A few decades back, the term ‘a Jewish invention’ meant one thing. If the inventor was a Jew, then it was a Jewish invention. Things have changed. Nowadays, kosherlamps®, briefcase-sized fold-up shtenders, tefillin-friendly sweaters, and a host of other ingenious (and, arguably, useful) innovations specifically created for the Jewish consumer have redefined the term. With all these new ‘Jewish inventions,’ there is more interest than ever in the often misunderstood subject of Jewish copyright, trademark, and patent law. In fact, recently, a number of excellent books and articles have been published about the subject. And while historically this area of Jewish monetary law has seen more than its fair share of knock-down, drag-out controversies, when the dust has settled, a number of basic principles and guidelines emerge.
Recently, I, myself, had what I think is a great idea for a new Jewish invention. I was in the process of purchasing a relatively expensive (at least for me it was expensive) pair of tefillin for my soon-to-be thirteen year old son. More than once the thought crossed my mind that there was a reasonable chance that this expensive pair of tefillin would at some point be forgotten or misplaced by my boy, who was, after all, just a typical thirteen year old. Young adolescents are not particularly known for their sense of responsibility.
This got me to thinking. What if there could be some small and cheap GPS-like device that could be placed in every tefillin bag? If the tefillin were to be lost, the owner could call a telephone number and punch in his tracking number to initiate a search. The system would then locate the tefillin and call the owner. In its computer-generated voice, the system could say something like, “Relax. Your tefillin are located at the Lakewood Bus Terminal. Would you like directions how to get there? If yes, press 1. To hear this message in Yiddish, press 2.” Great idea, no? I even thought of a catchy name for it, the Tefillin Trakker.
To be honest, I do not have any plans to do anything with this idea except to use it for this article. The time, money, and effort that would be required to bring the Tefillin Trakker to market are too much for me. However, it does serve as a good case study to illustrate the principles of Jewish patent law. So let us ask the following question. According to Jewish monetary law, if any of you out there after reading this article would decide that you wanted to develop the Tefillin Trakker into a marketable product, could I legally stop you from doing so since it was my idea?
Often, the simplest questions are the most difficult to answer, and such is the case with regard to this one. In fact, the central concept underlying this question has been at the center of a debate among the halachic authorities for the last one hundred and fifty years. Put simply, our question boils down to the following issue. According to the Torah, is it possible to legally own an idea? Is an idea a legally recognized ‘something’ that to some extent exists in our physical world, or is it something too intangible, too spiritual, for it to be a legally recognized entity?
Surprisingly, there is no open discussion of this question in the Talmud or in any of the earlier halachic authorities. In fact, the first person to clearly express his opinion on this issue was the Sho’el U’meishiv, Rabbi Yosef Shaul Nathanson, who lived during the mid-1800s. In one of his teshuvos (m.k.,1,44), he states that logic dictates that the Torah recognizes the sole and complete ownership that an author or inventor has over his ‘intellectual property.’ Importantly, the Sho’el U’meishiv does not offer any proof from earlier sources for his position.
A number of authorities clearly argue against the validity of this concept. The Shu”t Maharsham (2,202), the Shu”t Kol Aryeh (ch.m., 134-135), and the Shu”t Imrei Aish (y.d., 88) all are of the opinion that an idea is not an ‘ownable’ entity. They argue that since there is no indication for the concept of intellectual property from any earlier authorities, its validity is highly questionable. Furthermore, they argue that to the contrary, logic would dictate that one cannot own something as intangible as an idea. An indication as to how well-established this disagreement is among our halachic authorities is the fact that while Rabbi Shlomo Zalman Auerbach, zt”l, was of the opinion that intellectual property is not a Torah concept, Rabbi Yosef Shalom Eliashiv, shlit”a, ybmcl”c, rules that the Torah does recognize intellectual property ownership.
Let us now return to our question about the Tefillin Trakker. It would seem that taking my idea for the Tefillin Trakker without my permission would be an act of theft according to the authorities that agree with the Sho’el U’meishiv. Granted, there is a dissenting lenient opinion. However, acting with stringency would definitely be appropriate since transgressing a Torah prohibition is at stake. However, there is another important factor still to be considered.
As brilliant an idea as the Tefillin Trakker is, I have to admit that it is really nothing more than extending an already existing technology to a new application. It is not a truly new idea. Nor is it an idea that involved a tremendous amount of technical expertise or creativity. A number of contemporary authorities make the point that for an idea to be owned by its creator there must not be a reasonable chance that someone else will arrive at the same idea. It must be a truly new and unique product of its creator’s mind. According to this criterion, my Tefillin Trakker idea would not qualify as intellectual property even according to the opinion of the Sho’el U’meishiv.
Although my control over the Tefillin Trakker idea seems to be in jeopardy, all is not lost. I still might try to apply for a patent for the Tefillin Trakker at the U.S. patent office. Assuming that I receive the patent, will that patent protect me in a Jewish court of law? The answer to this question is most emphatically ‘Yes!’ The reasoning behind this answer touches upon an issue that has far-reaching consequences for Jewish monetary law.
Let’s face it. We Jews do our business based on the customs of the land, minhag hamedina. We certainly are well acquainted with them. In fact, when two Jews interact in the marketplace, the Torah assumes that they are doing their business based on the prevailing customs that apply to that marketplace, even if those customs have no basis in Torah law. The Torah accepts this behavior as a valid way of doing business between Jews. This is true except when a particular custom is in direct contradiction to a Torah law. Then, the Torah’s law takes precedence. One of the greatest challenges facing a Jewish court is to know when and how to apply this concept of minhag hamedina.
Let us apply the principle of minhag hamedina to our case. Even if patent protection might not be the letter of Torah law, it certainly does not directly contradict any Torah law. In fact, it is most definitely in the spirit of the Torah to try to protect someone’s idea from being taken away from him. Therefore, the Torah would consider patent protection to be a valid minhag hamedina. Furthermore, since the custom of patent protection has been accepted by all modern Western countries, a Jewish court would consider this to be the operating custom among Jews as well. So, if I would succeed in registering my Tefillin Trakker with the U.S. patent office, I would be fairly confident that a Jewish bais din would side with me against anyone who would want to steal it from me.
There is one more important point to be made. Assume for a moment that I neglected to obtain a patent for my new invention. Further assume that I invested a lot of money and time into developing the Tefillin Trakker until it was almost ready to be marketed. At this point if someone were to acquire copies of the technical drawings or marketing plans for the Tefillin Trakker they would have obtained a significant gain from my money and efforts. In this scenario, all authorities agree that I have the right to stop that person from competing with me until I make a reasonable profit on my initial investment. Although I might not own the exclusive rights to the Tefillin Trakker, the competition does not have the right to negatively affect my livelihood by unfairly benefitting from my money and efforts. This principle is the reason why even those halachic authorities that argue with the opinion of the Sho’el U’meishiv strictly forbid industrial espionage.
Although this article has only touched on a few of the issues involved in Jewish patent law, I trust that the reader has begun to get a sense of the relevance and profundity that characterizes this subject. Of course, as with all areas of Halacha, a competent halachic expert should be consulted whenever a copyright, trademark, or patent question arises. Oh! and about the Tefillin Trakker. I encourage you to go ahead and run with it. I hope you make a million! I’m sure you’ll remember me ($$$) when you do.