profit digital goods, including software, DVDs, E-books, video games, and Internet-enabled entertainment services such as iTunes and Netflix, demonstrates that intangible information-based products can be marketed successfully through for-profit contractual transactions in the marketplace, much as tangible goods and services are marketed. The popular notion that U.S. IP rights, especially patents and copyrights, are special privileges that merit less protection than more traditional property rights, both on constitutionalist grounds and on pragmatic economic policy grounds, is deeply flawed. But the paring back of patent rights spurred by a fashionable bad patents philosophy does more than threaten to have significant negative side effects: It flies in the face of a large and growing economic literature that highlights the economic benefits of patents. To learn from ones mistakes is good; to learn from the mistakes of others is better. A discussion on punishment in a recent diary started me thinking about the subject in general, and as some remarks I wanted to make became too unwieldy for the comment section, I decided to express my thoughts here. Thing, both having a notion that the consequence of the most philosophers! 25 ] Gayler v. Wilder, 51 U.S. ( 10 How. Management. Benthem created the utility calculus ones mistakes is good ; to learn from ones mistakes is good ; to from! His example Scholar for a fuller discussion of parochial happiness and universal happiness Law, 2 New. 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