The Intellectual Property (IP) system includes patents and trademarks, copyright, design registration and other associated legal tools. But is the use of the IP system there to make a social or political point or to provide effective monopolies? I believe it can do both but must be used in a creative strategic manner.
The first fundamental principle is that patents provide an incentive and reward for invention and in return the inventor obtains an exclusive monopoly in a particular country for a particular period (usually up to 20 years) for you to be the only party to exploit your invention. This can include you, the patentee, being solely allowed manufacture import or sell or you licensing others to manufacture import or sell and pay you royalties according to a license agreement.
A second fundamental principle is that patents cannot provide a monopoly to nature or science or knowledge or thoughts or literature or art or language or culture. However it can provide a monopoly to a novel and inventive application of these that forms an artificial state of affairs and is useful.
Therefore this monopoly period is a social or political point to stimulate innovation in that the public can have access to the new invention over the monopoly period if they pay you. However after the patent term expires or lapses, the invention is free for everyone to use.
Social or political point from above
There is clearly a balancing act between monopolies and social or political policy. Usually this is directed from above by the governments defining law and the Courts interpreting that law in line with the facts of the case to determine the effective scope of monopoly.
There are two recent areas of discussions that affect social or political points. The first is the patentability of some software or business methods and the competing freedom for people to engage in business or communication. The second is the patentability of some parts of biotechnology and mere isolating of known natural material and the competing freedom of everyone’s access to nature. The Courts in the US and Australia have been undertaking extensive review of the interpretation of the law. When the dust settles the governments might need to redefine the boundaries more broadly or more narrowly as social or political points dictate. It would be good if the boundaries at least are clearer.
Social or political point from the ground
However there is another angle in which the IP system is there to make a social or political point. This is directly from the applicants of patents or trade marks or other IP who wish to use this IP to try to change society.
It can be said that all patents are there to provide a social or political point by providing an improvement in new and novel apparatuses or methods or systems that improve effectiveness, efficiency, environmentally friendliness, cost or time expenditure, success rates, healthiness etc. Further the development of this new technology means that the society as a whole progresses every 20 years with a new range of tools that are freely available for all to use – since the maximum 20 year patent term has expired.
However some people try to use patents, trade marks and other IP for very social or political points such as:
- A gambling system to help problem gamblers control and limit their spending;
- A warning system to change behaviour at a worksite to limit injuries or deaths;
- A reclaim of language that is offensive so as to change racist behaviour
- A claim of indigenous culture to ensure respect and knowledge and derivations of that culture.
I was involved over 10 years ago in patenting a gambling system which provided a smart card tool to help problem gamblers control themselves and limit their own spending. Therefore it was not dictated or policed by others. I have been told that the patent was read into Hansard in the Federal Parliament in the discussions in order to create aiding legislation for problem gamblers. The patent clearly assisted the political and social discussion and forms are now being implemented.
A warning system to change behaviour at a worksite can be an effective tool to limit injuries or deaths. However merely having a patent of the new warning system. Sales of the warning system often do not increase production or sales. However decrease of injuries or deaths can definitely improve social morale, life and healthiness and resulting increase in profits.
A reclaim of language by obtaining a trade mark for that language might not in itself change racist behaviour. A trade mark in itself is not going to stop others using the offensive language if they are not using it as a trade mark to identify their goods.
In the recent US TM case decided on 28 December 2015 in US Court of Appeals for the 4th Circuit, the band The Slants was able to trademark their name even though it was considered offensive – but US 1st amendment free speech prevailed. The band wanted to reclaim the offensive word as their Korean band name. They had been the recipients of the use of these offensive words and wished to reclaim the words to change racist behaviour.
The Judge stated:
“Courts have been slow to appreciate the expressive power of trademarks,” “Words—even a single word—can be powerful. Mr. Simon Shiao Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country…. Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities. But the First Amendment protects even hurtful speech.”
It is clear that the trade mark in itself is not undertaking the social or political work, but the notoriety and advertising of the band with that name and their explanation of the use of that offensive language.
A claim of indigenous culture to ensure respect and knowledge and derivations of that culture.
And protection of indigenous culture and deadline of 31 January 2016 for submissions to IP Australia, Trade and Policy Projects PO Box 200 Woden ACT 2606 and the submission by June 2012 Indigenous Advisory Committee.
The aim is to determine a creative strategic manner of protecting the idea AND having a mechanism to entice the relevant industry or section of the community to take up the technology
The spanner is not generally of use to a carpenter. Therefore merely creating a new tool by your patent, trade mark or other IP is not sufficient. It must be developed to be of use. The carpenter needs to be enticed to have a spanner so as to more readily change the blade on the circular saw and therefore improve effectiveness and quality of cuts.
Therefore merely having a patent is not success but there is required to be a mechanism to entice the relevant industry or section of the community to take up the technology. Clearly in the above examples it will not increase sales but by decreasing negative elements or promoting positive elements an overall positive atmosphere can occur to provide a required outcome and an increased profit. This could be by minimising deaths and injuries and financial and social losses or creation of positive venues, positive new experiences and the resulting social and/or economic profit.