
The patent system: End it, don't mend it - chaostheory
http://www.csmonitor.com/Commentary/Opinion/2009/1208/p09s06-coop.html
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grellas
This article takes much broader aim than merely at the patent system (which I
leave for others to argue) - it takes aim at the entire system of affording
special protections for intellectual property generally. The authors nowhere
attempt any form of coherent articulation of this broader position and merely
take swipes at the protections they oppose, but I think this broader position
either undermines their credibility or indicates a serious sloppiness on their
part.

In essence, the authors assert that there is a major difference between having
society (and its laws) protect tangible forms of property, on the one hand,
and intangible forms, on the other. Thus, we understand how our home should
belong to us exclusively, for instance, but it is somehow different when the
issue comes, for example, to copyright protections.

I realize that I am perhaps flying right into the teeth of some firmly-held
opinions at this site in delving into this, but I will do so anyway.

Statements stating or implying that protection of tangible forms of property
are fundamentally legally distinguishable from protection of intangible forms
are based in ignorance.

Legally, in a system of private property, the law recognizes "bundles of
rights" that attach to all forms of property. We can own property, we can
possess it, we can alienate (sell or transfer) it, we can bequeath it, we can
improve or modify it, and on and on. These legal attributes that attach to
property are there for the owner's protection and for society's betterment.

Is it outrageous that the law allows a property owner to deal with this bundle
of rights largely as he sees fit? Not at all. In fact, this is how we can
truly enjoy our forms of property to the fullest extent. I may own my property
but I can take one specific attribute among the bundle of rights that define
my ownership, e.g., my right to exclusive possession, and I can transfer that
right while still retaining overall ownership. This is how the law recognizes
and enforces a lease. Would our society be better off in abolishing all leases
just because some landlords become slumlords and exploit their tenants? Of
course not. That would be absurd. That sort of remedy, while perhaps having
superficial appeal as a means of eliminating abuses, clearly would defeat the
many valuable things that a society derives from allowing leases to be
recognized and enforced.

Why should this bundle of rights be any different for intangible property
rights (so-called intellectual property)? Authors in the eighteenth century,
even if they had obtained copyright protection in their own countries, would
often suffer scandalous losses as their works were ripped off and reprinted
without any form of compensation given to them. Is it wrong that, today, such
rights are protected? Silicon Valley over the past several decades has thrived
and grown as the fruits of the labor of countless individuals were given legal
protection in the form of copyright, trade secret, and, yes, even patent. Do
we now want to take all creative efforts and allow those who poured their
blood and sweat into devising new and improved algorithms, designs,
inventions, etc. to be stripped of all protections as, for example, happens to
their works in countries where intellectual property is not protected (e.g.,
mainland China)?

How many startup businesses depend on licensing the products of their creative
efforts to others? Abolish IP protections and suddenly there is nothing left
to license (a license being the counterpart of the lease discussed above,
representing a subdivision of a bundle of rights belonging to the owner of the
intangible property involved). Even software as a service could be ripped off
with impunity. Any employee of the organization offering the software-based
service could walk away with any code he wanted and freely use it for a
competing site. Without IP protection being recognized by society or its laws,
there would be nothing to stop this. If everything that is intangible is
simply held in common, the fruits of any individual's creative efforts would
not be protected and there would no longer be any special economic rewards
associated with doing a creative work. Of course, one could argue that society
"benefits" from having a more widely available use of those works but who will
be motivated to pour blood and sweat into creating them? And who will want to
put risk capital into a company whose charter is to develop such creative
works when such investors will bear 100% of the loss if the venture fails
while they will get no special reward (or at least a much diminished reward
than they would have gotten if their company had legally protectible rights to
its IP) if it succeeds? Of course, very few if any persons would want to put
their money into a "heads I win, tails you lose" situation.

Thus, the claim of these authors that protection of IP should be abrogated is
worse than wrong - in a system of private property, anyway, it is absurd.

Any such abolition would undercut the basic foundation upon which the vast
majority of startups (and much of enterprise generally) are based.

Again, I leave the patent discussion to others, but any such discussion needs
to be based on a carefully considered analysis and not on a facile and
superficial strewing about of random points that strike an author's fancy.
Just for starters, when I hear "abolish patents," I wonder how this would be
any more beneficial to society than, for example, abolishing leases - is it a
good answer in dealing with existing abuses to throw out an entire system that
may and very likely does serve many good purposes in society? I am skeptical
(at the same time, I acknowledge and do not defend the current abuses in this
system, which are numerous - at a minimum, the system clearly needs fixing).

~~~
kiba
As an anarcho-capitalist, I would argue that intellectual property right
violates the right of _property owners._

That being said, the rights of a owner of a mp3 file is overruled by a wider
power enforced by the state. That owner cannot reproduce, sell, and _compete_
at will with the originator of the mp3 file without permission. He, as _owner_
of that particular mp3 file, cannot do with it as he see fit.

The whole system of intellectual property is government intervention into the
economy for the political interests(patent lawyers, corporations that benefit
from monopolies power, software developer, artists, etc). It is a system that
also changes widely from nations to nations, and in history. It is an unstable
system that tends toward chaos as parties compete for special privileges and
political favors.

Contrast that to property right, in which anarcho-capitalist recognize it to
not change over time and remain universal throughout history, regardless the
whims of democracies, dictatorships, and other coercive apparatus.

How long should copyright should last, and what kind of freedom is afforded to
public? Should patents last for so and so years. How should we choose non-
obvious between obvious patents?

That's the question of an interventionist utilitarian technocrat who don't
care much about property right but the end it achieves, not the product of a
thinker who believe strongly in private property.

==Addenum==

That's the emerging views of anarcho-capitalists led by none other, a lawyer
who specializes in patent.

It is also a view that have practical impact on spreading libertarian ideas by
changing a think-tank organization(mises.org in this case)'s strategy toward
spreading ideas and economic knowledge toward everybody else by the mere
embrace of giving anything and everything information that could be given
away.

 _We made the decision to give away everything that possibly could be given
away, from code to text to the right to reprint — as far and as widely as
possible._ \- mises.org

~~~
grellas
This is an interesting angle that I had never heard before. I'm not sure that
I agree with the specifics but I do know that I grew up reading and enjoying
Von Mises over many years for the rigor of his thinking and for his courage in
standing up for unpopular views. I will look into it.

~~~
kiba
It would seem that you are familiar with the Austrian school, but you are not
up to speed on the intellectual property controversy within libertarian
circles.

Well, Lugwig von Mises was a utilitarian, but not his student, Murray
Rothbard.

------
nroach
"Ideas kept under lock and key are much less useful than those that are freely
available."

That's precisely the point of the patent system. It is supposed to encourage
disclosure so that after the protected period the knowledge is made fully
available to society.

The alternative is trade secret protection whereby inventors remain secretive
about their work product, never disclosing to the public at large how the
device works and not allowing follow-ons to build upon their knowledge.

The two problems with the current system are 1) protection terms are too long
and 2) the enablement requirements aren't enforced well enough.

Let's say that the protection term is reduced to one year. And assume that the
USPTO requires patents with sufficient detail to fully enable readers to
replicate and practice the invention.

Under that scenario, I think that the patent system would be seen as an asset
to society. In exchange for a year's worth of protection the inventor has to
tell society explicitly how to do exactly what he or she is doing. I don't
think most people would have a problem with that system.

If you go back to the Constitutional basis for the patent system, it was "To
promote the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries."

As long as "limited time" is a reasonable period, I don't know that abolition
is required.

~~~
apowell
I'd add two more problems:

3) Too expensive. 4) Takes too long.

Getting a patent attorney to prepare and file a patent is very expensive. It
takes $10k just to get started. The patent system is so byzantine that you
can't reasonably expect to do it yourself and be successful. The cost is a
drop in the bucket to a large corporation, but it's a major barrier for
individual inventors.

Not only that, but it takes way, way to long to actually receive a patent. I
applied for a patent about two and a half years ago, and I'm still waiting.

As an individual without infinite resources, I'm hesitant to built a business
around my concept unless I can be confident that it'll be protected. If I'm
not granted the patent, then it would be trivial for an organization with
deeper pockets replicate what I would have created.

I know that patents typically don't make a business defensible, but in my case
I decided to pursue a different business opportunity. If I'm granted my
patent, then I suppose I'll figure it what to do with it then. On the other
hand, what good is a patent on a technology conceived three years ago, except
to make life difficult for others?

~~~
nym
I read today a factoid that said innovation was down because patents were
being filed less (2 percent iirc).

Interesting that someone would think that the number of patents was a direct
way one could measure innovation. My interpretation was that possibly less
irresponsible patent grabbing was taking place because due to the recession
there was less incentive to spend money patenting, and more incentive to keep
businesses alive through _real_ innovation.

Of course, I could be completely wrong.

------
hristov
I have to strongly disagree. First of all, all his statements about how the
patent system does not promote innovation are merely conclusory and do not
show any evidence or reasoning behind them. (Other than a couple of cherry
picked individual cases).

This is an interesting question, but it is unfortunately really hard to show
scientific proof either way. Economics is just too uncertain of a science to
prove something as complex as this. One thing that is known is that most
countries whose economies rely on IP creation usually end up with a relatively
strong IP protection system.

Now, as I have said here before, I agree that some patents may hinder
innovation. Patenting things that are not new or obvious or issuing patents
that are too broad can just create a lot of harmful rent seeking which only
hurts innovation. But this is something that should be fixed by modifying the
patent system not scrapping it.

This is too big of a discussion to have here, but I should point that a big
mistake people make when considering the cost of the patent system is to
assume that if patents did not exist things would be just the way they are
now, but without the patents. This is simply not true.

I really doubt those Africans would have any AIDS drugs if the patent system
did not exist, because nobody would commit the resources of developing and
testing an AIDS drug without patent protection.

Furthermore, if there is no patent system, the only way to protect your
inventions would be by keeping them secret and companies that do innovate
would go through very costly measures of making sure their inventions are
secret. These measures probably cost much more to society than the patent
system. Also, keeping inventions secret often resulted in the inventions being
lost forever. Thus, if there is no patent system one may argue that the ideas
would still be kept under lock, in fact they would be more severely locked
down than before.

If you study the history of innovations, you can see a lot of interesting
inventions being completely lost merely because their practitioners wanted to
keep them secret. Also, you will find out about entire secret societies being
formed just to keep knowledge secret (e.g., the Masons).

For example considering the kind of buildings the masons built in medieval
times, they must have had some pretty good knowledge of rudimentary physics
and mathematics. But all this knowledge was carefully kept secret to ensure
their monopoly. Thus, nothing was published and nothing could be used by the
scientists of the era to develop overall scientific theories.

edit : full disclosure, I am a patent lawyer. Further edited for spelling and
grammar.

~~~
blasdel
If the windfall profits granted by state-capitalism were vacuumed back into
non-existence, perhaps it would be possible for governments, non-profits, and
academia to collaboratively conduct pharmaceutical development out in the
open.

I've never seen anyone but patent lawyers make a spirited defense of patents
for their own sake.

~~~
Locke1689
My father is a professor and doctor of medicine at one of the most esteemed
medical schools in the country. He is 100% sure that without patents we simply
wouldn't have most of the drugs we have today. They are far too expensive to
develop and then have your competitors copy. The government funding for these
projects is pitifully small and slow (I can say that from an academic non-
medicine perspective as well). Non-profits are pretty much useless as well
since they have nowhere near the funds.

~~~
alan-crowe
Drug development seems to be the case where the patent system actually works
and I wonder if that is due to having one patent per product? Elsewhere you
get patent thickets and invention choked off by multiple ownership. Perhaps a
useful reform would be to insure that no product is encumbered by more than
one patent. This could be done by letting the most inventive patent covering a
particular product be the trump patent. Minor patents would lose their
nusiance value. Research incentives would be turned upside-down. Instead of
doing cheap research to get a trivial patent and a seat at the bargining table
to leech off real inventors, expensive research, aimed at major breakthroughs
would be the only way to win.

------
chrischen
It seems intellectual rights for something like music makes more sense, since
one can work just as hard on another song and achieve almost equal success.
But in technology there is usually a limited amount of ways to do something
most efficiently. Each longstanding patent makes alternative efficient
methodologies harder to come by. It impedes the process of evolution since
there's a definite _best_ way.

------
vaporstun
The author ignores the main reason patents exist by pulling in emotional
things. Sure, in a magical happy world it would be great to offer children in
Africa free AIDS medicine, but the fact of the matter is that millions of
dollars go into getting a drug like that to market. It takes millions of
dollars of research, millions of dollars to go through clinical trials,
millions of dollars to go through FDA approvals, etc. And ultimately most
drugs are very simple chemical compounds that could be easily synthesized in
retrospect with the most basic of equipment.

While it's certainly bad for companies to exploit the patent system and try to
extort profit out of sick and dying people, that does not justify throwing out
the protection altogether.

If we threw out the patent system, none of the drug companies would spend the
millions of dollars required to create things like a cure for AIDS as they
would not make that money back because the next guy would just do some simple
chromatography and have the same chemical compound synthesized for a fraction
of the cost. What company is going to go tens of millions of dollars in debt
with no hope of making that money back? When the incentive to do research is
gone, we have no AIDS cure at all and in my opinion a world with no AIDS cure
is worse than a world with an AIDS cure that's a bit expensive.

There are many things that are broken with the patent system for sure, but
throwing it out completely would cause many things to fall apart and cause
catastrophic damage.

------
rfreytag
Pricing is hard and getting the right time-period for a monopoly on an idea is
no different.

And then the Patent Office profits by awarding patents putting the negative
externality burden on those in the field of the patent to "fix" mistakes.

For a man of his historical importance Jefferson had a lot of questionable
ideas (owning slaves, blaming banks for his debt, monopolies on ideas, and I
don't care much for the speeches I've read of his either).

Louisiana Purchase turned out all right though.

------
richardburton
James Dyson made 5,167 prototypes before he came up with the winning formula
for the Dyson cleaner. I doubt that he could have become a successful
billionaire without the right to fight off the companies who tried to make a
quick buck out all his hard work.

[http://bobsutton.typepad.com/my_weblog/2009/02/5127-failed-p...](http://bobsutton.typepad.com/my_weblog/2009/02/5127-failed-
prototypes-james-dyson-and-his-vacuum-cleaner.html)

~~~
coffeeaddicted
Making sure inventors get rich is not the aim of the patent-system. Most
people work hard every day and there isn't a system in place to make sure they
will all profit from that real big one day. So yes - there are people which
profit from the patent-system, as there are always people which profit from a
monopoly. And exceptionally one of those people profiting from it is even the
one who put most work in it. So it might be a slightly better system than a
pure lottery. Except that I'm not forced to play lottery, while I'm forced to
partake in the patent-system. I would prefer not doing so. Make it an open-
choice and I'm fine with it, because then I will avoid taking part in the
patent-lottery as much as I avoid taking part in any other lottery. And don't
worry, that won't stop me from inventing, actually it will make working for me
on new stuff a lot easier.

------
jsz0
Whatever happened to patents needing to be "non-obvious" and patent grants
being utilized within a certain time period? It seems those two provisions
would solve a huge number of frivolous patent lawsuits. Both provisions
existed at some point in the last 100 years. What the hell happened and when
exactly did it happen? It seems like our patent laws were fairly reasonable
not all that long ago.

------
mattmaroon
This article keeps mentioning "empirical evidence" yet gives nothing but
opinion. Then it mentions some instances where the bathwater is cold and
suggests we throw out the baby.

Save your 3 minutes.

