Friday, June 27, 2008

Rewriting the 2nd amendment as a patent claim

The Supreme Court is once again contemplating the issue of gun control laws. An interesting question is what position the patent community should take, since the issue is one of the legal construction of the Second Amendment, and patent claim drafting is an ongoing process of legal construction. A letter to the New York Times last January or December offers an interesting observation. Let's think of constitutional amendments as social business methods. How do we write a patent claim equivalent to some form of the 2nd Amendment? Suppose we want to patent extremely broad ownership of guns by the public to promote public safety. We would write a claim as broadly as possible: 1. A method of increasing security of a state by allowing any person to keep and bear at least one arm. Everyone would be allowed to own at least one gun, though as infringers they would have to pay a royalty to do so. The claim has a broad scope and minimalist language (remember each word in the body of a claim is potentially limiting of scope). Such a claim corresponds to the following amendment language: 2nd Amendment': The right of the people to keep and bear arms shall not be infringed. Much like the claim, it is a nice minimalist use of language to state a broad concept (everyone can own at least one gun), and the Founding Fathers were masters at saying as much as possible with as few words as possible (too minimal, if you were a woman or black). If the Founding Fathers wanted unlimited gun ownership, this language above is all you need, either as a patent claim or constitutional amendment. But as Times letter writer Regan McCarthy points out, the Founding Fathers could have used this minimalist language, but didn't. The actual Second Amendment has additional, limiting language: 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. which I argue corresponds to the following patent claim: 1. A method of increasing security of a state by allowing any person IN A WELL REGULATED MILITIA to keep and bear at least one arm. or 1. A method of increasing security of a state by allowing any person to keep and bear at least one arm, said person IN A WELL REGULATED MILITIA. or 1. A method of increasing security of a state with A WELL REGULATED MILITIA by allowing any person IN SAID MILITIA to keep and bear at least one arm. So the question is how do you write the Second Amendment as a patent claim, and once you do so, does the scope of the claim allow people not in militias to keep and bear arms? Much like the Times letter writer argues, I argue that the intent of the Founding Fathers was for state gun control via militia. If you try: 1. A method of increasing security of a state with A WELL REGULATED MILITIA by allowing any person to keep and bear at least one arm. as a patent claim, the MILITIA phrase is extraneous, since it doesn't connect to the claim body unless the "any person" is in the militia. Any other claim constructions to represent this Second Amendment language?