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Should the Patent System Be Totally Revamped? Yes, Of Course. Constitutions (and their provisions) are Like Restaurants : Here Today, Gone Tomorrow

By Andis Kaulins

Should the world patent laws be changed in their foundation? Should we stop issuing patents for methods and for software? You better believe it.

In this regard, a posting by Mike Dorf is instructive. Our fundamental laws CAN be changed:

At Dorf on Law: Constitutions and Restaurants

Mike Dorf writes:

"[I]ssues of constitutional law are never fully settled, because they are always open to the possibility of re-examination."

Is that true? And why is that important? Who says that it is desirable that an issue of constitutional law be fully settled? And if not fully settled, is the "possibility of re-examination" the actual reason for this uncertainty, or is the actual reason to be found in the adaptive purpose of constitutions - in their role as the foundations of government - and thus in their need to adjust their mandates to changing times. A good example here would be the U.S. Constitution and the constitutional extension of the right to vote to minorities and to women. Humans drive social change and man's laws merely adjust to and reflect that change.

Further, Dorf writes:

"As Tom Ginsburg et al report in a recent paper, the average lifespan of a national constitution is 17 years. Constitutions, it seems, are like restaurants: Most new ones fail."

Is there anything wrong with that argument? Is the average lifespan of constitutions really so short, or is the problem here that governments, especially in developing countries, are short-lived? Can a constitution really fail, or is the actual failure involved one of human application of constitutional dictates? Or is the failure of constitutions in fact to be traced to their failure to keep up with the times?

To what degree has the U.S. Constitution, for example, become out of date? especially on the example of its patent provision? Maybe we should strike that clause entirely as having very little relevance to the way that the economy of the modern world is or should be run.

Full post as published by LawPundit on March 01, 2010 (boomark / email).