Patterico's Pontifications

8/22/2014

Is the Ideal Patent Reform to Eliminate Patents?

Filed under: General — Patterico @ 7:42 am

Can you stand a non-Ferguson, non-ISIS, non-Obama post?

We should consider abolishing patents entirely.

Ken White tells us about the newest and most outrageous ploy by a patent troll: suing the lawyer that is trying to stop their abusive activity. A troll is an ugly monster who sits under a bridge and demands a toll for people to cross it, even though he provides no service whatsoever. A patent troll is an ugly monster who registers a ridiculous, overbroad patent, and then goes around suing and demanding cash settlements from people who do standard activities that he claims infringes on his patent.

The classic example is the guy who claims he invented podcasting. As I recall the story, he read stories from magazines and put them on cassette tapes, and filed a patent for this. In 2009, he “updated” the patent to include downloads from URLs on the Web. So now, if you are a podcaster, this guy might sue you — even though his supposedly original invention contributed zero to modern-day podcasting. For example, he sued Adam Carolla, thought to be the most successful podcaster in existence — and Carolla recently settled with him.

Abusive litigation is one hallmark of the patent troll, and in 2008 this very blog noted (for example) someone suing a patent troll tracker for defamation. Suits over patents tend to take place in the Eastern District of Texas. There is a little town there called Marshall that has numerous unoccupied office spaces which serve as the headquarters for plenty of “inventors” and their companies. The jurisdiction famously caters to patent trolls.

So there’s your background. Ken’s news is that one patent troll company is suing, not just the company that owns the patent, but their lawyer as well. Ken says: “Landmark Technologies has been widely described as a patent troll based on its model of demanding payments from businesses that accept credit cards online.” Landmark has sued eBay and eBay’s lawyer. Why eBay’s lawyer? Because he attempted to have the Patent Office re-examine Landmark’s patents. They claim this constituted any number of a laundry list of torts. As Ken points out, the Patent Office agreed with the lawyer as to one of the patents, and (by agreeing to re-examine them) showed that they believed there was a substantial question as to the others.

We’ve seen this type of abusive litigation, including suing lawyers who try to help victims, before. Hint: et-bray imberlin-kay.

Ken says: “However, the fact that patent trolls are willing to abuse the system like this — and lawyers are willing to help them — demonstrates the need for substantial patent reform.” Yes, I agree.

May I suggest abolishing patents?

Stephan Kinsella of AgainstMonopoly.org has argued that patents do not, in fact, encourage innovation. Instead, they cost the economy hundreds of billions of dollars, stifling innovation and creating a sort of oligopoly. I find his arguments convincing. The empirical evidence appears to contradict the notion that we need to use government power to restrict how ideas are used, or we will get no new ideas. I don’t have time for a full exposition here, but wanted to mention the idea to get a discussion going.

Also: Ferguson! ISIS! Obama!

UPDATE: I have changed the link to Kinsella’s argument since the YouTube video was not working. You can hear his argument here.

I will have more to say on this topic, as it is clear from the comments that the post has been misconstrued (I am not arguing that we abolish patents simply to deal with patent trolls, for example) and that the arguments in favor of abolishing patents are being given short shrift. It makes sense, I suppose, since (as I said) I didn’t really have time to make the case this morning — but I plan to do so in coming days.

210 Responses to “Is the Ideal Patent Reform to Eliminate Patents?”

  1. the fascist useless American Bar Association should worry more about disciplining sleazy lawyers and less about stripping Americans of their second amendment rights

    that’s where I’d start

    happyfeet (8ce051)

  2. I agree that the patent system is broken. “Build the widgets, sell them, take the money until the copies come, then close.” is the advice from a (former) patent attorney friend.

    I want to say that the problem comes from greedy companies grabbing patents for inventive work employees did when they were not working, but that’s a “too close to the problem” POV.

    No patent system completely shuts the little guy out.

    htom (412a17)

  3. I do not know what the answer is to lawfare intimidation, but other lawyers suffering at the hands of it is probably good incentive for lawyers to try to respond in a systemic fashion, rather than having legally defenseless folk getting SLAPPED around.

    I think some of you are intellectual property lawyers and know tons more than I ever will about this, but it seems to me that incentive to invent and innovate would decrease if one anticipates the possibility of getting nothing from their work. I had a friend who had an adhesives business who said he had developed something ahead of 3M, but realized he had no chance of beating them in a patent fight because he did not have the ability to bankroll the fight.

    MD in Philly (f9371b)

  4. We need, somehow, to start punishing the Eastern District of Texas for flouting the Rules of Civil Procedure for a start.

    But patents do, in fact, promote invention. Simply look at the last 3000 years of history – essentially no innovation (save minor modification to existing tech) until the last few hundred years. Why?

    Because there was no concept of intellectual property until the last few hundred years. I’m unwilling to go back to that.

    JWB (c1c08f)

  5. Two words, and the first one is bull.

    Patents are the only thing that stops huge companies from stealing the ideas of private inventors. I know a guy who has over 50 US utility patents and has made a pretty good living from this creativity. He would have been unable (and/or unwilling) to create any of this had the patent system not existed.

    The problem is not patents, but a system that allows “inventions” like “one-click shopping” or look-and-feel patents.

    The 17 to 20 year term of patents limits the monopoly greatly. Few ideas get implemented immediately, so the effective term is usually less.

    I would actually like the short patent term applied to copyright as that is where the real IP abuse occurs. Did you know that the completely obsolete MS DOS 1.0 will remain under copyright until at least 2070? Software copyrights are effectively of unlimited terms, despite the Constitution’s mandate otherwise.

    Kevin M (b357ee)

  6. Patterico – I don’t Kinsella has more of those high quality anarcho-liberarian arguments:

    The state grants monopoly privileges, and to justify it, it and the beneficiaries of monopoly use propaganda to try to justify it: they call it “property.”1 They have no choice but to engage in propaganda, I guess, since all arguments for IP are absurd. State granted monopolies are not property rights. They undermine property rights. It’s not property. It’s monopoly.2 So what if it “can be” treated like property? That doesn’t justify it.

    http://c4sif.org/2012/01/stop-calling-patent-and-copyright-property-stop-calling-copying-theft-and-piracy/

    Hey, the arguments for IP are all absurd and we need to stop calling patents property. Well okay then. Patents and copyright violate property rights – I’m guessing of people seeking new ones, but I have not gotten there yet.

    What about state granted monopoly privileges to land? Does the author believe those type of property rights are absurd?

    daleyrocks (bf33e9)

  7. I hate software patents with a deep and abiding passion.

    But I think that *pharmaceutical patents* are essential – there’s no way big pharma is going to invest in new drug development without the guaranteed return provided by a patent. Too many drugs fail, and the process of developing them is too expensive. Abolishing patents means the end of pharmaceutical innovation.

    aphrael (831332)

  8. aphrael,

    Software patents only last 17 years. Software copyright lasts at least 95 years and likely longer. Give me an example of a software patent (NOT a business concept patent, which should never be allowed).

    Kevin M (b357ee)

  9. “What about state granted monopoly privileges to land? Does the author believe those type of property rights are absurd?”

    Well, see, um, those are different, because, um, they’re real? And they take effort to acquire? And there’s only one of them? Um, reasons?

    -_-

    JWB (c1c08f)

  10. Patent reform is definitely needed, but abolishing them probably wouldn’t be a good idea. When abolishing patents for technology, the result would probably be beneficial because modern courts clearly don’t seem to understand technology well enough to make an assessment (which has led to technology companies hoarding patents to fight off litigation with a MAD doctrine). But the more impacted fields would probably be industries like the Pharmaceutical industry.

    Currently, there is so much regulation around Pharmaceuticals that it takes ~7 years to bring a new drug to market AND the patent only lasts for 20 years. Given the regulation and the liability pharmaceutical companies face to even sell their product, they have to recoup a ton a money when they bring a new drug to market (part of the reason branded drugs are so expensive).

    I would argue that in some cases, patents need to be extended. I mean, when you look at musical copyright law, the artist gets protection over his musical creation for his entire lifetime plus 70 years…yet when you make a life saving drug, you get 20.

    I’d say that part of the reform should be to restrict the purpose of patents, but still allow people to file an official record for a patent (that does not constitute a patent). A couple years ago, I think there was a SCOTUS ruling that forced the patent office to issue patents for everything, so now we have something like 70 patents for toaster ovens on the books. The patent office may also pay for genuine patents to pass to the public domain to reduce restrictions on its use.

    Dejectedhead (a094a6)

  11. To say that patent trolling means that patents should be abolished is like saying that nuisance suits and ambulance-chasing lawyers means that personal injury lawsuits should be abolished. Or that grand juries should be abolished because of ham sandwiches. Or that perjury should not be a crime since it is prosecuted in the exception.

    Kevin M (b357ee)

  12. Kevin – reverse engineering doesn’t violate copyright but does violate patent. But my real problem with them is that in practice many of them are obvious to a programmer (but not to the patent office given their cramped definition of prior art) and/or are independently developed by multiple programmers who have no idea that someone else has ever developed the same idea.

    In practice, most software patents are business method patents, so it’s hard to answer your question. But — someone has a patent on detecting pressure on an electrified screen and converting it to positional information, for example.

    aphrael (831332)

  13. So, dejectedhead, to my friend with the 50 technology patents for things like “an improved oxygen sensor” or a “new error correcting code” or an entirely new “method of locating distant objects” you’d say “nah, none of that should be patented”?

    Kevin M (b357ee)

  14. Since the video is unavailable when I click on it I can not see the argument he makes with Tom Woods, but I’m fairly certain I can predict its course. I will wait for further illumination from our host.

    daleyrocks (bf33e9)

  15. The problem is not patents, but a system that allows “inventions” like “one-click shopping” or look-and-feel patents.

    Years ago I wrote a software gateway for a company I worked for that allowed users to send email to alphanumeric pagers. One of our clients was Motorola who made pagers and equipment that transmitted to pagers. Motorola decided that they owned the patent for any program that sent text to a pager. My program connected to their equipment via modem and used their published protocol (TAP) to send messages to pagers. They did not have any plans to create a product like ours and were even one of our customers. Their lawyers issued us a cease and desist letter because of their patent. Now our product didn’t actually send text to pagers, it sent text to their equipment that sent text to pagers.

    Lucky for me, I had created and sold a command line product that allowed people to send messages to pagers before they were issued a patent. Since I had “prior art” we were able to continue selling our product. I believe that a lot of software patents which are not things, limit innovation.

    Phone software used to let you test drive their products and click a button to upgrade to a paid version. Some company has a patent on that logic, so no more upgrade buttons in software. I thought patents were for physical things.

    Tanny O'Haley (f5a155)

  16. 13. I didn’t say I had all the answers Kevin, just that the courts don’t have the expertise to properly assess them. I was thinking more in line with how they issue patents for the idea of a network.

    Dejectedhead (a094a6)

  17. A huge part of the problem is that the PTO *and the patent bar* are not well set up for software patents and are not skilled at telling what is, or isn’t, in fact innovative.

    As a related aside: I am a software engineer and a lawyer. I have programmed professionally for more than fifteen years, and worked in software QA and tech support for five years before that. I cannot take the patent bar exam and cannot work for the patent office.

    aphrael (831332)

  18. But — someone has a patent on detecting pressure on an electrified screen and converting it to positional information, for example.

    I have no problem with that. If it was so bloody obvious, why was it not already known to the art. It is a valid attack on a patent that 1) it was obvious, or 2) it was commonly being used by practitioners of the art. Usually those really basic patents are done so far in advance of any possible use (e.g. the fingerprint sensor safety gun from the early 90′s) that there is no barrier to actual use.

    But again, so many things seem obvious after they are described. Often though, no one thought of them first. Why should they not be patentable? People damn TiVo for insisting on royalties for their DVR patent, and suing the bejeezus out of DiSH for ignoring them, but really if it was so obvious why wasn’t everyone doing it before TiVo? (Never mind that TiVo’s patent team was truly wretched and they should have had 20 strong patents instead of a couple weak ones).

    Kevin M (b357ee)

  19. A huge part of the problem is that the PTO *and the patent bar* are not well set up for software patents and are not skilled at telling what is, or isn’t, in fact innovative.

    *this*

    I cannot take the patent bar exam and cannot work for the patent office.

    Is that a credential thing? What would you have to do to rectify it?

    Kevin M (b357ee)

  20. I think a big problem with patent assessment is that many patents don’t work independent of other patents. While it may have been easy to assess a steam engine’s innovativeness, now it seems there are a lot more connecting technologies. An innovative computer code depends on all the hardware structure of a computer system and the software structure of the digital environment it is in.

    Dejectedhead (a094a6)

  21. May I suggest eliminating abusive litigation rather than abolishing the patent system?

    Analysis suggesting that the patent and copyright system is costing the economy hundreds of billions of dollars implicitly suggests that the underlying copyrights and patents have that intrinsic value and that the free market solution to the issue would be for companies needing access to the processes or intellectual property in a patent owned by another party buy it or license it from such party to compensate that party for its value.

    If businesses engaged in the actual production of goods and services (not mere distribution) were arguing for the abolition of intellectual property I might be more inclined to pay attention. If that is a trend I have missed, I would be happy to have it pointed out. Instead I see economist who produce nothing and have no skin in the game telling others what is wrong with the system.

    daleyrocks (bf33e9)

  22. I have seem patent greed backfire on corporations, btw.

    Once upon a time there was a company called Atari Corp. They made really popular home video game machines in the 70′s and early 80′s. They had a joystick controller (used in the 2600 game box and Atari 400/800 computers) that worked well and cost almost nothing to build. Anyone could take it out of the box, use it instantly and grok it completely. But it had insufficient patent protection.

    Then Atari started developing the Atari 5200 home game machine and offered its engineers a large bounty on patents. Someone came up with a fairly complicated joystick idea that was indeed patentable. Mainly because it was such a lame idea that no one would think of it without a bounty. The controller was wretched. It didn’t auto-center, for example and the displacement feedback was poor. But you couldn’t use the old, beloved, joystick on the new 5200 ports.

    The 5200 failed to sell well and it was the beginning of the end of Atari Corp and they died shortly thereafter.

    Kevin M (b357ee)

  23. #21. That’s probably easier said than done. People look at access to the courts as a “right”.

    Kind of the same situation encountered as if you wanted to restrict voting rights to people that are knowledgeable of our government.

    Dejectedhead (a094a6)

  24. I think a big problem with patent assessment is that many patents don’t work independent of other patents

    This is true and why patent terms are short and will remain short. Unlike copyright, it harms inventors to have terms too long, since technology builds upon itself. The current 17 year term is pretty much the same as it has been for the last century or so, probably because it works.

    Kevin M (b357ee)

  25. There is patent abuse. There is spousal abuse, too. Let’s abolish patents and marriage. ;)

    nk (dbc370)

  26. I have some data mining/collection patents and have had no issues to speak of, but do know litigation is a problem. Feets has a point re: sleazy lawyers and the parasitic patent trolls and others involved in the system that look to engorge them selves on the hard work and intellectual property of patent holders.

    Colonel Haiku (2601c0)

  27. When Lipitor was under patent, it was prescribed to heart patients with normal cholesterol. When it became generic, the study that showed that it caused wasting and should not be prescribed to people with high cholesterol was published. From law school, there is the famous story of Xerox trying to get people to buy Xerox paper for its plain paper copiers that was no different from nk or Patterico paper. Let them Duke it out. As long as they’re eating only each other, what do we care? They’re making money; they can pay for lawyers.

    nk (dbc370)

  28. not be prescribed to people with *normal* cholesterol

    nk (dbc370)

  29. “#21. That’s probably easier said than done. People look at access to the courts as a “right”.”

    Dejectedhead – I fully understand that. The premise of the post though started with abusive litigation almost as a teaser for a suggestion to eliminate the patent and copyright system. I am merely suggesting our host has the priorities backward.

    daleyrocks (bf33e9)

  30. I favor instituting the “five smart guys” rules for patents:

    If you present the problem to five smart guys in the industry and they could come up with the patented solution in less than a day, it’s obvious and should not be patentable.

    matt d (7b78f2)

  31. “#21. That’s probably easier said than done. People look at access to the courts as a “right”.”

    Dejectedhead – I may have missed the memo, but I have not seen Microsoft, Apple, Samsung, and Nokia jumping up and down to eliminate intellectual property protection.

    daleyrocks (bf33e9)

  32. aphrael (831332) — 8/22/2014 @ 8:56 am

    Good to see you, thought about you this am. How’s things?

    MD in Philly (f9371b)

  33. > People damn TiVo for insisting on royalties for their DVR patent, and suing the bejeezus out of DiSH for ignoring them, but really if it was so obvious why wasn’t everyone doing it before TiVo?

    People were – I remember people hooking up linux boxes to record signal off of cable boxes several years before TiVo. The thing is they were small scale hackers, so nobody not in touch with the community knew about them, and they didn’t have the business sense to monetize it the way TiVo did.

    aphrael (e0cdc9)

  34. And I go back to what I said before, and what others have said,
    while there may be ways patent law should be changed,
    the bigger issue is abusive litigation.

    If lawyers get included personally in being the recipient of abusive litigation, maybe something will be done about the overall problem.

    MD in Philly (f9371b)

  35. > Is that a credential thing? What would you have to do to rectify it?

    Yes. A set number of credit hours in physics, bio, or chem – the credit hours I have in CS don’t suffice and neither does my professional experience.

    Which is of course the point – undergraduate physics courses allow me to take the patent bar, but a decade and a half of software dev experience doesn’t.

    aphrael (e0cdc9)

  36. MD in Philly – decent. I enjoyed Gencon, and then promptly got sick afterwards. I am recovering now. :)

    aphrael (e0cdc9)

  37. I remember as a young teen wishing I could tell my am radio to scan stations and automatically play what was top on my list of things to play,
    I guess I should have patented the idea.

    MD in Philly (f9371b)

  38. How . . . amusing.

    The Rothbardian Anarchist has declared that Randian Objectivism is utterly illegitimate.
    After all, without patents, or any concept of IP rights, the entire basis for Atlas Shrugged vanishes, as it does for The Fountainhead.

    Functionally though, what exactly is the difference between “the legal process concerning X is broken, therefore let us abolish the laws concerning X” and “no justice, no peace”?
    Anarchy and Marxism – so close and yet so far!

    Sam (e8f1ad)

  39. #31. Not sure how my quoted statement relates to your comment, but you have not seen Microsoft, Apple, and Samsung engaging in ending intellectual property protections because each of those companies have thousands of patents in their position in which to engage in a war of litigation if challenged. They have insulated themselves from the patent trolls and arbitrary litigation. They also have the money to bankroll a lawsuit, the current system favors big players with big bucks. It is usually the smaller shops that get hit with the trolling lawsuits. I don’t think someone at the top of the market ever seeks to disrupt the system that they currently are on top of.

    However, Apple did sue Samsung for patent infringement. Of course that became dependent on what country the suit was filed in. (Which brings up another point, if the US got rid of patents, the rest of the world still has them).

    Dejectedhead (a094a6)

  40. “#31. Not sure how my quoted statement relates to your comment”

    Dejected Head – It relates more to my comment upon which you commented questioning why I suggested getting rid of abusive litigation rather than IP.

    daleyrocks (bf33e9)

  41. A patent troll is an ugly monster who registers a ridiculous, overbroad patent,

    A problem made possible in recent years because patents are granted too easily. That needs to eb aseparate reform. Another problem is the multiplicity of patents, and yes, it slows things down.

    If patents do more good them harm, maybe also copyright.

    Or perhaps the terms of patents should be shorter.

    Sammy Finkelman (3ba0b7)

  42. Some patents ought to be bought up by the federal government, with perhaps the original patent owner having an independent licensing ability.

    The worst place is in medicine, where you also have the long drug approval process.

    1) Any new use for something non-patentable is not worth researching.

    2) A compound may be patentable only by a one company, and it is worth nobody else’s while to research it. (but they can try with an almost identical, even if inferior, compound.

    3) If in the course of a stidy it occurs to someone that a slight modification would help, or even a different dose, they can’t change the study. Any change and it is back to Square One.

    Sammy Finkelman (3ba0b7)

  43. MD in Philly (f9371b) — 8/22/2014 @ 8:19 am

    I had a friend who had an adhesives business who said he had developed something ahead of 3M, but realized he had no chance of beating them in a patent fight because he did not have the ability to bankroll the fight.

    The state of teh aw is too developed.

    Perhaps there should be strict limits on the ability to sell, or assign, patents.

    No patent collectors.

    Sammy Finkelman (3ba0b7)

  44. “By all means a commonweel must fail”…
    That’s a line I remember reading in Of Plimoth Plantation; Bradford had as good an explanation of the need for private property as any economist today.
    The problem the Pilgrims had was that at first, they held the land in common and allocated it by lot. Come harvest, the grain went into a common storehouse.
    But no one would manure their field, because the work and expense did not help them.

    The solution that they came up with was dividing the fields up into lots, and making
    those private. People started manuring their fields, and yields went up a good bit.

    Now, what does that have to do with patents?
    The idea of patents is that if someone does the work of figuring out a better way to do
    something, their reward is that they get to own it. (So in a way, this is the reverse of what the Pilgrims did.) The alternatives I’m aware of are that
    (a) inventors have to hope for the best,
    (b) inventors get compensated by “the public”, or
    (c) everyone keeps their own methods as secret as possible.

    (b) probably gets the State involved, which means that there’s a bias towards inventions
    that the government wants.
    (a) is not proportional compensation.
    (c) could result in proportional compensation, but on the other hand,
    no one can fix the problems that the inventor/manufacturer couldn’t, and many methods
    may be lost to posterity.
    Also, someone could well find out another inventor’s methods and profit off those.

    Ibidem (ad711d)

  45. As far as scope goes, patents should cover one invention, with a functioning physical example being required. If you can’t point out a similarity in relevant and novel detail (not concept!) to the example, you can’t claim infringement. If you can’t show a relevant and novel detail in the first place, you don’t get the patent.
    (“Relevant and novel”: If two engines both use cranks, it’s not novel; if they both
    use a new method of injecting fuel but the patent doesn’t cover that, it’s not relevant.)
    Adding claims should not be permitted unless you can show that they were novel aspects of the model/example.

    Ibidem (ad711d)

  46. One idea: Make it illegal or ineffective to sell patents. You could only sell a permanent license.

    This would also give the inventor more money, as he would have to retain an interest in order to have any monopoly or semi-monopoly. Although there would be false patent applications, with the wrong person(s) descrobed as the inventor.

    Sammy Finkelman (3ba0b7)

  47. The problem there: what happens if I want to get out of that business and have nothing to do with it?

    Ibidem (ad711d)

  48. Anyhoo, there’s attorneys fees for losing trolls so …. http://www.supremecourt.gov/opinions/13pdf/12-1163_8o6g.pdf

    nk (dbc370)

  49. Playing Devil’s Advocate:

    I’m the first to admit that intellectual property is not the same as physical property. The latter exists and can be bought, sold and defended in a state of nature. The former only exists at the insistence of government. The moment you try to sell a copyrighted item or license a patent, it is ONLY legal niceties (government) that prevent every other person from robbing you blind.

    At which point the government has a reasonable question: why should we?

    Kevin M (56aae1)

  50. Which is of course the point – undergraduate physics courses allow me to take the patent bar, but a decade and a half of software dev experience doesn’t.

    That is not strictly speaking a failure of the patent system, but one of a failure to keep up.

    Kevin M (56aae1)

  51. At which point the government has a reasonable question: why should we?

    Because if you don’t give me a patent for my lightbulb, I won’t tell you what it is, and you’ll be watching TV by candlelight. — Thomas Edison

    nk (dbc370)

  52. A couple of points:

    1. Patent term currently is 20 years from date application is filed. Patent protection begins when patent issues, which can be many years from date of application.

    2. Abolishing patents would require a Constitutional Amendment.

    The constitution clearly states that patents and copyright are intended to promote the progress of science and useful arts. An exclusive right to discoveries and writings is granted for a limited time. Exclusive means you can do (or not do) anything you want with your patent. If you, as an inventor, don’t want to be bound by the patent process, then don’t file for a patent. Keep your invention secret, if you can. Don’t be shocked if someone else finds out and starts using your invention without paying you for it. If you think you may be infringing or are accused of infringing another’s patent, then you can chose to fight it or work around it. That’s how the system is supposed to work.

    If promotion of science is being hindered by current patent law, then the law needs to change

    Tom (1023ce)

  53. abolishing patents just in america would be a great way to convince companies and smart individuals to relocate to more prosperous countries like China or Australia or Mexico where their inventions would be protected and out of reach of the sleazy legal system in Marshall Texas

    happyfeet (8ce051)

  54. Dude, you know that wicked awesome thing you invented. I am so copying that!

    Wut? You can’t do that. I took me years and tons of money to perfect that thing, plus I got a patent on it.

    Dude, state granted monopolies are not property rights and all the arguments for them are absurd. I read it on the internet.

    You need to stop smoking so much weed. The U.S. Constitution provides the government the ability to grant people like me patents to protect our inventions from people like you who want to steal them.

    Dude, the Constitution is like a 200 year old piece of paper. Stop making this all about yourself you greedy geek. Patents cost the economy like hundreds hundreds of billions of dollars. I read it on the internet.

    Spicoli, if you steal my invention I’ll see you in court.

    daleyrocks (bf33e9)

  55. I haven’t had time to read the comments yet, so I’m just responding to the post itself.

    It depends for what. I’ve been against software patents since they were invented in the mid-’80s. It used to be that software was considered a method, not a device, and you couldn’t patent those. We should go back to that rule. The thing is, when you’re developing a traditional device, say a better window-washer for a car, you might have a budget of $10M, and you might make five potentially new inventions, so you would have to do five patent searches to see whether someone else has already registered them, and if so either do without them, find another way to do the same thing, or pay royalties. But in a typical software development project you might have a budget of $500K, and make 100 discoveries that might be patented, and you can’t possibly afford to search them all.

    Milhouse (7999ec)

  56. aphrael — some of us didn’t think that recording video to a hard drive was innovative enough to be patentable; we were doing that from cameras already. The inovation was disconnecting the camera’s cable to the video input and attaching the TV tuner’s output cable. Not inventive. I was stunned that TiVo’s patent was granted.

    I’ve heard — but do not know — that someone in the 1980′s tried to patent binary two’s compliment arithmetic (but was denied.)

    htom (412a17)

  57. As far as scope goes, patents should cover one invention, with a functioning physical example being required.

    That’s just crazy. Not all inventions are physical (e.g. a new encryption system) for one thing, and no one will invest in building a prototype without the security of a patent UNLESS they are a big corporation of something.

    Kevin M (56aae1)

  58. Because if you don’t give me a patent for my lightbulb, I won’t tell you what it is, and you’ll be watching TV by candlelight. — Thomas Edison

    Yes, that is the “why should we”. But now, how long do I have to give you the monopoly for and still get you to publish the details?

    Or maybe I’m a green and hate innovation, so candles it is!

    Kevin M (56aae1)

  59. you can’t possibly afford to search them all.

    Not so hard to do a patent search these days. You can do a fairly good one in 30 minutes from your laptop. Even some pending patents are online now.

    Kevin M (56aae1)

  60. What’s all this I hear about abolishing patients? Why, without any patients, how are those doctors and hospitals going to do their jobs? Patients are very important to the —

    Patents“?

    Oh.

    Never mind.

    Beldar (fa637a)

  61. What sort of trial cosmetics do you make use of so juries are not distracted by your peculiar features?

    http://4.bp.blogspot.com/_IqWOPMHbs0E/S6NzL9KTjjI/AAAAAAAAEh8/bqZrlFDknrI/s200/beldar_conehead.jpg

    Art Deco (ee8de5)

  62. Dude, the Constitution is like a 200 year old piece of paper.

    So *that’s* what Ezra Klein sounds like when he’s high! As I suspected, it’s pretty much like what he sounds like when he’s sober and spreading Voxderp joy to the world. . .

    M. Scott Eiland (15aac4)

  63. Yeah Pat, I get your point. But the biggest turd in the road for America’s legal system is that loser doesn’t pay, except in California divorce proceedings.

    Dirty Old Man (c6c659)

  64. Kevin, @50: yes and no. It’s a flaw of the patent system as currently implemented. Changing the implementation could improve it, certainly. :)

    aphrael (e0cdc9)

  65. Millhouse – at every software job i’ve ever worked, i’ve been instructed *not* to search for patents. If nobody in software does this, then any infringement is accidental, and the damages are less. If, on the other hand, even one engineer checks, then the engineering organization can be presumed to know the contents of the patent database, and infringement is wilful, and punishable to a greater degree.

    Or so the corporate lawyers have explained to the software guys.

    aphrael (e0cdc9)

  66. Can we stop with the “monopoly” C-R-A-P, BTW? I doan theenk that hword means houat joo theenk eet means. A monopoly is when John D. Rockefeller owns all the gasoline in the world. It is not when Ernest Hemingway is the only one who thought up for Whom The Bell Tolls.

    nk (dbc370)

  67. Kevin M, at 49 – the patent system is a compromise. Inventors are required to disclose the internal working of their inventions so that the public can see them and learn from them and build on them, and in exchange, they’re granted a temporary monopoly. Without the monopoly, there is no requirement and no incentive to disclose the internal working.

    In a sense it’s bribing inventors to provide a public good by granting them a short-term monopoly, and what we’re really arguing over is how to adjust the parameters so the bargain actually works for everyone.

    aphrael (e0cdc9)

  68. Sammy, at 46: the problem with that is that it would render patents to be non-property in bankruptcy proceedings, and therefore prevent them from being used as collateral for loans, etc. Also, it would cause problems with inheritance if the patent holder died, etc.

    aphrael (e0cdc9)

  69. nk, in patent law, ‘monopoly’ is the term of art used to describe the exclusive right to make use of an invention until the patent expires. it’s *technically correct jargon* in this context.

    aphrael (e0cdc9)

  70. Dirty Old Man, your ignorance, at least on this issue, is curable. Look at the U.S. Supreme Court opinion linked in my comment 48. It does use long words but the opinion is short.

    nk (dbc370)

  71. 49.Playing Devil’s Advocate:

    I’m the first to admit that intellectual property is not the same as physical property. The latter exists and can be bought, sold and defended in a state of nature. The former only exists at the insistence of government. The moment you try to sell a copyrighted item or license a patent, it is ONLY legal niceties (government) that prevent every other person from robbing you blind.

    At which point the government has a reasonable question: why should we?
    Kevin M (56aae1)

    Reputation isn’t physical.
    Why should the government care if someone is defamed?

    Knowledge and expertise aren’t physical either.
    Why should the government care about technical licenses?
    (Provided no physical harm is done. Though what exactly is “physical” “harm”?)

    Sam (e8f1ad)

  72. aphrael – I think part of the issue here is perspective or what hat one is wearing when addressing the issue. It is perfectly fine from a macro or central planning perspective to say that patents and copyrights are inefficient because they prevent the free exchange of technology, processes, or whatever.

    That perspective, however, is merely substituting the preferences of the central planner for the preferences of the individual or patent owner or may not give two sh*ts about the welfare of society as a whole and just wants to maximize his profits while he can. If we are a society which believes that individuals are entitled to the fruits of their labor, how do we suddenly justify a radical departure such as eliminating the patent and copyright system, for teh common good?

    daleyrocks (bf33e9)

  73. Reputation isn’t physical.
    Why should the government care if someone is defamed?

    Knowledge and expertise aren’t physical either.
    Why should the government care about technical licenses?
    (Provided no physical harm is done. Though what exactly is “physical” “harm”?)

    As I said, I was being a Devil’s Advocate. Just making the point that IP isn’t classic property in that it is an artifact of government’s desire for commonwealth. In a state of nature, your only defense is to keep it a secret, which helps nobody but yourself and barely even that.

    It is interesting to note that patents and the Industrial Revolution began at about the same time (circa 1700).

    Kevin M (b357ee)

  74. What’s all this I hear about abolishing patients

    Beldar–

    I didn’t know you were British.

    Kevin M (b357ee)

  75. When I rule the world, I will have a Patent Expiration Date Commission. The more beneficial the invention, the longer its enforcement. Bayer would have the patent on Aspirin in perpetuity, for example. So would Zipper. Apple’s iGimmicks for one year or until the next model comes out, whichever is shorter.

    nk (dbc370)

  76. A much better discussion would be “Are copyrights now too long (at 95 years and sometimes more)?

    What would be a reasonable length for copyrights? The Constitution mandates a limited term, but it is technically true that a trillion years is a limited term. If you admit that is silly, is there a shorter term that would still be considered unlimited?

    Is 95 years, longer than the typical human life, limited or not?

    Would a copyright system based on a 20 year term allow for adequate return and encourage the arts? Or does it have to be longer?

    Kevin M (b357ee)

  77. nk,

    Nobody cares about most patents. ONLY the useful ones need to have short terms. The ones about new improved hatboxes can run as long as you like.

    Kevin M (b357ee)

  78. But we were talking about utility. From a utilitarian point of view, the government wants to encourage “useful” inventions. The Constitution uses the word. If you want to waste your time on toys, well, good luck! If you want to find a cure for cancer, you and your descendants will live like kings forever. Hmm?

    There is no reason to have a limit on copyrights, except those set by the author’s vanity. If he wants to be read by future generations, he can grant some kind of creative commons license. If he wants to be read only by people who care enough about his ink splotches on paper to pay for it, I see no state interest being harmed by granting him that indulgence forever.

    nk (dbc370)

  79. Wait, there’s more. We want to encourage “new” inventions. Not just by the first inventor, but by subsequent inventors. If Colt still held the patent on revolvers and Maxim and Browning on automatics, Glock might be producing phasers. If Shakespeare’s copyright were still in force, Kurosawa may have written an original script for Ran. Stuff like that.

    nk (dbc370)

  80. “I’m the first to admit that intellectual property is not the same as physical property. The latter exists and can be bought, sold and defended in a state of nature. The former only exists at the insistence of government. The moment you try to sell a copyrighted item or license a patent, it is ONLY legal niceties (government) that prevent every other person from robbing you blind.”

    Kevin M – I’m not sure I agree with the differences outlined in your Devil’s Advocate point above. IP and physical property can both be bought and sold and monopoly rights to both exist as a result of our legal system. Nothing prevents you from being robbed blind in buying or selling either.

    daleyrocks (bf33e9)

  81. 17 – nothing you’ve said disqualifies you from taking the patent bar exam or working for the patent office. also, there is no such thing as a software patent. software could be copyrighted though.

    deskbox (c5dee8)

  82. deskbox,

    You have a lot to learn about patents. There most definitely are software patents and they wreak a lot of havoc.

    Patterico (8a6cde)

  83. UPDATE: I have changed the link to Kinsella’s argument since the YouTube video was not working. You can hear his argument here.

    I will have more to say on this topic, as it is clear from the comments that the post has been misconstrued (I am not arguing that we abolish patents simply to deal with patent trolls, for example) and that the arguments in favor of abolishing patents are being given short shrift. It makes sense, I suppose, since (as I said) I didn’t really have time to make the case this morning — but I plan to do so in coming days.

    Patterico (9c670f)

  84. The bottom line is that there really is no evidence to say that patents are a net boon or that they encourage innovation in the aggregate.

    Patterico (9c670f)

  85. I think you’ll find that your problem is more at the PTO.They may just have told themselves to have a philosophy where they serve their clients, the patent applicants. Rather than serve the public, by rejecting silly patents. Then again rejecting a patent may make more work for them than accepting one.

    nops (1467a4)

  86. necessity is the mother of invention

    but patents are the baby daddy i think

    happyfeet (8ce051)

  87. So if we don’t give a government-enforced monopoly to an inventor, nobody will want to invent anything?

    I doubt that.

    Why did Einstein bother working on the Theory of Relativity? How long did his patent for that last?

    I know a guy who has over 50 US utility patents and has made a pretty good living from this creativity. He would have been unable (and/or unwilling) to create any of this had the patent system not existed.

    How do you know this? How do you know he would not have gone to work for a company? Why is monopoly necessary for innovation?

    There are a lot of stories out there (having nothing to do with patent trolls per se) of monopolies erecting barriers to innovation.

    But that will all be in an upcoming post.

    Patterico (9c670f)

  88. ok but please to address how one country can unilaterally move away from a patent system without causing extreme and unintended dislocations, if you think it’s relevant

    that’s the most headscratching part for me

    happyfeet (8ce051)

  89. At which point the government has a reasonable question: why should we?

    Because if you don’t give me a patent for my lightbulb, I won’t tell you what it is, and you’ll be watching TV by candlelight. — Thomas Edison

    Whose lightbulb?

    Also from the link:

    Edison, Lemley writes, “did not ‘invent’ the light bulb in any meaningful sense.” Electric lighting was long in the works when Edison came on the scene, and his work attracted several patent infringement lawsuits from his contemporaries.

    Also, flight was delayed quite a bit by the Wright brothers filing lawsuits against people who threatened to make far more useful airplanes.

    I can go on.

    Patterico (9c670f)

  90. The reason to patent something is if someone else can monetize the invention before you do, in a way that you can discover if they do. The fact that some inventions (never mind whether they are patentable subject matter or not) aren’t monetizable in the period of a patent doesn’t mean that others aren’t.

    I don’t think that Monsanto would have invested in that seed corn if they knew anyone could just take it.

    nops (1467a4)

  91. ok but please to address how one country can unilaterally move away from a patent system without causing extreme and unintended dislocations, if you think it’s relevant

    that’s the most headscratching part for me

    Boldrin and Levine, who are at the forefront of the fight against patents, suggest a mild start at reform: make patents last 18 years instead of 20, and see if the world falls apart.

    Ideally, they want the length to be zero years. But: baby steps.

    Patterico (9c670f)

  92. nops,

    There is always a first-mover advantage. The ability of firms to swoop in and immediately recreate products is overstated. It usually takes years (maybe four).

    The question is whether the monopoly is worth the cost to innovation, the lack of standardization, the trolls, and the attempts to completely shut down useful businesses.

    Patterico (9c670f)

  93. Well with seed corn its a first mover disadvantage. One guy puts a lot of effort into inventing the expensive seed, you buy the expensive seed, and I buy the cheap corn people don’t eat and plant that.

    There’s another thing being lost here, which is the cost & benefit of monopoly in one sector/invention (say, a GM seed that takes several Phd’s to develop but can boost production tremdously) might not be the same as in another (one click shopping!). So maybe the solution is at the PTO.

    nops (1467a4)

  94. Patterico:
    There’s a big distance between “nobody will invent anything” and the state of inventions in America (pick any time period with US patent laws).
    And I don’t know where the hypothetical “US without patents” would fall, because it does not exist.
    But to argue that it’s not going to have an impact, because we don’t know what that impact is, is wishful thinking and bad logic.
    So, how do we evaluate what the impact is likely to be?
    We can compare with other countries, the Colonial period, or with parallel circumstances.
    -I can’t give a good comparison with the Colonial period.
    -Other countries: two countries I can think with no/minimal patents of are the (former) USSR and Iceland. The USSR had no patents. Many Soviet computers were a knockoff of older US designs (eg, the clones of the PDP11), and in numerous other ways they were behind. But I can’t tell how much is communism rather than lack of patents. Iceland: I’m not sure exactly where the patent laws stand, and not sure where technology stands. But it’s not an international center…
    -parallels: communism vs private enterprise. We all know how this one came out.
    So sure, there probably will be some inventors making their inventions public, no matter what. But that doesn’t mean that patents are useless.
    And what information I’m aware of tends to support the argument for patents.

    Further, it is my understanding that the burden of proof for a change will rightly rest on the ones proposing or promoting that change.

    Ibidem (ad711d)

  95. Well with seed corn its a first mover disadvantage. One guy puts a lot of effort into inventing the expensive seed, you buy the expensive seed, and I buy the cheap corn people don’t eat and plant that.

    Monsanto controls the overwhelming majority of soy and corn production and has made it far more expensive. Somehow I think seeds were made and sold before they could be patented and people survived. What didn’t happen is what is happening now, with Monsanto suing farmers for pollination that occurs naturally.

    Patterico (9c670f)

  96. And what information I’m aware of tends to support the argument for patents.

    I’ll share my information in a coming post, but here’s a hint: it’s Boldrin and Levine.

    What’s your information? Feel free to lay it out.

    Patterico (9c670f)

  97. According to Boldrin and Levine (.pdf), in the 19th Century, “countries without patent systems had overall rates of innovation similar to those with a patent system.” If you have contrary data, again, feel free to lay it out.

    Patterico (9c670f)

  98. About 8 years ago, I invented a BULLSHIP DETECTOR. It wasn’t expensive to make, and it didn’t need approval of the FDA. My BS detector was simple. Each time Obama spoke, IT WENT OFF. Obama could claim to be human, and my BS DETECTOR would rule otherwise. The PATENT WAS DENIED. I was told a couple ROGUE AGENTS in PEORIA are responsible, and the case is being looked into.

    Gus (70b624)

  99. 87.So if we don’t give a government-enforced monopoly to an inventor, nobody will want to invent anything?

    I doubt that.

    Why did Einstein bother working on the Theory of Relativity? How long did his patent for that last?

    The Theory of Relativity is not an invention.
    It is an observation.
    A rather profound observation, with far reaching effects on science as a whole, but still just an observation and not an actual invention.
    The nuclear reactor was an invention that derived from it, as was the nuclear bomb, but of course those were government sponsored and so didn’t get patent protection.

    Now the explanation of that Theory is a bit different, and would be covered by copyright.
    And even without benefitting from direct sales of the book detailing his theory, Einstein still managed to attract attention by promoting it, and from that received significant compensation, in the form of teaching positions, individual lectures, and research grants.
    Of course if his individual contribution had been casually challenged, by plagiarism, then he might not have received even that. I’m pretty sure Einstein would have objected to that, as have most all creative people who have credit stolen from them.

    But that doesn’t actually address the issue.
    Just because any particular individual, or even a significant number of individuals, is willing to provide an intellectual service for free in no way means others should not have protection for their efforts.
    Just because some lawyers work pro bono is no reason to declare that all legal work should be provided free of charge, is it?
    Just because you blog for free is no reason to declare that anyone writing any sort of commentary must do so for free, is it?
    An individual is free to dispose of his property anyway he sees fit without placing any obligation on another to dispose of similar property in the same manner, and it especially does not void the legal guarantees of the property rights of others.
    If that were the case, one person choosing to let another squat on his land for free could be taken to justify suggesting that no land should be private.
    Clearly that is unacceptable, so it is thoroughly disingenuous to use an example of one person giving away their property as justification for suggesting that any others should have no property right at all.

    How do you know this? How do you know he would not have gone to work for a company? Why is monopoly necessary for innovation?

    There are a lot of stories out there (having nothing to do with patent trolls per se) of monopolies erecting barriers to innovation.

    But that will all be in an upcoming post.
    Patterico (9c670f)

    It is easy enough to note that historically, monopolies can stifle innovation.
    Of course that is presumed for unlimited and absolute monopolies, which tend to be more theoretical than actual.
    In particular we are talking here about a monopoly only for a particular period of time.
    Seven years is not that overwhelming.
    Seventy years certainly would be, and that is most definitely an issue with copyright, but the starting point here is patents. (Though let us note that the source you cite does in fact want ALL IP protection voided.)

    However, as I am sure you are aware, “sometimes” is not “always”.
    There was a technology monopoly on Betamax tapes.
    And a competitor invented VHS.
    There was a market monopoly on VHS.
    And a competitor invented DVD.
    There a technology monopoly on DVD.
    And someone invented BluRay.
    Rather than stifling innovation, those monopolies drove it in an effort to get a better market position.

    Now perhaps if, using that old example from Heinlein, we prohibited cars because someone’s horsewhip business was threatened, then we would have an extremely dangerous problem with patent monopolies.
    Again though, no such issue exists here, so such an extreme is not a valid argument against patents.

    Sam (e8f1ad)

  100. Above was in reply to Patterico in 87 & previous; now replying to 91.
    US patents have maintenance fees (3-4 years, 7-8 years, and 11-12 years).
    If these aren’t paid, the patent expires early.

    Ibidem (ad711d)

  101. Here’s my take on patents and copyrights: I believe the Constitution covers them very specifically in that it advocates for them, and for just reasons.

    Let the person with the patent and copyright make his/her hay with the patent/copyright for the set period of time. It’s his/her idea and he/she should be the one to profit by it. But limit the time for the patent/copyright by limiting the number of “re-ups” that can be had. It’s long since been time for “Happy Birthday To You” to be public domain, for instance.

    The same part of the Constitution that prescribes patents/copyrights is used to promote Governmental grants, despite the lack of call for it in the Constitution. Those grants fly in the face of another part of the Constitution which states everything not enumerated is not permitted.

    John Hitchcock (5131d7)

  102. Patterico@95:
    Monsanto and Pioneer (these days a DuPont subsidiary) are the main businesses in corn and soy seed.
    Seed’s more expensive, yes.
    But yields are up by tremendous amounts: the last record I’ve heard of is 454 bushels to an acre. When I interned at Pioneer in 2009, I saw a sign referring to a record in the range of 350+ bushels.
    The reason that Monsanto has such a large share of the market is that their seed was worth what they charged for it: between the 10 different selective herbicides you don’t need when you can spray glyphosate, it’s cheaper to buy Roundup Ready seed, and the better weed control means that you get higher yields.

    For the record: MON810 (Roundup Ready corn) goes off patent this November; Roundup Ready 1 soybeans go off-patent in March.
    One company that breeds soybeans was saying that their best variety is Roundup Ready 1; they expect a ~$10 reduction for the cost of a currently $40 sack of seeds.

    Patterico@96: That was intended to sum up what little knowledge about the general topic I laid out.

    Ibidem (ad711d)

  103. 95.Monsanto controls the overwhelming majority of soy and corn production and has made it far more expensive. Somehow I think seeds were made and sold before they could be patented and people survived. What didn’t happen is what is happening now, with Monsanto suing farmers for pollination that occurs naturally.
    Patterico (9c670f)

    Well . . . no.

    Monsanto made better soy and corn.
    They control the overwhelming majority of better soy and corn production.
    Yes, seeds were made and sold before Monsanto patented their improved forms.
    Don’t like the Monsanto forms?
    Feel free to make your own.
    Nothing in Monsanto’s patents prevents you from developing your own form of weed killer like Monsanto has, then developing your own form of soy and corn that is immune to that weed killer like Monsanto has, then developing your own form of enhanced yield soy and corn like Monsanto has, and then selling it for less than Monsanto does and without a limited license as Monsanto does.

    And actually, while people didn’t sue over such things, they did in fact go to extreme lengths to protect such things.
    Silkworms were smuggled out of China to the Byzantine Empire to begin the silk industry in the West.
    Horse breeders would sell mares or geldings but not stallions.
    Such things were extremely important and valuable to their owners, and were very carefully protected. I expect they did considerably worse than bring a tort claim against anyone engaging in industrial espionage or acquisition.

    Sam (e8f1ad)

  104. John Hitchcock@101, Tom@52:
    The question is not whether we can abolish patents, but if we should.
    The Constitution has been wrong, and it has been fixed (see: slavery); just because it grants Congress power to grant exclusive rights to inventors on the grounds that it will encourage invention does not mean that this will in reality encourage invention.
    Should patents turn out to be a Constitionally mandated impediment, an amendment would be the proper response.
    However, it’s my understanding that the power does not constitute a requirement of its exercise (consider that Congress has the power to declare war).

    Further, it’s quite possible that the existing laws are not optimal, and can be adjusted.

    Ibidem (ad711d)

  105. Sam: for smuggling certain types of rice, silkworms, etc. the penalty was death.

    There are several types of herbicide-resistant corn/soy; some tolerate ALS herbicides (Pioneer is one developer of these), “Liberty Link” tolerates glufosinate which is related to glyphosate (Roundup); there are numerous “plant-incorporated pesticides”–the main example of that is Bt corn, where they took the insect-toxic genes from Bacillus thuringiensis.

    Ibidem (ad711d)

  106. I do not believe patents or copyrights are Constitutionally mandated. I believe they are Constitutionally advocated and the authority specifically given. There’s a difference between being specifically granted authority to do something and mandating it be done. And, again, I advocate for patents and copyrights, but on a limited time-frame.

    But it is clear to me, based on my reading of the Constitution, that Government grants for wind farms and ethanol and corn production and land non-production and cowboy poetry are specifically Unconstitutional.

    John Hitchcock (5131d7)

  107. Happy Birthday might could become public domain in short order, and possibly retroactively to 2009

    happyfeet (8ce051)

  108. The Theory of Relativity is not an invention.
    It is an observation.
    A rather profound observation, with far reaching effects on science as a whole, but still just an observation and not an actual invention.

    As the kids say (or at least used to say): duh. Exactly my point.

    Why would someone do scientific research without a patent incentive, but we take it for granted that nobody would invent anything without a patent monopoly incentive?

    See the point?

    Patterico (9c670f)

  109. But that doesn’t actually address the issue.
    Just because any particular individual, or even a significant number of individuals, is willing to provide an intellectual service for free in no way means others should not have protection for their efforts.
    Just because some lawyers work pro bono is no reason to declare that all legal work should be provided free of charge, is it?

    I’m not talking about forcing people to work for free.

    I’m talking about whether it is necessary for government to step into the marketplace and distort it by granting a monopoly for exploitation of an idea.

    It’s not self-evident to me that it is — and there is plenty of evidence of deleterious side effects.

    Patterico (9c670f)

  110. 92.There is always a first-mover advantage. The ability of firms to swoop in and immediately recreate products is overstated. It usually takes years (maybe four).

    And yet those follow up firms do swoop in and recreate products.
    And take over industries created by others.

    Doing a bit of checking, the Wright Brothers aircraft company . . . doesn’t make aircraft anymore. It fell behind when technology shifted to jets and sold its aircraft division in 1948.
    39 years from patent monopoly to parts supplier.

    Nobody stays on top forever.

    The question is whether the monopoly is worth the cost to innovation, the lack of standardization, the trolls, and the attempts to completely shut down useful businesses.
    Patterico (9c670f)

    The trolls and attempts to completely shut down useful businesses are abuses of the legal system, and do not stand as compelling arguments as stated previously.

    Lack of standardization is not merely irrelevant but touches on the ridiculous.
    Should all firearms be the same caliber? Should they all use the same mechanism? Should they all use the same propellant formula?
    Should all cars come with the same options? Should they all have the same type of tires? Should they all be made of the same materials?
    Should all breakfast cereal be the same? All spaghetti sauce? Should we have only one type of citrus fruit?
    Should Windows be open source so we can end the scourge of Macs forever? (Or vice versa.) (LINUX!)

    Cost to innovation is exceptionally hard to impossible to actually prove. How exactly do you know what someone would have done if the laws were different? How do you know what effects would have taken place? How do you know what other advances would not have been negated without the patents?

    Sam (e8f1ad)

  111. Seven years is not that overwhelming.

    How about 20?

    Patterico (9c670f)

  112. 108.As the kids say (or at least used to say): duh. Exactly my point.

    Why would someone do scientific research without a patent incentive, but we take it for granted that nobody would invent anything without a patent monopoly incentive?

    See the point?

    No, because you comparison fails.

    Why would someone do such a thing?

    Many reasons:
    Bragging right.
    For the challenge
    They had the free time
    It was socially prestigious
    They got a research grant and were getting paid even if it wasn’t via exploiting a patent or copyright

    Just because none of them are your reasons or my reasons in no way means they are not someone else’s reasons.

    109.I’m not talking about forcing people to work for free.

    I’m talking about whether it is necessary for government to step into the marketplace and distort it by granting a monopoly for exploitation of an idea.

    It’s not self-evident to me that it is — and there is plenty of evidence of deleterious side effects.
    Patterico (9c670f)

    No, you are just saying their labor doesn’t deserve protection while the labor of other people does.

    You are talking about whether it is necessary for government to step into the marketplace and distort it by recognizing some contracts but not others.

    Why is one person’s labor to improve land different from one person’s labor to improve knowledge such that the government should step in to support the one but not the other?

    It is not self-evident to me either – I never take any such issue as an article of faith.
    It derives from careful examination and comparison to similar situations along with consideration of the effects both positive and negative.

    Sam (e8f1ad)

  113. Forbes: It can cost more than $5 billion to bring a drug to market

    Mostly because of the FDA’s clinical trial process.

    Patterico (9c670f)

  114. Why is one person’s labor to improve land different from one person’s labor to improve knowledge such that the government should step in to support the one but not the other?

    Property is scarce. Ideas are not. You and I can make a cake from the same recipe. A million people could.

    Patterico (9c670f)

  115. Regarding lack of standardization: you can have things be uniformly bad, or you can have some things good and some things crap.
    Regarding cost of innovation: there’s also the cost of non-innovation, which abolishing patents will cut in the short run (anyone can copy anything, if they figure out how someone else did it) and may raise in the long run (someone who keeps a trade secret secret instead of patenting it).

    Ibidem (ad711d)

  116. “Monsanto controls the overwhelming majority of soy and corn production and has made it far more expensive.”

    Patterico – Just thirty years ago that seed market was a lot more competitive. What happened? Monsanto’s R&D paid off big time, but Monsanto has broadly licensed its glyphosphate resistance(Round Up Ready) technology to other seed companies including DuPont Pioneer, the country’s largest seller of hybrid seeds. Over the past 30 years Monsanto acquired competitors DeKalb and Cargill’s seed business.

    daleyrocks (bf33e9)

  117. “Property is scarce. Ideas are not.”

    Patterico – Property is unique, not scarce. Although there is a finite supply, it is not scarce. Ideas are also unique, but not scarce.

    daleyrocks (bf33e9)

  118. Patterico @114: and that’s the argument for drug patents: if you spend $5 billion on getting it to where it can be marketed, you can’t afford to rely on first mover/the short delay before others can synthesize it. They could find out your plans long before it gets approval.

    Ibidem (ad711d)

  119. Patterico@108: STRAWMAN!
    The argument is not “no one will”, but “fewer will”.

    Ibidem (ad711d)

  120. 112.Seven years is not that overwhelming.

    How about 20?
    Patterico (9c670f)

    *shrugs*

    70 is too much.
    0 is too little.

    Clearly some testing and such should be done to find what the optimum term is.

    Declaring a ultimate goal of complete abolition from the start is pretty much destructive of any proper investigation.
    And that is the problem.

    Sam (e8f1ad)

  121. To elaborate on 119:
    If it’s mostly the FDA, it’s not going away if/when patents do.

    Ibidem (ad711d)

  122. 115.Property is scarce. Ideas are not. You and I can make a cake from the same recipe. A million people could.
    Patterico (9c670f)

    How many people can make a good cake?
    How many can make a delicious cake?
    How many can make a new recipe for a delicious cake that a million people could follow and consistently make a delicious cake?

    It would appear that ideas can be scarce as well.

    Sam (e8f1ad)

  123. Patterico – Property is unique, not scarce. Although there is a finite supply, it is not scarce. Ideas are also unique, but not scarce.

    Of course property is scarce — in the economic sense. Scarcity refers to the problem that there are unlimited human desires but only limited resources. Land is a limited resource. Only so many people who want to use it can use it, creating the potential of conflict over its use.

    How many people can make a good cake?
    How many can make a delicious cake?
    How many can make a new recipe for a delicious cake that a million people could follow and consistently make a delicious cake?

    You also misunderstand what is meant by scarcity in the economic sense. Once an idea is out there, anyone can use it without having to prevent someone else from using it. That’s the point. There is no conflict over its use, so it is not economically scarce.

    Patterico (9c670f)

  124. Patterico – Just thirty years ago that seed market was a lot more competitive. What happened? Monsanto’s R&D paid off big time, but Monsanto has broadly licensed its glyphosphate resistance(Round Up Ready) technology to other seed companies including DuPont Pioneer, the country’s largest seller of hybrid seeds. Over the past 30 years Monsanto acquired competitors DeKalb and Cargill’s seed business.

    The main thing that has changed are laws about what can be patented.

    Patterico (9c670f)

  125. And let me amplify:

    Just as not all land is of equal value;
    Just as not all cakes are of equal value;
    All ideas are not of equal value.

    A recipe for a cake is of far different value than a hybrid seed with twice the yield.
    A better mouse trap is of far different value than a computer.
    A limerick is far different value than a Shakespeare play.
    A cure for cancer is of far different value than a band aid.

    Ideas as a whole may not be scarce;
    Good ideas are;
    Great ideas that change entire fields of science or business?

    Sam (e8f1ad)

  126. Ideas as a whole may not be scarce;
    Good ideas are;
    Great ideas that change entire fields of science or business?

    Please re-read the economic definition of “scarce” I set forth. It is not equivalent to “rare.”

    A great idea that changes an entire field of science can be used by anyone who wants to use it (unless government intervenes). There is no natural conflict that would arise over its use, because you can use it, and daley can, and I can, all at the same time.

    Patterico (9c670f)

  127. To elaborate on 119:
    If it’s mostly the FDA, it’s not going away if/when patents do.

    Patents aren’t going away either. Crony capitalism will see to that.

    But they should. So should the FDA.

    Patterico (9c670f)

  128. 124.You also misunderstand what is meant by scarcity in the economic sense. Once an idea is out there, anyone can use it without having to prevent someone else from using it. That’s the point. There is no conflict over its use, so it is not economically scarce.
    Patterico (9c670f)

    Really?

    The idea for the law is out there.
    Does that mean anyone can be a lawyer?
    If I claim to be a lawyer does it have no impact on your ability to use the law? (As in being competition for the scarce market for legal talent.)

    I do understand what is meant by scarcity.
    What you fail to understand is that ideas do not function on their own.
    They require some application to be projected into the real world.

    Let’s say Monsanto’s seeds were no longer protected by patent.
    Could you whip a copy up in your genetic engineering lab tomorrow?
    Hmmm . . .

    And let us note, there is “unlimited human desire” to access the ideas of other people, but only limited people with the ability to come up with those ideas or the resources to develop them.
    Further, while it more directly manifests with copyright, there is in fact conflict over the use of ideas. If you sell my idea to a person then I cannot sell that same idea to him.
    As such, scarcity very much does apply.

    Sam (e8f1ad)

  129. Abolishing patents is more socialistic than keeping patents.

    If I have the same opportunity to generate wealth from all the hard work you did, without lifting a finger to do any of that work myself, then that is socialism.

    Or, the age-old story of the Mother Hen who wanted help making a loaf of bread. Nobody wanted to help, everyone wanted some of the bread. She and her family did all the work, and shared none of the benefits.

    John Hitchcock (5131d7)

  130. A monopoly is more socialistic than the unhampered free market?

    Ideas are typically a dime a dozen. Implementation is what matters. Capitalism will see to it that the people who can implement the idea are rewarded.

    Patterico (9c670f)

  131. Bread is scarce, and so even a free market needs a legal syst for enforcing contracts and property rights.

    Ideas are not scarce.

    Patterico (9c670f)

  132. People’s, and lawmakers’ experience, on which law is based according to Justice Holmes, is not limited to patent history. The human experience is that people work best when they work in their own best self-interest. People’s experience is that economic systems (as opposed to political systems) which try to define the best self-interest as the common weal fail. To put it another way, the monkey will climb the tree and pick fruit if he can get to keep most of it when he comes back down, but not if the rest of the pack will take it all or seemingly all.

    nk (dbc370)

  133. “Monsanto controls the overwhelming majority of soy and corn production and has made it far more expensive. Somehow I think seeds were made and sold before they could be patented and people survived. What didn’t happen is what is happening now, with Monsanto suing farmers for pollination that occurs naturally.”

    People are free to buy non-Monsanto, non-Patented seed. It just has a different yield. But this is definately a case of first-mover disadvantage. The amount of advantage/disadvantage is going to vary by product and market conditions, of course.

    nops (1467a4)

  134. ==Well with seed corn its a first mover disadvantage. One guy puts a lot of effort into inventing the expensive seed, you buy the expensive seed, and I buy the cheap corn people don’t eat and plant that.==

    I see you don’t know much about seed and crop production –or farming– or economics– but as is typical you are weighing in anyway, nops, even though your comment makes no sense whatsoever.

    The seed corn brands and types sold today are not separated by “cheap” and “expensive”. They are separated by what each has been carefully engineered to do and what specific farmers need: i.e. it produces better and healthier crops in a certain soil type, or grows a crop more resistant to certain pests that may inhabit only a specific geographical area, or generally performs better in wetter than optimal or dryer than optimal conditions if that is what is predicted for the season or is obvious in the field’s contours. Many farmers plant several different seeds within the same crop field to accommodate the different soils present and the historical drainage on that land.

    elissa (76c516)

  135. Beldar–I noted and very much appreciated your Emily Litella reference. And FWIW, at first glance I initially read the thread title as “patients”, too!

    elissa (76c516)

  136. 132.Bread is scarce, and so even a free market needs a legal syst for enforcing contracts and property rights.

    Ideas are not scarce.

    Ideas are typically a dime a dozen.

    The very core of your argument against them being scarce is not merely that they have value, but that the exclusive control of them enhances that value. More, that exercising exclusive control over them affects the overall market system.
    That isn’t me making some wild claim out of nowhere, that is part of your core presentation – that there is value involved.
    You complain that Monsanto is profiting from its exclusive control of seeds yet insist they will not suffer from the loss of their monopoly; that there is no conflict over the use of their idea.

    Declaring there is no scarcity involved because multiple people can employ the idea fails on the simple grounds that I have presented – quality and opportunity.
    Bread is not scarce, but good bread is more scarce than bread in general.
    Bread is not scarce, but there is a finite demand and the demand in any particular location can be fully satisfied.

    The only way you can forward your assertion is by denying these other factors in favor of asserting that only one is possibly relevant.
    While such parsing is certainly possible, it results in such absurdities as Marxism, wherein labor is all assumed to be of absolutely equal value and to provide absolutely equal advantage.
    It just isn’t so.
    All ideas are not of equal value.

    Sam (e8f1ad)

  137. Just an observation: Talking about U.S. patents and the U.S. patent office and U.S. patent law in an increasingly global economy, where borrowing ideas and creating fake products is rampant, and where even certain governments engage in industrial espionage is perhaps an awfully narrow focus?

    Kalashnikov rifle? Sikorsky helicopter? etc.

    elissa (76c516)

  138. And FWIW, at first glance I initially read the thread title as “patients”, too!

    I at first thought this blog entry was about Obamacare or something like that.

    BTW, my respect for litigious scamsters, lawyers, politicians and members of the news media doesn’t extend much beyond this.

    Mark (14a4db)

  139. Ideas *are* scarce, in the economic sense. There actually aren’t unlimited ideas at any given time, and to develop an idea takes knowledge, insight, time, energy and physical resources to make it useful. Time is scarce, insight is definitely scare, time is scarce, energy is scarce, and resources are by definition scarce.

    Use is not where scarcity comes in. Scarcity is relevant to *creation*. Patents are a recognition that there is no natural enforcement of scarcity to reward creation. If I grow corn and my corn is stolen, I’m missing corn. What does that corn represent? It represents everything I put into the creation of the corn. The corn itself was the reward for my efforts.

    What if I create a new machine that moves people around? Actually constructing the developed machine is only a small part of the effort that went into it’s creation, so the machine itself is not really a reward for my efforts to create.

    If someone else can buy my first machine, take it apart, copy it and come up next to me selling the same thing for just above the cost of physical production, where is my reward for creating it? Why would I have spent all that time creating a device that grants a huge benefit to society without any return to me?

    The patent system is intended to *create* the reward for invention.

    Again, I remind you – there was almost no innovation in human life, people in the 14th century AD lived largely like Romans in the 1st or Greeks in the 7th century BC, until the development of a patent system of invention in the middle of the 15th century.

    Of course the patent system is abused. That’s what reform is for. The PTO is prohibited from granting patents on functions, but they do. The Federal Circuit uses the wrong standard on appeal, and the Eastern District of Texas violates the Rules of Civil Procedure. Before we trash the system, maybe we should start punishing the people *within* the system for flouting the rules.

    JWB (c1c08f)

  140. This is intended as a partial answer to Boldrin and Levine as a basis for the conclusion that abolishing patents is the optimal outcome.
    My alternative proposal:
    (1) all patents must be accompanied by a functional implementation which they describe
    (2) the patent cannot claim anything beyond the novel features of the implementation which accompanies the patent
    (3) patents exclude all trade secrets
    (4) existing patents which form the basis of an implementation must be disclosed, or else the patent-holder is estopped from defending them
    (5) when the patent expires or lapses, no protection alternative to the patent and prior patents that it expands on is available. (In other words: no copyrights can apply to sample implementations. Due to the “novel features” rule, there cannot be later patents on it; but a lapsed patent could expand on an earlier patent that continues. But when a patent expires, anyone can copy the implementation.)
    (6) the implementations and models are available for public study (perhaps this should specifically make national security unpatentable, and the reciprocal also seems reasonable…)
    (7) when prosecuting infringement, the patent-holder must show similarity in relevant detail: if they can’t show how the alleged infringing implementation is novel in the same way that they described in the patent and demonstrated in the reference implementation, they didn’t prove infringement
    (8) patents shall not trump anti-trust, but must be scrutinized in the light of the overall market; a party holding patents sufficient to dominate a market may be required to license them or be broken up; patents are the right to profit from a new solution, not the right to monopolize it without licensing.

    Ch. 4:
    My background is in agriculture (an AS in ag, internship at Pioneer, and a BS in ag with an option in crops), so I’ll focus on the section where that’s relevant.
    Boldrin and Levine provide a graph showing corn yields over the past ~century; they claim that prior to the climb in the 1940s, improvements were offset by marginal lands.
    They omit or are unaware that beginning in the 1970s, several factors came into play: the predominant method of producing hybrid seed (cytoplasmic male sterile hybrids) became temporarily unavailable because it relied on one gene line that was vulnerable to a disease; with the spike in oil prices, fertilizers, pesticides, and application became much more expensive; and cultivated land started wearing out.
    More importantly, the graph I have of average US corn yield, 1900-1999 disagrees with Boldrin and Levine. It shows an increase from 80 bu/ac in 1970 to 140 bu/ac in 1999 (Figure 12.2, page 292, Principles of Field Crop Production 4th ed.)

    Ch. 5:
    I’m not an expert in the areas they address here, but a good deal of this seems like obfuscation.
    I can say that, contrary to their assertion, the Amazon patent actually tells me how it works (the browser has a long-lived cookie saying “this connection comes from the guy with this account”, the server looks up the account.)
    Also, fear of patents can work as an incentive to publicize information; this is a point they bring up supposedly to defend the proposition that patents reduce publicly available information. The proposition that patents are beneficial does not rest on all the benefit accruing to patent holders.

    Ibidem (9d5b24)

  141. Ideas *are* scarce, in the economic sense. There actually aren’t unlimited ideas at any given time, and to develop an idea takes knowledge, insight, time, energy and physical resources to make it useful. Time is scarce, insight is definitely scare, time is scarce, energy is scarce, and resources are by definition scarce.

    Use is not where scarcity comes in. Scarcity is relevant to *creation*. Patents are a recognition that there is no natural enforcement of scarcity to reward creation. If I grow corn and my corn is stolen, I’m missing corn. What does that corn represent? It represents everything I put into the creation of the corn. The corn itself was the reward for my efforts.

    Interesting argument. I’ll first note that even among pro-free market people, there is disagreement on this issue, with some people disagreeing with Kinsella and arguing that ideas are indeed scarce. I tend to be persuaded by Kinsella but I am open to having my mind changed; I’m arguing in favor of these ideas not because I am dead-solid convinced by them, but because I am provisionally convinced and want to test the ideas in debate.

    That said, let me make a counterargument. Because I don’t want to make the comments too long I will do it in a separate comment.

    Patterico (9c670f)

  142. OK, I looked at their graph (pg. 10 of ch. 4) again. I’m wondering why they jump straight from 1960 to 1980 where they should have put 1970, as well as why they average by the decade.
    Also, remember the records I mentioned?

    Anyhow, on to Monsanto:
    Monsanto’s traits have a large majority of the market, but most of this is licensees; many licensees breed their own varieties with multiple traits (for example, Roundup Ready/Herculex). (As I recall, Monsanto sells ~40% of seed, while another 40% of the market licenses their traits.)
    To say that this is wrong because it is control of the market, while claiming that if patents did not exist inventions could spread, cannot be consistent unless your premise is that the inventor profiting from the spread of his inventions is wrong.
    Without that assumption, the case of Monsanto stands as refutation.

    Full disclosure: Several years ago I worked at Pioneer Hi-Bred, which is the other large corn seed company.

    Ibidem (9d5b24)

  143. Ideas *are* scarce, in the economic sense. There actually aren’t unlimited ideas at any given time, and to develop an idea takes knowledge, insight, time, energy and physical resources to make it useful. Time is scarce, insight is definitely scare, time is scarce, energy is scarce, and resources are by definition scarce.

    Use is not where scarcity comes in. Scarcity is relevant to *creation*. Patents are a recognition that there is no natural enforcement of scarcity to reward creation. If I grow corn and my corn is stolen, I’m missing corn. What does that corn represent? It represents everything I put into the creation of the corn. The corn itself was the reward for my efforts.

    The definition of scarcity I have been using is the characteristic of there being limited resources to satisfy unlimited desires, creating the potential for conflict over the use of the resources that do exist. This is true of time, physical resources like steel, and many other things.

    When you say “insight is scarce” it satisfies the first part of that definition but (depending on how you define it) not the second. The same is true of ideas.

    Once someone has an insight, that particular insight is not scarce; anyone can use it. If someone, say, comes up the insight that letting water soak in a cast iron skillet will make it rust, anyone can use that insight. If someone comes up with a good way to remove that rust, anyone can use that insight if they want. Unless government comes along and confers a monopoly on use of these insights, anyone in the world can use them if they want to, and there will be no conflict over their use.

    However, in general, you could say that humans have an unlimited appetite for good new ideas and insights, and that the supply of those ideas and insights is limited. So you could argue “scarcity” in that sense — and that is what you have done: argue scarcity of creation. Fair enough.

    What we have done here, I think, is narrow down the necessary protections that government must put in place, and create an opportunity to debate the necessary remaining protections.

    There are basically three concepts we are discussing here, I think: 1) resolving conflicts over limited resources, 2) rewarding people for the “fruits of their labor”; and 3) creating incentives for the creation of resources (whether they be ideas, materials, goods, etc.) I think it’s important to keep these distinct.

    When I have invoked scarcity and the lack thereof here, I have been responding to this argument made by daleyrocks:

    What about state granted monopoly privileges to land? Does the author believe those type of property rights are absurd?”

    and this by Sam:

    Why is one person’s labor to improve land different from one person’s labor to improve knowledge such that the government should step in to support the one but not the other?

    In responding to these objections, I have invoked “scarcity” because I am at pains to show that, in dealing with property rights in land, we are looking primarily at #1 of the three concepts (which are, again: 1) resolving conflicts, 2) rewarding labor, and 3) creating incentives). Thus “state granted monopoly privileges to land” are actually nothing more than a system of property rights, which is necessary to deal with issue #1. When there exists something like land or goods that are limited, and people might fight over their possession and use, we need a system of contracts and property rights to allocate rights to their possession and use, so we can resolve these disputes in an orderly fashion without resorting to violence.

    When we’re talking ideas, we aren’t talking about concept #1. They aren’t scarce under the definition I have been using, but their creation is under the definition you have been using. Your definition is a #3 issue, and arguably a #2 issue as well. But it’s not a #1 issue. (If you can come up with better terms to describe what we’re talking about, feel free — but terms like “limited” and “scarce” or “rare” have created confusion in our discussions so far, because they conflate the concept of rarity in creation (which I would call a #3 issue) with the concept of rarity in use (which I would call a #1 issue: will there be conflicts over their use?)).

    I’m going to wrap up the comment without having explored all these ideas fully so it’s not so long that nobody will read it (too late?). Kinsella addresses the #2 concept at the link in the post, which I encourage everyone to listen to who is really interested in this topic. As for #3, that is an empirical question. People seem to assume that patents are necessary and beneficial. Boldrin and Levin challenge this, and I am interested by their challenge. As I understand the work of Boldrin and Levine, monopolies on exploitation of ideas might have a tiny and almost unmeasurable positive effect on the incentive to create an original idea that has never been thought of, but they meaningfully stifle innovation of the type that builds upon a pre-existing idea. I think it’s intuitively obvious that most human improvements are of the latter sort, and therefore that patents tend to retard the latter, more meaningful types of developments.

    I am interested in the community’s thoughts — and I’m very pleased that this topic has created such a lively debate.

    Patterico (9c670f)

  144. Ibidem,

    You are so far out of my area of expertise that I won’t be able to respond meaningfully. Which is not to say that you don’t have a point; it’s just that it’s hard for me to follow, because of my lack of familiarity with the area. What I do encourage you to do, though, is to contact Boldrin and Levine with your objections. Make them as concise and clear as possible, and see if you can get them to respond. If you can, I’d love to see the interchange, and I would find a way to report on it here.

    Patterico (9c670f)

  145. This link makes, in a short and compelling fashion, the very point I was trying to make at the end of the long comment above:

    The key point that we’ve made is that innovation is an ongoing process of improvement upon improvement upon improvement. Locking up any of those steps and giving the idea associated with it a price actually slows down innovation (often by a great deal) by delaying that ongoing process and adding needless friction to it.

    Yup. That.

    It is the genius of the human race that everything we do to innovate is like a well-run wiki — subject to occasional flaws from pranksters or doofuses, but in general a team effort that builds on the work of those who have gone before. No one human can begin to understand all human knowledge, or even all human knowledge in a particular area. But we’re very good at innovating in ways that build on the work of others. This requires constant experimentation, though. And when you lock down the process for 20 years at a time, based on a unproven notion that it’s necessary to reward people for one particular improvement, you stifle that innovation. There are countless examples of this in history, from the airplane to the steam engine and beyond. Patents, in my view, stifle this critical aspect of innovation — and the price has not been proven to be worth the cost.

    Patterico (9c670f)

  146. When some talk about “ideas” being different than “things” in the context of this discussion I immediately think of the cartoon balloon lightbulb over a character’s head that has been used forever in comics to denote a bright idea. Whether the bright idea was Whitney’s cotton gin or Bell’s telephone or Atari’s joystick or Andreessen’s Mosaic wasn’t one of those lightbulb thingies present at the creation?

    elissa (76c516)

  147. Did Edison invent the lightbulb above the head?

    (I bet he tried to claim credit.)

    I feel a week-long five-part series coming on . . .

    Patterico (9c670f)

  148. I hate software patents with a deep and abiding passion.

    But I think that *pharmaceutical patents* are essential – there’s no way big pharma is going to invest in new drug development without the guaranteed return provided by a patent. Too many drugs fail, and the process of developing them is too expensive. Abolishing patents means the end of pharmaceutical innovation.

    The argument I have heard is that countries that have been very successful in pharmaceutical innovation, like Italy and Switzerland, had no stringent patent protection at a time when they were great innovators. I’ll write about this in the coming week, I think.

    Things may be different in the United States, of course, with the giant regulatory apparatus we have. But isn’t that an argument about the FDA and not about patents?

    Patterico (9c670f)

  149. Still would like some commenting from people on the relevance or lack thereof of U.S. issued patents in a global economy where China and Russia some countries routinely ignore them and copy them and steal industrial secrets anyway. I sorta raised this in #138 where I suggested that just focusing on U.S. patent law or reforming it may be too narrow a discussion and perhaps a little arrogant of us.

    elissa (76c516)

  150. Patterico@144:
    I’ll use your numbering of the three concepts.
    You argue that private land ownership is primarily about #1, resolving conflict.
    But consider that most alternative systems relied on a temporary allocation of land;
    one example of this is the old “commons”. Up to the 16th to 18th centuries, a good
    deal of English land was held in common, including some fields; the village government
    would allocate a portion of the commons to each villager by lot. This handles #1
    fairly well, but, as the Pilgrims noticed, it does not solve #2 or #3.
    Private property creates incentives to improve land (3) by rewarding the labor (2)
    expended in pursuit of this. So when English farmers acquired title to their lands,
    the result was a tremendous increase in agricultural production as farmers devised
    better ways to irrigate, drain, fertilize, and cultivate their lands.
    Without this increased production, the Industrial Revolution would have been limited by food.

    Ibidem (9d5b24)

  151. Right: the “commons” is socialistic, and what you have described is like what Communist China used to be like. Once Party leaders realized that a small band of farmers were increasing productivity by defying the government and asserting ownership in the fruits of their labor, the seeds of capitalism in China were planted.

    So what this is really about, I think, is the empirical case for whether a government-granted monopoly on the exploitation of ideas is necessary for innovation, the way a government-granted monopoly (enforcing property rights in land) is necessary for efficient use of land resources.

    It’s certainly intuitive that rewarding ideas with an exclusive right to exploit them would encourage ideas. But the question is whether this intuition is empirically correct.

    Boldrin and Levine say no. That innovation consists of a process of building upon previous innovations, and that it is squelched by freezing the process.

    Patterico (9c670f)

  152. 144.Once someone has an insight, that particular insight is not scarce; anyone can use it. If someone, say, comes up the insight that letting water soak in a cast iron skillet will make it rust, anyone can use that insight. If someone comes up with a good way to remove that rust, anyone can use that insight if they want. Unless government comes along and confers a monopoly on use of these insights, anyone in the world can use them if they want to, and there will be no conflict over their use.

    Let us apply that back to your example of making a cake but with a slight shift to that of making bread.
    Did someone come up with the idea of making bread?
    Yes.
    Can anyone make bread?
    Yes.
    Therefore there is no scarcity in . . . bread?
    Uh oh!

    The same with Monsanto and seeds.
    Did someone come up with the idea of corn?
    Yes.
    Did someone come up with the idea of improving corn?
    Yes.
    Therefore there is no scarcity in corn!
    No, that doesn’t work either.

    Let’s test it with something completely ephemeral, my example of lawyers.
    Did someone come up with the idea of law?
    Yes.
    Did someone come up with the idea of law school?
    Yes.
    Did someone come up with the idea of lawyers?
    Yes.
    Is there’re a scarcity of lawyers?
    Actually . . . no. At least not according to recent statistics about employment among law school graduates.

    Clearly there is something about these non-physical “templates” represented by ideas that, if not scarce in terms of ability to be used by multiples persons simultaneously, functions identically to absolutely physical scarce resources.
    There is in fact that conflict over their use that you cite as a critical factor.
    Not in the form of simultaneous use, but in the form of simultaneous profit, combined with the requirement for use of scarce resources to make the template functional.

    And note, you acknowledge that “use” is just as relevant as “possession””

    When there exists something like land or goods that are limited, and people might fight over their possession and use, we need a system of contracts and property rights to allocate rights to their possession and use, so we can resolve these disputes in an orderly fashion without resorting to violence.

    So even when your definition constructed to exclude IP winds up containing a base that acknowledges it is relevant.

    Sam (e8f1ad)

  153. Why stop at patents? Why not get rid of copyrights and trademarks, too? After all, just because some author has come up with a long and detailed story doesn’t mean he should be the only one profiting from his idea. If someone else can print up a bunch of books with the exact same story even cheaper, then isn’t that what the free market is all about? I mean, the idea for that book isn’t scarce, right?

    I don’t disagree that there are problems with the patent system in this country. But getting rid of patents entirely is not the solution.

    Chuck Bartowski (11fb31)

  154. 152.So what this is really about, I think, is the empirical case for whether a government-granted monopoly on the exploitation of ideas is necessary for innovation, the way a government-granted monopoly (enforcing property rights in land) is necessary for efficient use of land resources.

    And let’s explore this some more.

    How exactly does someone have an inherent right to exploit the ideas of someone else?
    How do they have a right to build off those ideas?

    You alluded to this when referring to the Wright Brothers and aircraft development.
    So what if the Wright Brothers stifled development?
    Nobody had an inherent right to build off their work.
    To assert so is, absolutely, socialist in concept.

    Take a more sandbox construct:
    Say I go off into the wilderness and come up with a new strain of apple that tastes like bacon.
    One day, a damaged apple that contains no seeds rolls beyond my property and is promptly eaten by some starving hiker lost in the wilderness next door.
    Not only does it save his life but it is absolutely delicious.
    He recovers and comes to buy more but I refuse to sell him any.
    Worse, I am Jewish, and have no desire to any of what I consider to be bacon flavored abominations.
    Does he still have a right to purchase them?
    Should the government stand with him to force me to sell them?
    That is actually pretty easy as it is my property and I can do with it as I please.

    But what if it is worse?
    What if one of my bacples provides a full day’s nutrition?
    What if one tree could feed a whole neighborhood for a year?
    What if they also cured the common cold plus provided full immunity to a dozen childhood diseases?
    Now in addition to simply being a tasty treat they have a very real social value above and beyond the simple attractiveness.
    Does anyone have a right to them?
    Can they be seized over my objection and intention to use the trees to keep me warm during the coming winter?

    Now take it to the end:
    Not only have I made bacples, I have defined the idea on how to make similar modifications in other plants and animals.
    My beef cows and potatoes require a tenth of the resources of normal and are health panaceas.
    And while I hate my failed bacples, I love me some steak and taters.
    Do people have a right to use my ideas, which does absolutely no damage to me or my ability to enjoy my herd of enhanced cows and super-taters?

    Can I be compelled to add to the body of scientific knowledge for the benefit of all mankind and why?
    Because it is economically advantageous?

    Sam (e8f1ad)

  155. Priority adjustment- if you’re not watching the little league world series right now you’re missing something wonderful. The game is for the U.S. championship and it’s been both excellent and riveting so far.

    elissa (76c516)

  156. Did someone come up with the idea of making bread?
    Yes.
    Can anyone make bread?
    Yes.
    Therefore there is no scarcity in . . . bread?
    Uh oh!

    Right: the materials used to make bread are scarce. That does not mean the idea of how to make it is.

    Did someone come up with the idea of law?
    Yes.
    Did someone come up with the idea of law school?
    Yes.
    Did someone come up with the idea of lawyers?
    Yes.
    Is there’re a scarcity of lawyers?
    Actually . . . no. At least not according to recent statistics about employment among law school graduates.

    So you’re just going to ignore the comments I have made in which I have explained the definition of scarcity and talked about scarcity of use vs. scarcity of production? Or do you just not understand what I am saying? Because you’re simply equating “scarce” with “a small number” which totally misses the point that I have gone to some trouble to make.

    The fact there are a lot of lawyers does not mean they are not “scarce” under the definition I have used. They most certainly are. If you want legal representation you will probably have to pay — a decent amount. It’s not abundant, like air. We need a market to allocate these scarce resources.

    I think you need to re-read some of my comments because you seem to have utterly missed or misunderstood my argument.

    Clearly there is something about these non-physical “templates” represented by ideas that, if not scarce in terms of ability to be used by multiples persons simultaneously, functions identically to absolutely physical scarce resources.
    There is in fact that conflict over their use that you cite as a critical factor.
    Not in the form of simultaneous use, but in the form of simultaneous profit, combined with the requirement for use of scarce resources to make the template functional.

    I *think* the point you are trying to make is that, although ideas can be used by anyone (and thus, by my definition, are not scarce), the implementation of those ideas requires resources such as flour (for bread) or land (for growing corn) or people (to become lawyers) that themselves are not unlimited. Correct. I agree with you. Ideas are not scarce but their implementation requires resources that are scarce.

    So . . . what, then?

    Patterico (9c670f)

  157. Why stop at patents? Why not get rid of copyrights and trademarks, too? After all, just because some author has come up with a long and detailed story doesn’t mean he should be the only one profiting from his idea. If someone else can print up a bunch of books with the exact same story even cheaper, then isn’t that what the free market is all about? I mean, the idea for that book isn’t scarce, right?

    I don’t disagree that there are problems with the patent system in this country. But getting rid of patents entirely is not the solution.

    You may be right, but your argument comes down to: 1) an analogy to another form of “intellectual property” that you assume we will all support, and 2) a declaration that it simply goes too far.

    I have not read arguments against copyright, and I have that “this is the way it’s always been and why change it?” attitude about it, as you probably do. I think your question is a good one and I will have to look at it — but I have to say that my gut reaction is that finished works are more about implementation and less about ideas. I will observe that Kinsella (who is a patent attorney) is against copyright too. I will read his arguments on that score as well and keep in mind the slippery slope argument — but I hope you will also critically look at copyright (as I will) and examine whether it’s worth keeping rather than simply assuming it, because that it is how it’s always been.

    Patterico (9c670f)

  158. How exactly does someone have an inherent right to exploit the ideas of someone else?
    How do they have a right to build off those ideas?

    You alluded to this when referring to the Wright Brothers and aircraft development.
    So what if the Wright Brothers stifled development?
    Nobody had an inherent right to build off their work.
    To assert so is, absolutely, socialist in concept.

    That’s a label and not an argument, and it assumes what it purports to prove: namely, that these ideas are property and should be treated as such. I assume you think it’s an outrage that the government seeks to strip these poor inventors of their “property” after 17 or 20 years? Should these ideas not live as long as the inventor? Why stop there? We allow people to bequeath property to heirs. Why not intellectual property? For all time, we should have to pay the heirs of any inventor if we use or build off their inventions, in perpetuity. Why not, according to your logic?

    Patterico (9c670f)

  159. Sam,

    I don’t quite understand the rest of your comment. I will answer this part, because I understand this part:

    Can I be compelled to add to the body of scientific knowledge for the benefit of all mankind and why?
    Because it is economically advantageous?

    No, you cannot be compelled to add to the body of scientific knowledge for the benefit of all mankind.

    Oddly, people do, even without patents. They even receive renumeration for it, somehow, even without government monopolies.

    Patterico (9c670f)

  160. I have not read arguments against copyright, and I have that “this is the way it’s always been and why change it?” attitude about it, as you probably do.

    Actually, my argument is not born from inertia (that’s the way it’s always been), but rather from the idea of fair compensation. Someone who comes up with a concept — be it a device, a song, a book, a work of art, a process, whatever — that no one has come up with before deserves to profit from his concept without unfair encroachment on it by vultures.

    What exactly constitutes unfair encroachment is something I cannot say. There’s an area where patent protection is a good thing, and an area where it’s bad. I’m willing to discuss where to draw the line, but throwing out patents entirely is, as I said, not the right solution.

    Chuck Bartowski (11fb31)

  161. Chuck Bartkowski,

    I believe (correct me if I’m wrong) that Shakespeare did not have copyright laws to encourage him to produce his works. However, some have argued that the existence of copyright laws might have prevented him from producing his works:

    [A]n awful lot of Shakespeare’s works are copies (sometimes directly) of earlier works. Sometimes they’re derivative, but other times, he copied wholesale from others. So the bigger question might not be if Shakespeare could survive all the file sharing going on today, but whether or not he’d be able to produce any of his classic works, since they’d all be tied up in lawsuits over copyright infringement.

    Furthermore, the reason Shakespeare was able to make money by selling tickets was because seats in a theater are a real scarcity, and selling real — not artificial — scarcities is still a damn good business model today.

    Food for thought. It’s interesting to reconsider things you thought you knew to be true.

    Patterico (9c670f)

  162. Actually, my argument is not born from inertia (that’s the way it’s always been), but rather from the idea of fair compensation. Someone who comes up with a concept — be it a device, a song, a book, a work of art, a process, whatever — that no one has come up with before deserves to profit from his concept without unfair encroachment on it by vultures.

    True, but do we know that government-sponsored monopolies are the only way? How about the free market and contract law? True, that might make it more difficult to get royalties — George Bernard Shaw expressed this in a humorous way: “…the cry for copyright is the cry of men who are not satisfied with being paid for their work once, but insist upon being paid twice, thrice, and a dozen times over.”

    I’m not positive that the free market could not come up with norms and ways to compensate artists for their creative work absent government-granted monopolies. And the link above confirms what I thought: Shakespeare had no copyright protection.

    Patterico (9c670f)

  163. I’ll just point out that if you do away with patent law, then you will have trollish lawyers looking for some other well to poison.
    So, maybe there is a good reason to do away with patent law, but the fact that some lawyers make a mess of it is not a good reason, that is a good reason to find a way to find consequences for trollish lawyers.

    In my simple-mindedness about the topic, I’ll just say that it seems there is often a lot of overhead to do research and development, and I do not see why many would like to spend a lot of resources with a slim opportunity to earn it back.

    MD in Philly (f9371b)

  164. No, you cannot be compelled to add to the body of scientific knowledge for the benefit of all mankind.
    Oddly, people do, even without patents. They even receive renumeration for it, somehow, even without government monopolies.

    Patterico (9c670f) — 8/23/2014 @ 2:59 pm

    Hmm. How often is that done by a research university using state or federal grant money, that in a sense we are all paying for it.

    MD in Philly (f9371b)

  165. To all concerned–Do you really think that using a four hundred and fifty year old author from another country is the best way to vet and test your ideas about modern patents and copyrights?

    elissa (76c516)

  166. We live in a world where Apple can collect over a billion dollars from Samsung for selling a phone with Apple’s patented features like a “home button, rounded corners and tapered edges.” Wut? And Apple can waltz into court and try to prevent Samsung from selling its phone at all because it contains these wonderful, special features that nobody could have ever thought of.

    Something needs to happen.

    Patterico (9c670f)

  167. Hmm. How often is that done by a research university using state or federal grant money, that in a sense we are all paying for it.

    Yes, under the way we have set up our society — which, I submit, is all %^&%ed up.

    To all concerned–Do you really think that using a four hundred and fifty year old author from another country is the best way to vet and test your ideas about modern patents and copyrights?

    Yes, because anyone who can to live to 450 is someone worth listening to.

    In all seriousness, the point is that copyright was not necessary to incentivize Shakespeare. Is there something about the country or time that he lived in that makes that conclusion wrong or inapplicable? If so, feel free to explain what that is. Otherwise, you have pointed out differences, but have not explained why those differences matter.

    Patterico (9c670f)

  168. Actually, I was going to use Shakespeare as a counter-example. One of the reasons his work lasted as long as it did is that everyone learned from his example – spending all that effort and energy writing and creating and producing didn’t pay well. It certainly paid just as well as copying, so everyone stuck to copying. Same reward, less effort.

    The problem of expiration is a difficult problem. On the one hand, *buying* all the patents you’d need to create your own invention would be impossible. But does the infringement happen at development or monetization? Should a patent cover technologies that develop from an invention, or just the invention itself?

    But that’s a reform issue, not an abolitionist issue.

    JWB (c1c08f)

  169. Patterico–I love you man but sometimes I think you’re just a little bit too nostalgic for those old sophomore year college all night bull sessions. :) Nobody else here’s talking about copyrights incentivizing that I can see. When Chuck Bartowski raised the issue of copyrights earlier it seemed very clearly to be in the realm of compensation and protection–not incentivizing.

    elissa (76c516)

  170. NYT, 2001:

    Drug company executives have complained that even when a gene is later found to be involved in a disease, they can be blocked by such patents from developing drugs that act on that gene or on the protein it produces.

    ”You start work in a certain therapeutic area doing some screening and then a patent will issue,” said Ronald A. Pepin, a former Bristol-Myers executive who helped initiate the collaboration with Athersys. ”You’re stuck. You either shut down your program or you try to get a license.” Dr. Pepin is now a vice president at Medarex, a biotechnology company that also is collaborating with Athersys.

    Peter Ringrose, chief scientific officer at Bristol-Myers, has said there are more than 50 proteins possibly involved in cancer that the company was not working on because the patent holders either would not allow it or were demanding unreasonable royalties.

    I’d be willing to bet patent law kills a lot of people.

    Patterico (9c670f)

  171. Nobody else here’s talking about copyrights incentivizing that I can see. When Chuck Bartowski raised the issue of copyrights earlier it seemed very clearly to be in the realm of compensation and protection–not incentivizing.

    Let’s let Chuck speak for himself. Chuck, you still here? Were you concerned about incentives? When you said this:

    Actually, my argument is not born from inertia (that’s the way it’s always been), but rather from the idea of fair compensation. Someone who comes up with a concept — be it a device, a song, a book, a work of art, a process, whatever — that no one has come up with before deserves to profit from his concept without unfair encroachment on it by vultures.

    Were you or were you not concerned that, without fair compensation, artists would not create art?

    Me, I don’t think it’s a stretch to say he was concerned. But if he wasn’t, he can say so.

    Patterico (9c670f)

  172. Actually, I was going to use Shakespeare as a counter-example. One of the reasons his work lasted as long as it did is that everyone learned from his example – spending all that effort and energy writing and creating and producing didn’t pay well. It certainly paid just as well as copying, so everyone stuck to copying. Same reward, less effort.

    Are you saying Shakespeare was poor?? That’s not my impression at all, though I am no expert. I was under the impression that he was fairly prosperous. Do you have evidence to the contrary?

    Patterico (9c670f)

  173. Sam,

    The Wright brothers correctly “observed” a law of nature, they didn’t invent flight but applied the laws of physics successfully

    EPWJ (fa0e23)

  174. Does anyone have contrary evidence for the assertion I made upthread that, before Switzerland and Italy provided patent protection for pharmaceutical products, they were great innovators (we’re talking here about the period from 1850 to 1980 or so)?

    If they had no patent protection but still did quite well in this area, doesn’t that undercut the argument that we need patents for pharmaceuticals?

    Patterico (9c670f)

  175. Similarly, the paint/coloring/dye industry flourished in Germany without patents, because they had to refine their production processes. It got to the point where we imported dyes from Germany during World War I, which is rather remarkable.

    Also aspirin was invented by the Germans.

    Patterico (9c670f)

  176. Ideas are neither patentable nor copyrightable, I thought. It is inventions which are patentable, and works of authorship which are copyrightable. Tangible* products, not lightbulbs over the head.

    Edison. Yes, my Serbian friends tell me all the time he ripped off Tesla. Edison’s lightbulb did not burn out within minutes. It lasted for weeks and months. It was useful, not a carnival sideshow curiosity.
    Wright brothers. Did they refuse to license their patents at all, or were they asking for a license fee? Because the second is not “stifling”.
    Shakespeare. Did he copy his plays word for word from somebody else? I don’t theenk so. The ideas came from history and myth but the words were his. I think it was like Cecil B. DeMille and the Ten Commandments. With other parallels. The Globe Theatre was Shakespeare’s production company and sole distributor. Sure, somebody could have sat in the audience and copied Hamlet. Reproduced the entire production? Heh. Like schoolkids doing the Ten Commandments.

    *I consider coherent, written speech to be a tangible thing.

    nk (dbc370)

  177. Another issue: pharmaceutical companies spend billions on R&D, to be sure. But a lot of what they spend that money on is coming up with “me-too” replacement drugs that are different enough from existing drugs to get a patent. They have to go through all the ridiculous FDA clinical trials even though the principal ingredients are the same as drugs that already exist. Nexium vs. Prilosec, e.g. This is a huge waste and we have patents to thank for it.

    Patterico (9c670f)

  178. Goodwill can be better than a patent. Bayer had the brandname Aspirin trademarked, to use your example. People asked for Aspirin, and said “Huh?” to acetatated ester of salicylic acid. Like Coke. Coke does not have a patent for its sugar water; its strength is its brandname.

    nk (dbc370)

  179. nk,

    Technically, that’s correct: an abstract idea can’t be patented. But, for example, a chemical compound (if “nonobvious”) can be considered an “invention” and not an abstract idea. So in practice, it really often is an idea that is patented.

    Patterico (9c670f)

  180. Wright brothers. Did they refuse to license their patents at all, or were they asking for a license fee? Because the second is not “stifling”.

    Sure, even if their planes really couldn’t fly well, and the planes of the people they sued could.

    Hey, the podcast patent troll is just asking for his license fee too.

    Patterico (9c670f)

  181. They have to go through all the ridiculous FDA clinical trials even though the principal ingredients are the same as drugs that already exist. Nexium vs. Prilosec, e.g.

    If they want to waste money trying to fool people that their remake is better than their old product, let them waste their money. If people want to buy the new brand instead of the generic, let them do that, too, confident that it’s gone through the same scrutiny as the older drug.

    nk (dbc370)

  182. If I have seen further it is by standing on ye sholders of Giants. — Newton

    The Wright brothers proved heavier than air flight was feasible. It encouraged others to attempt to improve their design. Good for them that they succeeded. But giants should not be paid to have their shoulders stood on?

    nk (dbc370)

  183. The Wright brothers proved heavier than air flight was feasible. It encouraged others to attempt to improve their design. Good for them that they succeeded. But giants should not be paid to have their shoulders stood on?

    Am I arguing for people not to be paid? No. I am arguing against government preventing further innovation. Read up on the Wright Brothers’ patent wars and how they stifled innovation in the airplane industry. I may write about this in the series of posts I am tentatively planning.

    Patterico (9c670f)

  184. True, but do we know that government-sponsored monopolies are the only way?

    Patterico, you usually are more fair in your counter-arguments than this. I’m not willing to concede that patents are government-sponsored monopolies, nor have I stated they are the only way. What I have said is that there must be some royalty based on the ownership of intellectual property, and that doing away with patents altogether is a bad idea.

    Perhaps a better way would be what they do in the music industry. It’s perfectly legal to record someone else’s song. But if you do, you have to pay a pretty steep standard royalty for doing so. You have the incentive to negotiate a lower royalty with whoever holds the copyright on that song.

    Why not do the same thing with patents? Impose a very steep “standard” royalty for duplicating the product or process covered under the patent. Then allow parties to negotiate a lower royalty with the patent holder.

    That would give the inventor the protection for his property that he ought to have, and allow for innovation in the marketplace.

    Chuck Bartowski (3e0e89)

  185. Chuck,

    Were you or were you not concerned that, without fair compensation, artists would not create art?

    Patterico (9c670f)

  186. Patterico, you usually are more fair in your counter-arguments than this. I’m not willing to concede that patents are government-sponsored monopolies, nor have I stated they are the only way.

    I didn’t think I was being unfair.

    If they’re not government-sponsored monopolies, what the heck are they?

    Patterico (9c670f)

  187. 157. I *think* the point you are trying to make is that, although ideas can be used by anyone (and thus, by my definition, are not scarce), the implementation of those ideas requires resources such as flour (for bread) or land (for growing corn) or people (to become lawyers) that themselves are not unlimited. Correct. I agree with you. Ideas are not scarce but their implementation requires resources that are scarce.

    So . . . what, then?

    That is precisely the point I am trying to make.
    And thus that your definition is not functional.
    By focusing on such a narrow definition of scarcity you are missing that it exists in many forms and at many levels.

    Thus we can have both too many lawyers and highly expensive lawyers at the same time.
    Not only that, but we can have an organization that exercises monopoly power on the creation of new lawyers while we have a surplus of organizations without monopoly employing the template to prepare new lawyers, and those organizations are charging disproportionately high, even destructive, fees for that template.

    Clearly that definition you are using is missing something if this can happen.

    As for what next, on what account?
    Since your definition isn’t functioning, you’ve pretty much got to change your definition to something more functional.
    As for what protections should be given to these idea templates, I thought you already set it up so we were haggling over the proper term.

    159. That’s a label and not an argument, and it assumes what it purports to prove: namely, that these ideas are property and should be treated as such.

    “Monopoly”, in the way you are using it, is a label and not an argument as well, purporting to prove what it assumes that these ideas are not property and should not be treated as such. And of course all the questions you pose have been used to argue against private land ownership.
    If they cannot be used to defend IP as deserving of protection then they cannot be used to defend real property as deserving of protection.

    160. No, you cannot be compelled to add to the body of scientific knowledge for the benefit of all mankind.

    Oddly, people do, even without patents. They even receive renumeration for it, somehow, even without government monopolies.

    Once again, just because some people do does not obligate others to do the same.
    Nor does it negate their property rights.

    And see above – here you are using “government monopoly” as a label purporting to prove your point that these ideas are not property.
    Some people who own property let others squat on it, or forage, or whatever. Some might receive rent, but that isn’t a requirement. Why then do they need a “government monopoly” on their property?

    167. We live in a world where Apple can collect over a billion dollars from Samsung for selling a phone with Apple’s patented features like a “home button, rounded corners and tapered edges.” Wut? And Apple can waltz into court and try to prevent Samsung from selling its phone at all because it contains these wonderful, special features that nobody could have ever thought of.

    Something needs to happen.

    Why does something need to happen?
    Why is there something wrong with Apple making a billion dollars off of something?
    Okay, perhaps the something is rather stupid and inconsequential, though that gets right into highly subjective value judgments almost immediately.
    What if someone insists on a billion dollars for their land? Or the grain they grew on their land? Or other “real” property?
    How long before that something that needs to happen is the law deciding when you have made “enough” money?

    171. I’d be willing to bet patent law kills a lot of people.

    So what?
    You just told me that I cannot be compelled to add to the general knowledge for the benefit of mankind, yet here you are complaining because people are demanding to get paid.
    Debating whether these genes or proteins should be patentable is one thing.
    Debating whether the patent holders should be allowed to demand “unreasonable” prices for their property is quite another, and that is precisely what you are doing, aggravated by labeling the action as actively “killing” people.
    Would you suggest that if someone refused to sell a ride in their car to get someone who had been stabbed to the hospital they are legally responsible for the death of that person when he bled to death?
    How then can refusing to sell use of a gene or protein to someone else to possibly develop a treatment that might possibly help someone else be construed as killing someone?

    Sam (e8f1ad)

  188. They are an alternative to trade secrets, guilds, and real vertical monopolies where one entity has a lock on a product from concept to consumer. Like Coke.

    nk (dbc370)

  189. 176. Also aspirin was invented by the Germans.

    Funny you should take that as an example, as there is a dispute over just which German invented aspirin, as well as an issue that only one of the three people involved received royalties as a result of the invention.

    Now of course that had more to do with corporate skullduggery and a bit of anti-Semitism than with property rights, as aspirin was not eligible for a patent.
    It does however demonstrate that not everything works justly all on its own and people are always going to play nice with the ideas of others because they are supposed to.

    Sam (e8f1ad)

  190. Maybe we don’t need patent reform, maybe we need Lawyer Reform.

    Or a system that makes it more onerous to pursue these types of suits.

    And while we’re at it, a system of checks and balances
    (That actually works. Meaning that it is monitored effectively and is enforced)

    to rein in overzealous and politically motivated Prosecutors/District Attorneys
    (present company excepted) would go a long way to raising people’s respect for the
    law and the Justice system.

    jakee308 (ba1e65)

  191. Shakespeare’s purported wealth (there is still debate today as to who Shakespeare actually was) was not developed from his art. He was independently wealthy, nobility even. His art did not generate his wealth.

    John Hitchcock (5131d7)

  192. I think the current conditions of business, etc., come into play. My guess with the German dye industry was that perhaps the ability to manufacture was limited to a few companies, and they could benefit from the discoveries that they made whether there were patents or not, as no one else could produce it.

    Today, once someone has the ingenuity to figure something out, they could probably have it made in a dozen places around the world, meaning someone else could do the same without the R+D overhead.

    While there may be problems with patents and pharmaceuticals, do you really think a company would invest billions of dollars in a new drug if they would never get back their investment?
    I do not know the industry side very well, yes, in one way I think it is not ideal for a company to invest in a “tweaked look-alike” to maximize profit, but then I also do not know how much they throw down a wormhole with things that never pan out and so “pick the low hanging fruit” when they can.

    What about that Shakespeare example today? Heck, availability of printers, let alone copyists, and anyone can self publish. An original work today could sell for no more than a manuscript long in the public domain.
    Not even that, heck, somebody puts it on a kindle and the author would not make a penny.

    MD in Philly (f9371b)

  193. Aspirin, for example, is a relatively simple molecule.
    The first protease inhibitor for HIV took over 20 individual steps to synthesize. I can only imagine a lot of time and energy went into the chemistry, biological testing, then up scaling to a production level from a lab bench. You think a company would do that only to compete with other companies at generic prices who did not have the investment to make up?

    Maybe I’m missing something, I don’t see it at all, unless you have people with millions and billions of dollars willing to donate it to researchers instead of hospital wings, etc.

    MD in Philly (f9371b)

  194. So, ideas vs. inventions.
    Some argue ideas are scarce; looking at the number of bonehead mistakes in the world, I’m inclined to believe that.
    But even if ideas in every possible field of endeavor were infinitely abundant, that still would not prove that the logic behind patents is wrong, because patents are not for ideas but for inventions (at least de jure).
    An invention is someone taking a good idea, and spending the effort to make it work. Labor is a necessary part of invention. And patents are intended to compensate the inventor for that labor, in exchange for them making it available to the public.
    Simply because the inventor charges money does not mean that it is unavailable; unavailability is when you cannot get it for any price.
    The free market is a better judge of the value of an invention than any system of bounties and wages, because it reflects the value that everyone places on an invention.
    Just because I have a monopoly on one invention does not mean that the market is not free, because there are other inventions possible.

    Now, you’re probably about to repeat that patents stifle invention, as shown by the guy who’s claiming a patent on podcasts. At this point I would like to remind you that (1) any law can be abused; (2) a patent is supposed to be compensation for the work performed by the inventor; and (3) since you’re arguing that no patents is the optimum, I can argue that a different patent law is the ideal.

    If someone lies about how much work they performed or claims to have done work that was actually performed by someone else, does that make the Thirteenth Amendment less desirable? I think you’ll agree that that would be wrong.

    The system we have has encountered similar types of fraud:
    (1) claiming someone else’s inventions after the fact by amending an existing patent (legal)
    (2) falsely claiming that an invention has been made when it has not been reduced to practice (illegal, but common)
    (3) claiming someone else’s inventions as your own new work (questionable)

    The case that provoked the original post is an example of the first.

    The proposal I mentioned before addresses (1) & (2), by saying that the inventor must have a functional implementation and can only claim the novel aspects of that implementation. (3) will probably occur, but it’s not authorized by this standard.

    And if volunteers can get a lot done, does that make the Thirteenth Amendment wrong? No.
    Similarly, the efficacy of those who don’t apply for patents does not mean that patents should
    not be available to anyone.

    Now, about the rule about availability of the model: it’s saying that if you want to get paid for your work, you need to make it available to the public.

    Ibidem (9d5b24)

  195. What about Shakespeare then? He had many sources we don’t have the texts of. He might have been in court after his second or third pay.

    (Of course, the texts we have are from the memories of the actors, so maybe they’re the copiers!)

    htom (412a17)

  196. EPWJ (fa0e23) — 8/23/2014 @ 3:44 pm

    they didn’t invent flight but applied the laws of physics successfully

    I’m not sure the Wright Brotehrs ever figured any laws out. Their original idea maybe was that controlling flight was very important. They used wind tunnels to test things out, not any kind of theory.

    Later on they thought Curtis Wright stole some discoveries from them.

    nk (dbc370) — 8/23/2014 @ 3:52 pm

    Sure, somebody could have sat in the audience and copied Hamlet.

    They did.

    http://internetshakespeare.uvic.ca/Library/facsimile/overview/book/Q1_Ham.html
    http://internetshakespeare.uvic.ca/Library/facsimile/bookplay/BL_Q1_Ham/Ham/

    http://en.wikipedia.org/wiki/Hamlet_Q1

    After its discovery in 1823, its initial editors typically took the view that Q1 was an early draft of the play, perhaps even a revision of the Ur-Hamlet, but John Payne Collier argued in 1843 that it was simply a bad version: a “pirated” text, one of the “stol’n and surreptitious copies, maimed and deformed by frauds and stealths of injurious impostors”, which were denounced in the preface to the 1623 First Folio.

    This view became increasingly prominent in the 20th century. It was one of the publications named by the bibliographer Alfred W. Pollard as a “bad quarto” in 1909, a term he coined to distinguish several texts that he judged significantly corrupt. In 1915 Henry David Gray analysed Q1 using the model of memorial reconstruction, the idea that that some publications were based on the memories of actors hired to play minor roles. He concluded that the actor who played Marcellus was responsible for the reconstruction….

    Reproduced the entire production?

    They didn’t. Just sold the script..

    Sammy Finkelman (13370e)

  197. Patterico @ 171. I’d be willing to bet patent law kills a lot of people.

    That’s only part of the problem.

    The real problem is taht drug regulation is such that it’s only worhwhiole trying to develop something that can be patented.

    So:

    1) No new uses (at least proven) for old drugs or compounds.

    2) No research on a compound except by whoever has the rights to it.

    Also, thanks to the long drug approval process:

    3) No tweaking of the compound or of the dose if you suspect, further along in human testing, that something might be improved.

    Regulation is now so bad, that there are shortages of generic drugs. (partially caused by price regulation, often de facto.)

    Sammy Finkelman (13370e)

  198. 194. MD in Philly (f9371b) — 8/23/2014 @ 6:01 pm


    I can only imagine a lot of time and energy went into the chemistry, biological testing, then up scaling to a production level from a lab bench. You think a company would do that only to compete with other companies at generic prices who did not have the investment to make up?

    [Not] unless you have people with millions and billions of dollars willing to donate it to researchers instead of hospital wings, etc.

    Unfortunately, Bill Gates doesn’t uderstand that that’s necessary.

    The drug development and approval process is utterly broken.

    Sammy Finkelman (13370e)

  199. Patent law makes the cost of developing new drugs tolerable, because otehrwsise reglation would just about make it impossible, but only for a subset of all possible new drugs, and often for not the best and safest drug possible.

    Also:

    Drug companies deliberately qualify their drugs for shorter expiration dates than they really would last, in order to cause copious amounts of drugs to be thrown out.

    There are no new antibiotics. It doesn’t pay. They won’t be used much and now, even less, as it
    would be kept in reserve.

    Some drug (and vaccine) companies strategize. One possibilty is HPV vaccination, which only giards against certain strains. They can more strains later maybe and extend their patent.

    Congress allowed I think 3 more years if a drug if wualifies for children. So they do that even though using that drug in such cases may not really be good.

    Sammy Finkelman (13370e)

  200. “Similarly, the paint/coloring/dye industry flourished in Germany without patents, because they had to refine their production processes. It got to the point where we imported dyes from Germany during World War I, which is rather remarkable.”

    Patterico – I’m curious where you obtained your history about German patents and whether it relates solely to the chemical industry. What I found shows Germany had patent laws in the second half of the 19th century, but I did not want to dig any further without clarification from you. For example, I have no idea whether BASF held any domestic patents for its dyes, but it certainly registered foreign ones at the time of WWI, as can be seen from the following discussion from its corporate website:

    By the end of the First World War in 1918, German dye manufacturers have lost their leading position on the world’s markets. Production facilities, subsidiaries, associated companies, and sales companies abroad are confiscated, as are patents registered abroad. Reparations imposed by the victors hamper economic recovery. BASF is occupied by French troops for several months and links to the eastern bank of the Rhine are severed.

    http://www.basf.com/group/corporate/en/about-basf/history/1902-1924/index

    daleyrocks (bf33e9)

  201. I think Germany had patent laws, but the dye companies relied on trade secrets, which lasted longer.

    Sammy Finkelman (13370e)

  202. http://www.american.com/archive/2014/august/peanut-butters-many-inventors

    The decisive step was the introduction of hydrogenated peanut oil in 1928, which prevented oil from separating. The inventor, a Bay Area food packer named Joseph Rosefield, licensed the key patent for the process to a division of Swift and Co., which sold it under the brand name Peter Pan. When a new manager tried to cut his royalty in half, Rosefield boldly canceled the agreement and decided to produce and market his own brand nationally. He called it Skippy, an allusion to a popular cartoon character. Like many other Depression-era innovations, the brand grew slowly, not making a profit until 1940. The Rosefields invested heavily in proprietary manufacturing equipment; in the sexist spirit of the day, a descendant told Krampner, no males were allowed to visit the plant lest they copy trade secrets. Girl Scouts could tour, but not Boy Scouts.

    from this i get the idea that patents maybe are more beneficent in slow-growth hyper-regulated fascist countries like obama’s america than maybe in a for reals free market country

    happyfeet (8ce051)

  203. Fascist? To some extent I suppose. The government is using its ultimate power to shoot people to keep them from stealing your property. The other alternative, of course, is to let you shoot your own thieves. “I just invented a automated thumb-wiggler. If anybody copies it, I’ll shoot them.” “Why can’t you just sue them for patent infringement?” “That would be fascist.”

    nk (dbc370)

  204. That didn’t work out very well for the Indians, and other dark people who experienced Scottish and Austrian free market theory up close and personal.

    nk (dbc370)

  205. Plenty of Indians and dark people are cashing in on free market ebt nation.

    mg (31009b)

  206. I have thought about this a lot, and I’m just not sure abolishing patents is the right solution. It makes for interesting discussion, and there are some surprising good arguments in favor of the idea, and they might be right. But I can’t mentally commit to that position right now.

    I have enjoyed the discussion. I think a lot of people made good points.

    Patterico (9c670f)

  207. 82- Patterico – with all due respect I don’t think so, but I’d love to see an example of one.

    deskbox (c5dee8)

  208. The eph with patents, the whole of IP law has been ephed for three decades and more. Get rid of copyrights and re-create a new system from scratch which does not depend on control of the copyrighted materials, for a start. “Copyright” should be a right to a certain degree of reward for releasing it to the public, not a monopoly on usage. And the term of that reward should be more in line with what patents get you, not the “life plus 37 kabillion years” it’s currently headed for.

    The Economy of Ideas
    A framework for patents and copyrights in the Digital Age.
    (Everything you know about intellectual property is wrong.)

    “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”

    - Thomas Jefferson -

    .

    This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as from without.

    Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial.

    Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.

    - JP Barlow, from the above link -

    Smock Puppet, "Si tacuisses, philosophus mansisses." (225d0d)

  209. CopyRIGHT should be a right to a share of the rewards in return for the dissemination of your description of your idea. Not for the “creation” of it, since someone else likely would have come up with the same idea sooner or later — but for the work, effort, and time spent in constructing a suitable DESCRIPTION of the idea that helps others to understand it, or to perceive its utility.

    Once you start to think about that, it begins to fit better into what is being done — you cannot own DATA, but the time taken to create a unique WORLDVIEW of that data — be it musical notes, images, sequences of images, or words on a page — yes, even numbers on a monograph — represents time and work that is yours and yours alone — no one else can or would produce that WORLDVIEW. And so you should be rewarded for your time and effort in appropriate contrast to the utility society has for your worldview.

    Society does not owe you ANYTHING directly. But if it wants people to continue taking the time to create and release expressions of these worldviews, it is clear that, somehow, it must reward people for that activity.

    Smock Puppet, "Si tacuisses, philosophus mansisses." (225d0d)


Powered by WordPress.

Page loaded in: 0.5119 secs.