Thank you for the absolutely fantastic insight. I completely agree with everything that you've written, and especially with your sentiments concerning rash decisions in reforming patent law. Patent law is an enormously complex system that's inextricably linked with the conflicting interests of many stakeholders. Moreover, getting it wrong (by constricting the scope of patentable subject matter, limiting the remedies available, etc.) will cause the very conduct that the framers sought to avoid: overuse of trade secrets to safeguard inventions. Effectively, an exclusive right to exclude others from practicing an invention is the price the public pays to help the public repository of knowledge (e.g., scientific, literary, artistic) stay abreast of the private repository.

I have a problem with any suggested systemic improvement where the available protection depends on either the cost of the inventive process or its duration. The industry averages sound good in theory, but the USPTO is not equipped to investigate the truthfulness of these claims, which themselves are extraordinarily susceptible to accounting tricks and the like. I don't believe the solution stems from increased regulation. Instead, I've been considering an alternative approach that I haven't heard of before: patents should be inalienable with their rights vesting exclusively in the inventors (jointly and with right of survivorship) for the statutory period. It follows that the state would have a vested remainder in those rights and that no inventor would be able to transfer their right to another.

This idea came after reading about the philosophical and theological concept of inalienable possessions. Paul Kockelman's[1] first theoretical point on the topic concerns ontological classification: ``the gain and loss of inalienable possessions is related to the expansion and contraction of personhood.'' In other words, an individual's accumulation of inalienable possessions correlates with their personhood. Kockelman's second theoretical point asserts that inalienable possessions ontologically individuate, viz. they are uniquely identifiable with the particular individual for his life. Kockelman's final theoretical point is intimately related to classification and individuation: ``inalienable possessions historically and biographically trace.'' It follows that the inalienable possessions held by a group of people can act as a lens through which an observer may view that group's history.

Kockelman's formulation serves as a brilliant metaphor in the domain of Art. 1, Sec. 8, Cl. 8, because ``Writings and Discoveries'' are precisely the ``transcendent treasures'' that we must ``guard[] against all the exigencies that might force their loss.''[2] Overly litigious plaintiffs who amass war chests of patents constitute one such ``exigency.'' Another ``exigency'' occurs when universities strip patent rights from uncompensated students who took that one giant inventive leap. Universities justify their actions by asserting that the transfer was consideration for facility usage---an ``exigency'' that arguably constricts the affected students' personhood.

Many people question how an idea is patentable subject matter: the answer is that it's not. An invention isn't any idea: it's a process, machine, manufacture, composition of matter, or any new and useful improvement on any of them. During the inventive process, an inventor must maintain constant ``intellectual domination'' over his work, and but for a highly particular ordered set of neurophysiological reactions occurring in the prefrontal cortex (``the fugitive fermentation of an individual brain''), the idea would not have occurred at the instant it did. If the idea contemplates a novel and nonobvious invention, then it advances the humanities or sciences by that fact itself. The idea is a psychofact capable of acting as a vehicle ``for bringing past times into present'' so that the history of the inventive process elides into the inventor's identity. It logically follows that a chronology of all inventors in a society produces historically significant insight into the progress of the Arts and Sciences. By contrast, a chronology of patent assignees produces its own historically significant insight: the alarming increase in exigencies threatening the dissemination of these ``transcendental treasures:'' ideas. Accordingly, inventions are properly entitled to the appellation of inalienable possessions.

Applying Kockelman's theoretical points creates what, in my view, is a sensible reformation of intellectual property law. We can distinguish patents from other property interests by noting that patentability requires an idea to meet a series of standards that elevate it to the status of an invention. When an idea meets those standards, it becomes intertwined with the inventor's personhood---his conscious ability to frame representations about the world and act accordingly on them. The gain and loss of inventions is clearly related to the expansion and contraction of the inventor's personhood, because as he invents, the plans he formulates and actions he takes on his conscious perceptions change according to new representations based on the changed state of technological advancement.

In the end, intellectual property is different because it's inextricably linked with the property creator's personhood. Ideas are so profoundly human that it becomes unconscionable to think someone can claim ownership rights in a property interest arising out of another's invention. This solution isn't perfect, but it's one with which I would be more okay.

[1] http://www.columbia.edu/~pk2113/Article%20PDFs/Inalienable%2... at 343

[2] http://books.google.com/books?id=lNitvRLiiBUC&lpg=PA33&#...