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Is the IP system there to be used to make a social or political point?

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 – if it is used in a creative strategic manner.

Principles

The first fundamental principle is that patents provide an incentive and a reward for invention. In return for your efforts you obtain an exclusive monopoly, in a particular country for a particular period (usually up to 20 years), allowing you to exploit your invention without competition. As the patentee you can either be the sole manufacturer, importer or vendor of your invention, or you can license others to manufacture, import or sell your invention and pay you royalties according to a license agreement.

A second fundamental principle is that a patent cannot provide a monopoly over nature, science, knowledge, thoughts, literature, art, language or culture. However, it can provide a monopoly over a novel and inventive application of any these that forms an artificial state of affairs and is useful.

During the monopoly period the public can have access to your new invention only if they pay you. However, after the patent term expires or lapses the invention is free for everyone to use. Therefore, this monopoly period can be regarded as a social or political point in that it stimulates innovation for the benefit of everyone

Social or political point  – from above

There is clearly a balance to be maintained between commercial monopolies and social or political policy. Usually this balance is directed from above – by the governments defining law, and by the courts interpreting that law in line with the facts of the case to determine the effective scope of a monopoly.

There are two recent areas of discussions that are relevant to the social or political aspects of the IP system. These are:

The courts in the US and Australia are undertaking an extensive review of the interpretation of the law in these areas. When the dust settles the governments might need to redefine the boundaries more broadly, or more narrowly, as social or political points dictate. It will be helpful for everyone if the boundaries are made clearer.

Social or political point from the ground

There is another way in which the IP system can be used to make a social or political point. This is directly from the perspective of IP applicants who wish to use their IP to try to change society.

It can actually be argued that all patents make a social or political point by providing benefits to society in the form of new or improved apparatuses, methods or systems that improve the effectiveness, efficiency, environmentally friendliness, cost or time expenditure, success rates, healthiness etc. of some aspect of our lifestyle.  The development of new technology means that society as a whole progresses every 20 years (once the maximum patent term has expired) with a new range of tools that are freely available for all to use.

Examples

However, some people try to use patents, trade marks and other IP for very specific social or political reasons. Here are some examples.

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 (eliminating the need for controls to be dictated or policed by others). I have been told that the patent was read into Hansard in the Federal Parliament as part of the discussions on creating legislation to aid problem gamblers.

The patent clearly assisted the political and social discussion on this topic and forms of the system are now being implemented.

Clearly obtaining a patent for a new warning system will not in itself create positive change. However, if properly implemented a warning system that results in the decrease of injuries or deaths in the workplace can definitely improve social morale and the life and healthiness of employees, and result in an increase in profits for businesses that use it.

A reclaim of language by obtaining a trade mark for that language might not in itself change racist behaviour – after all, a trade mark is not in itself going to stop others from using the offensive language if they are not using it as a trade mark to identify their goods. However, it can have a powerful positive impact by increasing public awareness of the effect of that language on the recipients.

For example, in a trade mark case decided on 28 December 2015 in US Court of Appeals for the 4th Circuit, the Korean band The Slants was able to trademark its name even though it was considered offensive, as the US 1st amendment on free speech prevailed. The band wanted to reclaim the offensive word as their band name because they had been the recipients of the use of these offensive words and wished to change racist behaviour.

The Judge stated:

“Courts have been slow to appreciate the expressive power of trade marks. 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 that the notoriety and advertising of the band with that name and their explanation of the use of that offensive language is.

Implementing your patent

Whether you are seeking commercial success or social change from your patent you will need to develop a mechanism to entice the relevant industry or section of the community to take up the technology.

Merely creating a new tool with your patent, trade mark or other IP is not enough to generate success – or to create positive social or political change. Your tool must be developed and implemented to be of use. (The carpenter may not see the benefit in a spanner until they realise that having a spanner on hand means they can more easily change the blade on their circular saw, and therefore improve the effectiveness and quality of their cuts.)

To determine an effective and creative strategy to protect your idea AND develop a mechanism to entice your industry or community to take up your technology, call us at Baxter IP

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Martin Earley

Director, Victoria Region Manager

Patent Attorney, Trade Mark Attorney

Baxter Patent Attorneys Pty Ltd (“Baxter IP”)

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