Shabbat Parashat Noach | 5767

P’ninat Mishpat

An Invention that Stems from an Invention

(based on Halacha Psuka, vol. 16 - A Condensation of a Psak by the Beit Din of the Rabbinate of Yerushalayim)

Case: The plaintiff (=pl) patented an invention, which the defendant (=def) used with an agreement that he would pay 2% of his sales to pl. As time went on, def improved the technology of the original patent and stopped paying the royalty, which pl still demands. Def claims that the new product is not based on pl’s patent.

Ruling: [The dayanim do not bring the normal sources regarding intellectual property rights but a novel one. It is not clear if they mean this is the only source on the matter or if they only feel it delineates the concept’s parameters. In any case, the idea is a chiddush with which one can argue.]

The gemara (Bava Kamma 49b) relates the following analysis of the laws of damages involving a pit. Rabba says that everyone agrees that if one digs a pit in the public domain, he must pay damages that result. The source is the pasuk, “If one opens a pit or digs a pit… the owner of the pit must pay…” If one is obligated for uncovering an existing pit, obviously he is obligated when he dug one. Rather it teaches that it comes to him by means of opening and digging. Since the Torah calls the one who created the pit its owner, although no classical property ownership applies, we see that one who creates something new is called its owner.

The gemara (ibid. 51a) continues to discuss one who digs a pit which is deep enough only to cause damages and another deepens it so that it can kill. Rabbanan say that the latter is responsible for death and damages; Rebbi holds that he is responsible for death, but the two share responsibility for damages. It comes out from Rabbanan’s opinion (accepted as halacha- Rama, CM 410:15) that one who completes the creation in a significant manner becomes the finished product’s “owner.” The gemara continues with an unanswered question. Does one who raised the floor of a pit (making it less dangerous) and then removed what he did become responsible when he returned it to its previous level of danger, according to Rabbanan’s approach. The Yam Shel Shlomo explains that the one who created a more dangerous pit returned it to its previous status. The question then is whether one who adds on removes the first one’s involvement or if he retains a part, so that when things are returned, the first one is once again involved.

To apply the concepts to our case, it is an unsolved question whether when a second person extends an old idea to new applications, the original patent owner maintains rights. In this case, pl has not been able to demonstrate that def is using his ideas in their original form. Even if pl can prove that the new ideas contain elements of his old ones, he cannot extract payment based on his part in the new product because of the unsolved doubt whether his original rights, which were upgraded, continue.

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