I would think it appropriate to stress that the damage done by Ginsburg
decision is larger than hitherto seen. The integrity of the public domain
in authorship's right shall be sought, no doubt, but the effective denial
of the same principle for patents (see footnotes 9 and 22) and revocation
of Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231 (1964) (even in
obiter) will have probably more stringent effects.
I my country (incidentally, Brazil), Sears Roebuck was being used as a
compelling argument to oppose ex post extensions of patent terms.
Extending the life of a patent beyond its expiration term was arguably
unconstitutional on many legal systems, as the right to use the teachings
of the patent at the end of monopoly term is (as the argument goes) vested
on public simultaneously as the patent owner gets its grant. The idea that
copyright and patents have different exchange terms (offered on page 24-25
of Ginsburg's opinion) is not entirely bad, but footnote 22 dismisses all
positive content to such finery. They are distinct, but have the same
result: disvesting the public from its constitutional right to free use of
creations.
My worry is equally shared between free flow of ideas and availability of
medicines to fight AIDS. Eldred has certainly a worldwide import.
Received on Fri Jan 17 2003 - 16:27:40 GMT
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