
Reducing the Cost of IP Law - icey
http://mises.org/daily/4018
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camccann
That's actually a refreshingly well-thought-out treatment of the subject from
someone who has (and says as much up front) a massive ideological bias against
the whole concept. I wish more people with "fringe" political opinions were
that sensible, maybe then we'd actually stand a chance of seeing politics be
about something other than petty Team A vs. Team B squabbling.

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grellas
Most startups need to have barriers to entry if they are to have the capacity
to sustain themselves beyond the initial phase of their existence.

This is one of the first questions that potential investors will ask any
founding team: assuming that you initially succeed, what is to prevent big
players from attacking you. More often than not, the answer lies in the IP
protections that protect such a startup's development efforts, whether this
takes the form of patents, copyrights, or whatever. It is true that such
startups can also be prejudiced by threats of infringement from large
companies and in this sense IP rights can potentially work against them. In my
experience, though, for every oddball situation (easily less than 1%) in which
IP rights threaten a startup, there are many, many situations where IP rights
work in their favor and in which they would clearly be prejudiced if such
rights were scaled back or eliminated.

Thus, from my subjective perspective, I can attest that IP rights _are_ a spur
to innovation because many of the startups I have represented would not have
been able either to start or to fund themselves without a business model that
ultimately depended on proprietary advantages afforded by IP rights. Perhaps
they are wrong about what does or does not promote the best interests of their
companies but, in the real world, this is overwhelmingly how most founders see
IP in relation to their companies.

Can't speak to the broader societal or cost/benefit issues raised by the
author (and would agree that patents in particular are in need of reform). By
the way, as I do not do patent filings, this is not a livelihood issue for me
- just my viewpoint as a lawyer representing startups for over a quarter
century in Silicon Valley.

~~~
kiba
_(and would agree that patents in particular are in need of reform)_

That's not the correct characterization of his position.

His position is that of abolishing patents and copyrights in accordance to
libertarian ethic theory. However, from a practical perspective, he notes that
abolishing IP laws is not possible.

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muerdeme
One thing that struck me reading this article is that innovation seems to have
outgrown the one size fits all nature of the patent system. Given the huge
difference in capital expenditures required between engineering software and
pharmaceuticals, why are they treated the same?

~~~
kiba
You may want to take a look at _Against Intellectual Monopoly_.

[http://levine.sscnet.ucla.edu/general/intellectual/againstfi...](http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm)

The thesis is that all patent and copyright, contrary to popular belief, does
not actually increase innovation.

I have mentioned this book on several occasions but it seem that hackers
continue to remain ignorant of books like this.

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d4ft
Hard to take someone who calls himself an "Austro-Anarchist Libertarian Legal
Theor[ist]" and went to a law school I've never heard of (note: I am a law
student now) seriously. From a legal perspective, this guy's political biases
show through. Editor of the liberatarian papers? Check. In the end, I thought
it was a long article that is 1) fanciful and 2) a rehash of prior ideas.

~~~
muerdeme
Why exactly does Kinsella's political philosophy matter? He is upfront about
what he believes, so I don't think he's trying to deceive anyone. I also don't
think that his political orientation means anything "from a legal
perspective." Meaningful patent reform would almost certainly take place in
Congress, not in the courts.

Also, although you may still believe that his conclusions are fanciful, I
think Kinsella is actually trying to be practical. Instead of arguing that IP
shouldn't exist at all, he is advocating specific reforms that he believes
would reduce the net costs of our patent system to society. I don't find his
suggestions fanciful, because the US has already moved in the direction
Kinsella advocates for at least patent publications.

~~~
d4ft
I'm sorry I got to this so late. I realize noone will probably read this, and
I only stumbled upon because I have had a few beers and was browsing old
posts. In any case, I have a couple qualms. First, political philosophy does
matter. Patents is about maximizing "progress" in the useful arts and
sciences. Thus, depending on what you believe politically, you will have
different views about how to accomplish this.

Further, in reality, most patent reform does take place in courts. For
instance, the Supreme Court mandated the processing of patent appeals in the
federal circuit. Why? Because this way we could have a fairly uniform set of
decisions from a fairly specialized court about what the law means. Much like
corporate law in DE, one could consider a "common law" approach, whereby the
courts would attempt to find a set of laws that would best promote the goals
described above. In Federal Circuit jurisprudence, there have been many
attempts to reconcile and improve the patent system but they have been
reluctant to make broad changes like those described in the article. The
reasoning goes that the courts are afraid (I think with good reason) about
what might happen. I believe this is one contributing reason. Another might be
that the court is fairly conservative (not a lot of free market easterbrook-
posner type guys).

I do agree however that large scale reform would necessitate legislative
action, and perhaps some of the authors points would require this.
Nonetheless, I think there is about 0% chance that many of these changes
happen via the legislature. Examining the past, much, if not all the change,
after the patent act (which was passed in I think 1952), has been judicially
mandated and described. Legislators dont want to touch this for the same
reason. The system works ok (not great), other countries copy us, and if we
change it, who knows whats going to happen. Maybe this is a little bit of a
rant, and I apologize for being terse in my initial description. I do believe
though, that the author does himself a disservice by taking describing himself
in the way he does, because if he was proposing a unique and passable patent
reform, it would be hard for 1) politicians, 2) academics, and 3) legal
professionals to take him seriously.

Thanks for reading, assuming anyone makes it this far!

