Evolution of industrial property as an ideological concept

In the EVOLUTION of Industrial Property, there are Theories that have influenced the shaping of this concept, especially in the ideological sphere.

Theory of natural property law

Summary:

Among these THEORIES or APPROACHES, the following four stand out with greater singularity:

I. Theory of Natural Property Law

II. Theory of Remuneration for Services Provided

III. Secret Disclosure Theory

IV. Incentive Theory of Invention

“A man has a natural right to property over his ideas. The appropriation by others should be considered as theft. Society is morally obligated to recognize this property right. Property is essentially exclusive, therefore, an exclusive privilege is the only appropriate way in which society can recognize this particular right ”.

"Property is always linked to objects, things (natural or created by human work)

that make up its material content."

However,

things alone do

not form property.

They can

only exist

where people enter into

certain reciprocal relationships,

where a society exists, it

is a relationship between people

with respect to things,

and not the relationship of an individual

with respect to things.

(Scientific Communism Dictionary. Editorial Progreso. Moscow. 1981. PROPERTY. Pag. 308)

Introduction:

In the EVOLUTION of Industrial Property, there are Theories that have influenced the shaping of this concept, especially in the ideological sphere.

Among these THEORIES or APPROACHES, the following four stand out with greater singularity:

V. Theory of Natural Property Law

VI. Theory of Remuneration for Services Provided

VII. Theory of Disclosure of Secrets

VIII. Incentive Theory of Invention

Each of these THEORIES at the time had defenders, detractors and personalities, who from their position, valued and enriched them, bequeathing to us what our own laws make up.

Developing:

I.- Teaching theoretical foundation

The Theory of Natural Property Law establishes that:

The defenders of this Theory, use the following as foundations:

• There can be no discussion about the international recognition of this right.

• As each country is part of the community or society of countries, it is morally obliged to recognize that right, regardless of the country in which it originated.

• An international agreement is simply the means of recognizing this right in a higher law than that of man.

The detractors of this Natural Property Right argued that:

• Since an individual is freely inspired by the ideas of others, past and present, he cannot claim exclusive rights to "his idea" unless he first returns all that he owes to others, which is obviously impossible.

• It is common for the same idea to be independently generated in different minds, so it cannot be maintained that it is the property of one of them and not of the others.

• In order for something to be subject to property rights, it must be able to be exclusively owned by its owner. However, once man shares his ideas he can no longer control them, it becomes common property and it is impossible to return them to the "original owner"

• If the grant of patents is justified on the basis of “natural property”, there is no logical or moral justification to limit it in time and space

Consequently, patents would be granted in "perpetuity" for the individual, his heirs and concessionaires, a result that is clearly unacceptable for society.

II.- valuation

II. 1.- Analysis of Theories. Methodological foundation of the analysis.

Any assessment made to THEORIES, Approaches, Philosophical Texts, etc., must have an analysis from various planes or points of view, to determine its nature and its general and particular characteristics.

Throughout the history of philosophy, the comment of THEORIES has been of extraordinary importance. Many of the great problems and schools of thought have arisen from the relationship that commentators established with the great texts of the history of thought. Already in classical antiquity, important schools of thinkers structured some of their most personal contributions around the comments of the great texts of Plato and Aristotle. And in the Middle Ages, the tradition of the great scholasticism cannot be understood without that peculiar activity that consists in valuing the texts of the great classics. A large part of the philosophy of Saint Thomas Aquinas can be considered as a great original comment on certain approaches of Aristotle.And medieval scholastic philosophy took text commenting techniques to levels of great importance.

II.2.- Background

PROPERTY as a concept has been valued by a considerable number of personalities, in all spheres of knowledge, based on the fact that this concept, that of PROPERTY and its interpretation, is specifically the one that defines the essential characteristic of the Social Economic Training in question., establishes its projection, its characteristics, its essence, its differences, etc.

For example, the French Revolution, a social and political process that occurred in France between 1789 and 1799, the main consequences of which were the overthrow of Louis XVI, belonging to the Royal House of Bourbons, the abolition of the monarchy in France and the proclamation of the I Republic, with which the Old Regime in this country could be ended.

Although the causes that generated the Revolution were diverse and complex, these are some of the most influential:

• the inability of the ruling classes -nobility, clergy and bourgeoisie- to face the problems of the State,

• the indecision of the monarchy,

• excessive taxes on the peasantry,

• impoverishment of workers,

• intellectual turmoil encouraged by the Age of Enlightenment,

• the example of the American War of Independence.

Current theories tend to minimize the relevance of the class struggle and to highlight the political, cultural and ideological factors that intervened in the origin and development of this event.

A direct consequence of this Revolution was the abolition of the absolute monarchy in France. Also, this process ended the privileges of the aristocracy and the clergy. Easement, feudal rights and tithes were eliminated; the properties were broken up and the principle of equitable distribution was introduced in the payment of taxes. Thanks to the redistribution of wealth and land ownership, France became the European country with the highest proportion of small independent owners. Other of the social and economic transformations initiated during this period were the abolition of the prison sentence for debts, the introduction of the metric system and the abolition of the prevailing character of birthright in the inheritance of territorial property.

Another element to consider when evaluating PROPERTY is the INDUSTRIAL REVOLUTION, which constitutes a process of evolution that leads to a society from a traditional agricultural economy to one characterized by mechanized production processes to manufacture goods on a large scale. This process occurs at different times depending on each country. For historians, the term Industrial Revolution is used exclusively to comment on the changes that have occurred in England since the late eighteenth century; to refer to their expansion into other countries, they refer to their industrialization or industrial development.

Some authors, to refer to capitalist development in the last third of the 20th century, with new business organizations (trusts, holding companies, cartels), new energy sources (electricity, oil) and new financing systems, speak of the Second Industrial Revolution.

Greater specialization and the application of capital goods to industrial production created new social classes depending on who contracted and owned the means of production. The individuals who owned the means of production in which they invested their own capital were called entrepreneurs. When they invest capital in a company without directly participating in it, they are called capitalists.

II.3 - PROPERTY as a concept.

II.3.1.- EVOLUTION

What is property ?, It is the most popular and widespread work of the French theorist Pierre Joseph Proudhon, published in Paris in 1840 by way of memory (in fact it is sometimes known as the First memory on property) with the title of Qu ' est-ce that propriété? and that it was one of the contributions of this author, for which he is considered the Father of Anarchism.

Its objective was to denounce the social abuses produced by the concentration of economic power, which had their reason for being in the unjust existence of property. Proudhon affirmed in that pamphlet: “I maintain that neither work, nor occupation, nor the law can generate property; that this is a causeless effect ”, to later conclude with the famous and lapidary phrase:“ Property is theft ”. In later works, the French thinker clarified that his devastating attack on the existence of property referred to that which does not come from his own work.

Despite being generally embedded among the founders of anarchist ideology, Proudhon has been valued by some theorists in the history of thought, as an essential antecedent of the German philosopher Karl Marx, who, in turn, stated that What is property ? it was "the scientific manifesto of the French proletariat". However, the greatest Proudhonist influence was felt in the work of the Russian anarchist thinker Mikhail Bakunin and in that of his followers.

PROPERTY (RIGHT), right to enjoy and dispose of a property, without other limitations than those established by law.

Property is the real right par excellence and implies a direct and immediate power over things. It is enforceable vis-à-vis all, the remaining rights in rem being rights over the property of others, constituted on the basis of one of the powers that, in principle belonging to the domain, separates from it at a given moment.

Property has even been understood as a paradigm of subjective law, the quintessential legal power; specifically and generally made up of a unitary set of powers, whose exercise and defense are left to the discretion of the holder.

Classical authors characterized the domain underlining the following attributes:

• ius utendi, or right to use the thing;

• ius fruendi or the right to receive their income and fruits, if the thing on which the domain is based is fruitful;

• ius abutendi, or the right to dispose of the thing - keep it, donate it, destroy it or even abandon it, if necessary;

• and lastly, ius vindicandi, or the power to claim ownership of the thing, along with its possession, provided that it had been unfairly taken from its rightful owner.

The importance of property is recognized in the constitutional texts themselves, which usually establish as fundamental the right to private property (also that of the means of production), which does not prevent the country's wealth from being subordinated, sometimes its different forms and whatever its ownership- to the general interest.

On the other hand, the constitutional texts themselves introduce the concept of social function as a palliative or moralizing and governing criterion of the use and enjoyment of property. However, do not forget that, as a fundamental right, it binds all public powers, and in any case it is necessary to respect their essential content, which is not at odds with the possibility that specific assets or rights may be subject to forced expropriation, even when no one can be deprived of their property except by a competent authority and just cause of public utility, after the corresponding compensation.

The object of the property is material things susceptible to possession and, in certain cases, certain intangible assets. The owner of a land, in an affirmation of yesteryear, is "to the stars and to hell"; at present it is understood that the objective extension of the domain is limited by the point to which it reaches the possibility of use and the reasonable and deserving interest of the owner.

Considering all the aforementioned elements, and in accordance with current doctrine, the characteristics that characterize the property present it as unitary and univocal, which does not prevent it from being considered as opposed to the possibility of adjudicating plural and different uses and contents.

Likewise, it is important to underline the perpetual nature of the property, in contrast to transitory real rights, such as use, habitation or usufruct. This conception highlights that the property of the good depends on its existence: property lasts as long as the thing lasts.

Other characterizing elements of property are the power of exclusion, the indeterminacy of means to enjoy the thing ("protected possibilities of action in the legal order") and autonomy vis-à-vis the State.

With the twentieth century advanced, and without questioning any of these factors, the dynamics of economic liberalism and the changes in the capitalist market have raised some nuances within this conception of property, due to unavoidable social imperatives, crises and general war conflicts, among other causes.

II.3.2.- Property limitations

Without forgetting the delimitation of the content resulting from the social function that it has to perform, it can be said that property has, like all rights, generic or institutional limits - those that prohibit the abuse of the right and its exercise in bad faith - as well as limitations derived from the law, which may fall on the powers of use or enjoyment of the owner or on those of disposal.

Property, as a right, has a series of actions whose purpose is to protect it and the repression of outrages or disturbances that may have been the object.

In the first place, the claim action that corresponds to a non-possessing owner against someone who unduly owns a certain thing appears; it is an action of condemnation and of a restorative nature.

Secondly, there is the declaratory action - intended for the defendant to recognize the domain of the author - and the refusal, aimed at obtaining the declaration of the absence of encumbrances on the thing whose domain corresponds to the actor. There are also preparatory and precautionary actions, such as the action of exhibition of movable things, the injunction of new work or that of ruinous work.

The fact that, depending on the matter on which the property rests, there are different regulations, has sometimes led to raise the disintegration of the unitary concept of property and to affirm that, rather than property, there are properties. Although the preceding statements are not shared, since it considers that there is a common and uniform nucleus of property as a category, expandable to all the objects on which such a right may concern, the existence of specific normative blocks on urban property, the property, is undeniable. agrarian, the property of houses by floors or horizontal property, the property of the waters and the mines, and the intellectual and industrial property.

II.3.3.- Legal nature of intellectual property.

There have been many theories that have addressed this issue. (The theory of intangible goods, the theory of intellectual rights, the theory of monopoly rights).

One of the most recognized is the theory of property rights.

The dominion or domain that is exercised over a property independent of the subject constitutes the axiom on which the property rests. This is present in the field of Intellectual Property.

Intellectual creations are "objects" over which this domain is exercised. They present the requirements that are considered basic to objectivity:

• individuality, (they are a reality separate from the subject);

• economic value,

• legal appropriability.

This last element marks, in turn, the different appropriation criteria existing from the very nature of the goods.

II.3.4.- The legal appropriability of intellectual property.

This requirement is manifested whenever the nature of the goods allows it, conceiving in itself the power of exclusion vis-à-vis third parties. These rights have a minus and a plus with respect to the property right.

The minus is evident in that the exclusion of third parties is not absolute in the enjoyment of the good, on the contrary, the fact that these goods are owned and enjoyed by all is a condition of their own.

The plus has an exorbitant effect, when the object of creation materializes, the person who acquires it is prohibited from doing everything that its nature allows.

II.3.5.- Property in the paris agreement

The Paris Convention for the Protection of Industrial Property of March 20, 1883, revised:

• in Brussels on December 14, 1900,

• in Washington on June 2, 1911,

• in The Hague on November 6, 1925,

• in London on June 2, 1934,

• in Lisbon on October 31, 1958,

• in Stockholm on June 14, 1967,

• amended on September 28, 1979.

It establishes in its Article 1.2 “The protection of industrial property is aimed at invention patents, utility models, industrial designs, trademarks, service marks, trade names, indications of origin or designations of origin, as well as the repression of unfair competition ”

Defining in its content as fundamental Principles:

a) National Treatment (give subjects from other Member States the same national treatment as their own subjects, art2)

b) Establishment of a minimum protection that must be respected by the laws of the Member States of the Convention.

c) Unionist or conventional priority

II.3.6.- The agreement on the aspects of intellectual property rights related to trade (TRIPS)

It is evident the reinforcement that occurs in the matter of Patents, aspects such as:

• Exclusive patent protection for all inventions (27)

• Expansion of technological sectors (exceptions 27.2 and 3)

• Rights conferred (28)

• Interpretation of what is considered exploitation (27)

• Strengthening of procedural patents: investment of the burden of proof (34)

• Minimum protection (20 years (art 33)

• Pharmaceutical and chemical products for agriculture immediate protection (70.8)

The above aspects are regulated in this legal body, where it is also required that national laws establish compliance procedures that allow the application of effective measures against any infringing action of Intellectual Property Law.

In the forms of protection that TRIPs regulates, through its article 27, it is established that "patents may be obtained for all inventions"…, and our legislation then establishes two forms of protection:

1. Invention Author Certificate (74-87)

2. Invention Patent Certificate (58-73)

II.3.7.- International agreements on patents.

There are laws of which CUBA is a part, which define the Property Law, specifically in the Matter of Patents, for example:

• PCT Patent Cooperation Treaty of June 19, 1970. In force since 1978. Cuba 07/15/96.

• Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure of April 28, 1977. Cuba 1993.

• Community Patent Convention (Luxembourg Convention) of December 15, 1975. Without force.

• Munich Convention on the Grant of the European Patent of October 5, 1973. In force 1978.

• Strasbourg Agreement Concerning the International Patent Classification of March 24, 1971. Cuba 1995.

II.3.8.- The concept of natural property law at present

"… the goods are so named for the good they do,

because they have been provided by God for the benefit of all: they

are at our disposal,

serving as a material instrument to do good

in the hands of those who know how to use them."

Clement of Alexandria (ca. 150-215)

The right to property is not absolute, as rationalism claims, as nothing is absolute in the surrounding reality, as the different philosophical categories have established it since ancient times.

Almost all the authors who have investigated on Natural Law in Intellectual Property agree that, in the West, the idea of “absolute private” property begins to be legislated in “private” Roman law. But, to the one that is not absolute in any way, it justifies that nobody, not even the State with supposed altruistic ends, can violently, coercively, change the right on any property.

The changes must always be voluntary and the result of the agreement between the parties, because this makes the natural order.

(Private) property is not absolute in its right sense, that is, being the natural market, the best allocator of social resources via efficiency, it will temporarily give property to a certain person, only for as long as it is used efficiently for the purposes of society in general. The moment this person stops using it effectively (always the efficiency of the market, of the prevalence of the natural order, refers to society as a whole), the market itself will make it fail, forcing it to transfer its right to whoever it is. use correctly.

It is clear then that property has to do, precisely, with authority and efficiency, in terms of the good.

If we consider then that the STATE OF ALL THE PEOPLE (as is the case of Cuba), it is a state of the Socialist type, which expresses the will and interests of the workers, the peasants and the intellectuals, the workers. That it is one of the stages in the development of the political organization of society after overthrowing the power of the exploiters, its fundamental peculiarity is that it is not an instrument of repression of one or another class. One of the fundamental aspects of the state of all the people is the improvement of forms of popular representation in order to guarantee the participation of all citizens in the administration of society.

The forms of Property vary historically, this change of forms does not depend on the subjective desire of the people, on their will, but is ultimately determined by the level and character of the productive material forces of society. Ideologically, in the Socialist System, PROPERTY is conceived as the basis of socio-productive relations, indicative of a historically determined form of appropriation of the means of production.

Then it is understood appropriate, adequate and coherent, that our Legislation establishes that the Inventions that are recognized, after the fulfillment of certain established legal formalities, BELONG TO THE NATIONAL HERITAGE, based on the fact that this own legislation regulates aspects of singular importance such as:

• The state administrative, economic, organizational, social and mass institutions must PROMOTE, PROTECT and SUPPORT the inventive activity of the authors of Inventions and the creative work of designers.

• Inventive activity, as creative work and as an important factor in scientific-technical progress and the development of the national economy, enjoys the protection of the state.

• The rights and obligations that arise from the creation and use of Inventions concern Cuban citizens, the Bodies of the Central State Administration, Companies, Institutions and Local Bodies of People's Power.

• The State protects the rights of the authors of Inventions, both by means of the Certificate of Author of Invention (it is a certificate that is granted in the name of the author of the invention in which the paternity of the same is recognized over the object created, the exclusive rights for the exploitation of the invention that this type of certificate provides, belong to the State, its validity is unlimited and it is exempt from payments), such as through the Invention Patent Certificate (it is a certificate that is granted to the holder of the invention and that gives it exclusive rights to exploit it and in turn prevents third parties from using the patented object without their consent, is valid for 10 years from the date of filing the application and can be extended for 5 years plus.)

• The author or co-authors who obtain a patentable result within the framework of their labor obligations with an Organism of the Central State Administration, with a Company, with an Institution, with a Local Organ of Popular Power or with the effective collaboration of any Of these, only the Author's Certificate of Invention is granted. The author or co-authors who have obtained an invention outside the framework of their labor obligations and with personal resources, can choose the Invention Patent Certificate.

• The Bodies of the Central State Administration, Companies, Institutions and Local Bodies of People's Power, in which an Invention has been created, whenever it is of interest to them, must provide the author with free technical assistance for the preparation, presentation and processing of the registration application.

• An Invention is considered to be capable of being applied industrially, if it can be manufactured or used advantageously in the economy, production, science, culture, health, agriculture or defense of the country.