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Workarounds

June 20, 2010

Following up on my previous post, it is interesting to consider how authors and inventors react to changing law, and what this reaction shows about the differences in the law.

Authors and inventors have responded very differently to changes in law and technology. Authors, utilizing computers, YouTube, and other means of expression often disregard copyright law in order to create and distribute derivative works. Meanwhile, inventors respond to changes in patent law (I have Bilski in mind) by subtly modifying the way they describe or claim an invention. The industries are very different, as is the way each field adapts to change.

Since creating and sharing media online has become increasingly easy, authors have been creating tremendous amounts of works, many of which are derived from other copyrighted works, particularly songs, video clips, and the like. Technically this use is copyright infringement, but the law is being disregarded and new content is flooding the internet.

Patent law, on the other hand, seems to be more easily worked around. In many cases, a modification in claim language can make an unpatentable claim patentable. For example: under the Federal Circuit’s Bilski test, a business method would need to be tied to a particular machine to be patentable. This does limit the claims, thereby making them less valuable, however the fact remains that a fairly simple solution exists to achieve patentability.

How the practices of authors and inventors adapt in response to changes in law and technology highlights the differences between the two areas of law, and the real world implications of legal change. It is important to consider these differences and implications when creating new law, particularly when anticipating how the law will promote progress in the sciences and useful arts.

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2 Comments leave one →
  1. June 21, 2010 10:12 am

    ” This does limit the claims, thereby making them less valuable, however the fact remains that a fairly simple solution exists to achieve patentability.”

    We’ll see what the supremes have to say about that today. At least we can hope it’ll be today.

  2. June 21, 2010 6:45 pm

    Not today, but maybe someday…

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