The Pirate Party

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. A.J. Sutter says:

    What does it mean to “develop” or “commercialize” a patent, and what is a “dormant” patent? This terminology might make some sense if a patent were an affirmative right, but it’s not — it’s only an exclusionary right.

    Suppose someone buys an exclusive license under patent ’00X, but never produces any product that would otherwise infringe ’00X’s claims. Maybe you could argue that the licensor has “commercialized” the patent. But you could also object to this usage, given that there isn’t any product on the market that would otherwise infringe the patent. Moreover, if we do call this “commercialization,” we thereby bless a lot of troll behavior.

    Now suppose a company obtains patents ’00X and ’00Y, both claiming semiconductor wafer susceptors with internal heaters, but each claiming a different technique for shielding the heater from RF noise. Such shielding is beneficial for depositing reliable thin films in a plasma enhanced chemical vapor deposition (PECVD) process, which is one of the basic manufacturing processes used to make the zillions of microchips you rely on daily. The company actually does sell susceptors, both as components of PECVD chambers and as spare parts, that are within the claims of ’00X. It doesn’t sell any products that are within, or having components that are within, the claims of ’00Y.

    In this second hypo, is ’00Y “dormant,” or is it “commercialized”? I couldn’t say. But does it have commercial value to the company? Probably, and the company sure thinks so, because it prevents competitors from selling a design-around product that could compete with a product the company actually is selling. This kind of patenting strategy is part of the basic nuts and bolts of industry. How would your discriminate, for purpose of your higher maintenance fees?

    Finally, if you really do want to stick to a narrow definition of “commercialization” and “[non-]dormancy” that the patentee or exclusive licensor actually be marketing a product that falls within the patent’s claims, query whether this might inspire lawsuits for the purpose of showing that a patentee’s product doesn’t fall within the claims of the patent at issue. But this potential problem is speculative, whereas the others I’ve mentioned are from real-life.

  2. It’s very interesting to see the Pirate Party movement viewed from the perspective of a Professor specializing in Intellectual Property law. When talking to the general public (in my role as the leader of the British Pirate Party), I find that the need for some sort of patent law reform to deal with ‘patent trolls’ is actually quite a tough idea to get across, while the argument in favor of radical copyright reform is far from being a non-starter, it’s actually the key issue that the public almost universally understands and agrees with.

  3. Gerard Magliocca says:

    Hi Andrew,

    That makes sense to me. The difference, I think, is that the elites and interest groups concerned with copyright are very much against your idea. In patent, opinions are more divided.

    Good luck! It’s nice to know that the blog has a global reach.