Patents are not property

It seems obvious to me that monopoly rights to a writing or discovery are not property rights.

Microsoft's Jason Matusow is proud to note that Microsoft corporate attorney David Rudin (also part of the company's Corporate Standards Strategy Team) has joined the blogosphere, and points to his first post, about the company's Open Specification Promise.

While the OSP is welcome, maybe Rudin should have stayed offline. (Rant alert.)

First Rudin  describes the controversial RAND (Reasonable And Non-Discriminatory) licensing schemes that some proprietary firms have been trying to force into the Internet standards, in order to make it a permanent toll road, as a universally-accepted concept. I think that's pulling a fast one, but I'll let it pass.

Then he delivers this:

To put it another way, a patent is a property right and, like other property rights, the owner can exclude other people using it. 

I don't think so.  A patent is not a property right. It's not a car or a piece of land. Let's go back to the source, shall we, Article I Section 8 of the U.S. Constitution. This is where the powers of Congress are enumerated. It's a fairly lengthy list. But here is the relevant clause:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

What the Founders were describing, it seems to me, was not the granting of a property right, but of a monopoly. A patent holder has a monopoly over the use of their patented invention for limited times. They have an obligation to publish the patent. Others can read it, and make a better mousetrap, using that application. You can't do that with a house.

It's true that, in the case of copyright, the Congress has made limited virtually unlimited, in regards to time. Disney's cartoon Steamboat Willie, for instance, is now protected through 2022, and I'm certain Disney would be interested in a further extension. But copyright is still limited by fair use. You don't have fair use to my backyard.

I am not a lawyer, but it seems obvious to me that monopoly rights to a writing or discovery are not property rights. And it seems to me that anyone who says so is selling something. In Rudin's case, he's selling the idea that RAND is a universally-accepted concept, and that Microsoft was making a grand exception to RAND in making its specifications patent-free.

That seems wrong in fact. While OSP is great, this is no free lunch. Microsoft was seeking to get its Internet technologies, which are built into Vista, the  next version of Windows, made into Internet standards. The RAND controversy was an impediment to that effort. So Microsoft made a business decision. It didn't give up its property. It sacrificed its monopoly. In hopes of getting something of value in return.

Oh, and to lawyers who choose to comment below, you're off the clock while you're doing so. Two can play the magnanimous gesture game.