Towards an Ontology of Intellectual Property: A Suggested Reconstruction

I Introduction The history of the methods by which the legal system deals with intellectual property is one of confusion and continuous change, especially recently. Although a certain amount of this is unavoidable, a large percentage of the recent problems have been the result of an ontology into which intellectual property has been shoehorned, however inappropriately. At the time when the intellectual property ontology was set up, it worked well, but technology has moved us to the point where a complete change will be required unless we want to have a legal system continuously in flux, as technology changes become faster and faster. It turns out that such a new ontology is fairly simple to construct, and removes almost all of the problems with the extant, historically-based ontology. Yet even though this new ontology fixes most of the confusion which currently exists, it is still likely to have some flaws which will be made evident by future technologies. The hope is that this paper will not only give a better ontology for the current system, but that discussion provoked by this paper will produce an ontology of intellectual property that can survive even some of the possible future technologies. II History and Current State of Intellectual Property Law in the U.S. Currently the legal system puts almost every aspect of intellectual property into one of three categories: patents, copyrights, or trademarks. Broadly speaking, patents and copyrights deal with the protection of an idea from theft, or speaking more legalistically, the protection of the application/expression of an idea. Trademarks, on the other hand, deal with forgery/lying about the authorship of a product. The primary measure by which the adequacy of the ontological system is measured is the confusion between the different categories of the system, and it turns out that most of the recent problems with the intellectual property system have been the result of confusion between the two branches dealing with theft (i.e. copyrights and patents), and not with the distinction between theft and forgery. Thus, the remainder of this paper shall deal primarily with the ontological distinctions of copyrights vs. patents. However, before discussing the current confusion between copyrights and patents, it is first necessary to give a brief summary of the state of each category. There are currently two legal documents which define the limits of patent protection. The first is in the Constitution, where it is written that "The Congress shall have power . [t]o 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. "(1) Although the Constitution is broadly written, the second set of legal documents, the actual statutes which Congress has enacted under this constitutional authority, have been considerably more restrictive. In particular, Congress has restricted patents from general "science and useful arts" to "any new and useful process, machine, manufacture, or composition of matter,"(2) and duration is limited to 20 years (with a few explicit exceptions). At first glance it may appear that even this is more open ended than it actually is; after all, the category 'process' is a broad one. However, in practice the courts have defined 'process' to be a physical process. In Diamond v. Diehr the Supreme Court ruled that "Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines. " In similar fashion the courts have limited patents to exclude 'laws of nature', 'natural substances', and most importantly 'abstract ideas'. Also springing from the same paragraph in the Constitution, copyrights were originally intended to provide protection for artistic works. The reason for this particular distinction between patents (for utilitarian works) and copyrights (for artistic works) is historical, but not strictly based in the Constitution. …