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The Case Against Patents (2013) (aeaweb.org)
178 points by barry-cotter 5 months ago | hide | past | web | favorite | 135 comments

I never thought that the case for patents was to increase productivity. I always thought that their purpose was to eliminate trade secrets: people are going to invent stuff whether you want to or not, but without patents, they'll take the secrets to the grave.

My favourite patent of all time is Michael Jackson's smooth criminal patent:


This is the patent system working as intended. A magician revealing his tricks. Tell us how you did it, and in exchange we promise to not compete with you for a while.

The patent system could work if patent clerks had the time to be a lot more discerning and reject any patent that is obvious or already known. But it takes a lot of work to do that and the deluge of patents makes it impossible to give each application sufficient consideration.

I think the general idea of patents is good, but perhaps it's impossible to execute it correctly.

Edit: Should have read the damn article. They address concern further below and also argue that patents are not revealing any secrets because pattent attorneys are not qualified to judge the merit of patents and because the way patents are written makes it almost impossible to reproduce their results, and sometimes patents are granted for utter nonsense, such as moving "through the fifth dimension".

Not that this would be an efficient use of anyone's time but...

Assuming the purpose of patents is 1) to eliminate trade secrets, 2) that patents must be novel, and 3) that patents must be non-obvious to someone skilled in the art, then perhaps a solution would be: take a handful of people skilled in the art, tell half of them to implement the patent and tell the other half only the end goal and see if any of them come up with the same process.

The first group would help to see if the patent is written well enough. If they can't implement it then your patent is automatically rejected.

If anyone from the second group comes up with the same process, then that's an automatic patent rejection. Even if they don't, it's still helpful information for the patent examiner. For example, if they can solve the problem, just not in the same way as the patent application proposes, perhaps the patent examiner will see that the patent isn't necessary. Go ahead and have your trade secret, the public can obviously solve that problem with or without that knowledge.

the costs of your system are probably way more than the value created for society via patents.

I agree. I probably should have stressed that more in the initial disclaimer. It is possible (though, again, unlikely) that it might not be as bad as it initially sounds simply due to fewer bad patents being submitted if the submitter knows the patent application would go through such an extensive process. There'd be a lot fewer vague patent applications and a lot fewer applications for stuff that's obvious.

I generally feel that the cost of patents isn't worth the value they've created. Once one factors in the costs of lawsuits over stupid/obvious patents, patent trolls, the cost of patent attorneys, the increased cost of goods due to patents, etc, etc, the value of patents generally shrinks considerably. Being sure only good patents get through could go some way to increasing the value of patents to society, and thus might be worth the extra cost.

Then again, I'd rather patents just be dumped unceremoniously.

If patents are ended, that’s pretty much the end of >95% of small-molecule pharmaceuticals.

That may be true, but I suspect you're underestimating the value created by patents. Three examples:

1) Patents enable "benevolent monopolies." Companies that can afford to splurge on fundamental research because they have a revenue source protected by some sort of barrier to entry or network effect. Xerox PARC, for example, created many of the technologies fundamental to modern computing. PARC was bankrolled by Xerox's near-monopoly on copiers, which was enabled by Xerox's patents. PARC's decline closely tracks what happened after the 1975 consent decree in which Xerox was forced to license its patents to Japanese competitors.

2) Patents enable business models that separate design from production. ARM and MIPS, for example, design chips incorporated into designs from myriad manufacturers. How much value has been enabled by proliferation of these IP cores? You may point to things like RISC V, but that only proves the point. RISC V followed 15 years after the first ARM licenses, and has a fraction of the capital backing it. It's a lot harder to raise capital to build designs with the idea that you're going to give away the work product for free.

3) Patents enable technology sharing. Dozens of different companies have technology that is included in DVD, Blu-Ray, 2G/3G/4G, Wi-Fi, etc. Companies contribute the results of very expensive R&D efforts to these openly-published standards because they can ensure they get a cut of the value created by that technology. If they could not, there would be strong incentives to keep that technology secret instead. You might point to the success of web standards in the absence of patent protections. I'd posit that the web is the exception not the rule, and it's an exception that exists because of how easily the web can be monetized with advertising. That monetization strategy is not widely applicable.

Great, let's see what the fine article has to say about these things.

1) "In less than 30 years, the flow of patents more than quadrupled. By contrast, neither innovation nor research and development expenditure nor factor productivity have exhibited any particular upward trend." In other words, more patents does not appear to encourage people to splurge on fundamental research in aggregate.

But it gets worse, "The cost of litigating patents is not insubstantial either. Bessen and Meurer (2008) used stock market event studies to estimate the cost of patent litigation: they estimate that during the 1990s such costs rose substantially until, at the end of the period, they constituted nearly 14 percent of total research and development costs." So at least we've identified where some of the money being brought in from all of these monopolies is going (it isn't to the scientists and engineers).

2) It also enables business models that allow taking money from people without contributing anything at all. "On the other hand if a patentholder does not produce a marketable product and hence cannot be countersued---like Microsoft in the phone market or other patent trolls in other markets---then patents become a mechanism for sharing the profits without doing the work. In this scenario, not only do patents discourage innovation, but they are also a pure waste from a social standpoint."

3) "The downstream blocking effect of existing monopoly grants on incentives for future innovation has greatly increased in recent decades because modern products are made up of so many different components. The recent---and largely successful---efforts of Microsoft to impose a licensing fee on the large and expanding Android phone market is but one case in point. ... Microsoft is attempting to charge a licensing fee solely over a patent involving the scheduling of meetings---a rarely used feature of modern smartphones. ... Hence, the main dynamic general equilibrium effect of a patent system is to subject future inventions to a gigantic hold-up problem: with many licenses to be purchased and uncertainty about the ultimate value of the new innovation, each patent holder, in raising the price of his "component," imposes an externality on other patent holders and so charges a higher than efficient licensing fee." The externality isn't just on patent holders. Later, quoting Bill Gates: "A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose."

Having participated in these kinds of technology sharing efforts, I can assure you that the value extracted is basically unrelated to the actual value of the innovation, and mostly defined by the (current or expected) network effects of the technology in question and the political clout of its proponents in convincing other people to require its use. I.e., you're not paying for an invention, you're paying for a standard, and making standards is not something that requires external incentives.

As for monetization: "At the opposite extreme we have, again among many, the example of the Cornish steam engine discussed in Nuvolari (2004, 2006). Here engineers exchanged nonpatented ideas for decades in a collaborative effort to improve efficiency." I don't think they monetized it via advertising.

> So at least we've identified where some of the money being brought in from all of these monopolies is going (it isn't to the scientists and engineers).

You're not trying to minimize litigation costs, but rather maximize R&D investment net of litigation costs. So the question is, if competitors could quickly copy the results of R&D efforts, would R&D investment be more or less than 14% lower? Also, it's not like litigation costs under those alternative regimes would be zero. At the end of the day, the free-rider problem is a real economic problem and permitting it undermines market efficiency. One can imagine alternative models for addressing it, but those frameworks will have a cost too.

> It also enables business models that allow taking money from people without contributing anything at all.

That incorrectly assumes that the only "contribution" is producing an end-user product. ARM, for example, doesn't produce end-user products. You can't go to ARM and buy Cortex A72 CPUs. When MediaTek produces an SoC integrating an ARM core, is the license fee an example of ARM simply "sharing profits without doing the work?"

> The downstream blocking effect of existing monopoly grants on incentives for future innovation has greatly increased in recent decades because modern products are made up of so many different components.

Hold-up problems are real, and there is a real question of how to properly value all the technologies that go into a modern product.

> I.e., you're not paying for an invention, you're paying for a standard, and making standards is not something that requires external incentives.

If standards don't embody important technical contributions, then why don't implementers rush to create alternative, unpatented standards? 802.11 has been out for more than two decades. Why do implementer companies continue to pay for each new generation of 802.11, instead of developing their own? If the choices truly are arbitrary, it should be trivial to avoid the relevant patents (indeed, everything in 802.11a should be out of patent by now, or close to it).

The idea that alternative monetization strategies are workable in the large scale is almost self-refuting. Patents don't preclude you from developing technology and releasing it into the public domain, so long as you get there first. But it seems like companies motivated by patent protection consistently "get there first." That is itself a validation of the incentive structure created by patents.

>If standards don't embody important technical contributions, then why don't implementers rush to create alternative, unpatented standards? [..] If the choices truly are arbitrary, it should be trivial to avoid the relevant patents [..].

The by far most important aspect of those standards is not of technical nature. It's the host of agreements between the involved parties to not sue each other into oblivion. The patents involved have long ceased to hold the role of drivers of technical innovation, it's about the sheer amount of legal ammunition they can provide, and they have been created in such an image.

Lots of technical fields (esp. in IT) nowadays are a veritable minefield, scattered with a huge amount of incredibly broad and vaguely written patents, often playing mix-n-match with prior art or other kinds of dubious validity (which nevertheless have been granted - while it has gotten better, the allowance rate of the USPTO was close to 100% around the turn of the millenium...), where the attempt to navigate around any violations is a herculanean effort, and hardly possible without a veritable legal team. (And you should let them do the patent search anyway: If you dare to try it yourself and someone sues anyway - hooray for treble damages!)

> The idea that alternative monetization strategies are workable in the large scale is almost self-refuting. Patents don't preclude you from developing technology and releasing it into the public domain, so long as you get there first. But it seems like companies motivated by patent protection consistently "get there first." That is itself a validation of the incentive structure created by patents.

There is a baseline level of research which will be done even without the patent system, e.g. because Verizon would rather spend fifty million dollars improving radio efficiency than an extra billion dollars in a spectrum auction. If you provide a patent system on top of that, they take the patent even if it wasn't necessary for them to do the research. That isn't proof the patent grant was the incentive for that research, only that it was the incentive to apply for the patent on it.

If you want the real numbers you need some way to distinguish those cases from the ones where the invention wouldn't occur without the patent grant.

>You're not trying to minimize litigation costs, but rather maximize R&D investment net of litigation costs. So the question is, if competitors could quickly copy the results of R&D efforts, would R&D investment be more or less than 14% lower?

I think you missed the part where, "during the 1990s such costs rose substantially." To give further evidence, from 2006 to 2012 the number of patent troll lawsuits increased by a factor of six [3]. But, "the US economy has seen neither a dramatic acceleration in the rate of technological progress nor a major increase in the levels of research and development expenditure." So the answer is no, all of this litigation is not encouraging R&D spending (for some reason).

> That incorrectly assumes that the only "contribution" is producing an end-user product.

Perhaps I wasn't clear. I'm not saying that ARM doesn't contribute value. I'm saying that a system that allows the separation of "design from production" also allows patent trolls, and you have to trade the benefits of one against the costs of the other. For the benefit of your one ARM example we pay the cost of 2,900 lawsuits by trolls in the year 2012 alone [3], making up 61% of all patent cases [4] (I wish I had more recent numbers).

> If standards don't embody important technical contributions, then why don't implementers rush to create alternative, unpatented standards?

You mean like <https://aomedia.org/>? They do, but I think that there are a few reasons that this doesn't happen more often:

(a) Avoiding patent thickets once they have already been created is incredibly hard work. Much harder than just developing the technology, in my opinion.

(b) It is even harder to collaborate without incurring substantial legal liability. But no such collaboration is required to create the thickets.

(c) Standards organizations often have policies which make it difficult or impossible to achieve these results, and many participants have strong incentives to prevent you from achieving them.

(d) Even if you make something "better", it is not "the standard". Displacing entrenched incumbents is incredibly hard (again, because of the network effects).

The places where you will see this happen is where there are business models that cannot support any per-unit royalty (e.g., giving away your software for free on the internet), because that provides strong incentives to make it happen.

Laptops and routers are not such an industry. They can just pass on the cost to consumers, who are not represented when these standards are set. This is the basic public goods problem.

Again quoting the article: "Notice, too, that many patent lawsuits have a public goods aspect. Consider a case in which the plaintiff is asserting that its patent has been infringed. If the plaintiff wins the lawsuit, by confirming its monopoly position it appropriates all the benefits of winning the lawsuit. A victory by the defendant, by contrast, benefits partly itself, but also other firms that might be sued by the plaintiff for patent infringement as well as consumers who would have a more competitive market. Thus, the defendant receives only a slice of the overall benefits from winning the lawsuit, and will be willing to spend less on such lawsuits than it would if it were to receive all the benefits." The parallel with getting your patent-encumbered technology into a standard vs. some other firm trying to keep it out is exactly equivalent. The correct play is for the other firm to just file their own patents, but this tragedy-of-the-commons result isn't exactly ideal.

[3] https://www.wsj.com/articles/SB10001424127887323469804578525...

[4] https://money.cnn.com/2013/07/02/technology/enterprise/paten...

> 2) Patents enable business models that separate design from production. ARM and MIPS, for example, design chips incorporated into designs from myriad manufacturers.

Their designs are already protected by copyright, though.

That only protects against literal copying. That’s useful where the expensive part of your R&D is laying out the gates, but not if the expensive part is figuring out how the gates should be laid out to achieve particular results.

If that were true, then no one would file patents for 36 years, they'd just enjoy copyright protection or 150 years.

> 1) Patents enable "benevolent monopolies." Companies that can afford to splurge on fundamental research because they have a revenue source protected by some sort of barrier to entry or network effect.

The value in "benevolent monopolies" isn't the revenue source. Money is fungible. If there is something worth investing in, it will attract VC money. And if a company has revenue from a monopoly, they could just as easily invest it in real estate or the S&P 500 as their own industry.

The value of a monopoly is that it excludes free riders from improvements. The best example of this was Ma Bell and Bell Labs. If you can improve the phone network, e.g. with lasers (fiber optics), or information theory (data compression), or transistors (microprocessors), then you can invest in those things and capture the benefits directly without incurring a competitive cost disadvantage, because you have no competitors.

But the AT&T monopoly wasn't due to a patent. They never expected their monopoly to expire as patents do. The patent monopoly isn't designed to be long enough to engage in this kind of behavior in general. Which is why we see this much more often in monopolists whose monopolies aren't derived primarily from patents -- AT&T, Microsoft, Google, etc.

And the other side of it is that you're excluding the whole rest of the world from making improvements. You have to buy your phone from AT&T. No modems, no iPhones, no third party ISPs or open internet. Just the original monopoly extended into everything it touches, with all the deficits that make monopolies terrible.

That this is a net-negative is the reason we have antitrust laws.

> 2) Patents enable business models that separate design from production.

The simple version of this where you have a core design but not a fab is solved by having the fab you use sign an NDA, or you can sell the secret to the implementer outright. The version where you design part of the core and someone else improves on it or you have multiple customers is really this:

> 3) Patents enable technology sharing. Dozens of different companies have technology that is included in DVD, Blu-Ray, 2G/3G/4G, Wi-Fi, etc.

The counterargument is that it's difficult to keep a lot of these things secret. And there are reasons to enter into technology sharing agreements independent of patents, like the network effects of interoperability. You want your movies to play on every customer's DVD player and your phone to work on every carrier's network.

The patented technology sharing cartels are also currently used to exclude new entrants to the market, or impose unrelated conditions like requiring all DVD player manufacturers to not let customers skip particular ads as a condition of the patent license.

The best case to be made for patents is that they prevent free riding. But that's maybe the biggest problem with the existing patent system -- independent reinvention is not free riding but is patent infringement. Which is the root of all patent trolling.

Drug patents on their own represent a 1 Trillion dollar industry world wide.

So, I doubt that's true. Really the patent office could spend 100 billion per year and still be a net gain for society. The problem seems to be many people have a lot to gain from a broken patent system, and most people don't care.

It's not exactly clear if patents help or harm the drug industry.

It's clear they play some very important roles, and the entire industry is structured around them. So, I sympathize with people that think it's too risky to change them. But I can't agree with that certainty on your comment.

Drugs are trivial to reverse engineer vs develop. So, without patents their would be zero incentive for private drug R&D funding.

It's very clear that patents are required by the drug industry before they will invest in Research or as often happens buy companies that have done research.

Now, if we give up all private R&D we could still manufacture existing drugs at much lower prices. But, turning over all drug research to non for profits and governments is a very steep price to pay.

PS: Ok their are some game theory based approaches where small countries could benefit from abolishing drug patents while benefiting from other countries research. But, that does not scale worldwide.

FWIW, we will probably need to figure out an effective way to fund non-commercial drug research anyway, since pharmaceutical companies are really only interested in certain classes of drugs (mostly drugs that treat symptoms of chronic conditions, rather than drugs which permanently solve diseases or drugs which treat short lived conditions).

This is an inaccurate portrayal of the pharmaceutical industry. Take CAR-T as one obvious counterexample.

I’m very open to being wrong here, but for the specific example of CAR-T, Wikipedia mentions that it was initially developed by researchers at a university in Israel. So not the pharmaceutical industry.

UPenn and Novartis brought Kymriah to market and Kite brought Yescarta to market. Universities can be great for discovery and sponsored research, but they are not leading the work needed to get to market and they are certainly not funding it. Universities efforts are the visible tip of the iceberg, pharma efforts are the bulk under the surface.

Thanks for the info. My comment was mostly coming from a place of having read articles like this about how antibiotics don’t really make money for pharmaceutics companies:


I see where you're coming from now. ABX (antibiotics) are a bit unique. New ABX are sparingly profitable because they are usually incremental developments instead of new classes of compounds. A new class would be lucrative. I see this as a reflection that ABX dev is a ridiculously hard problem with many failures. There are many working in this area, but not much to show yet.

Although Novartis and Kite brought them to market, aren't - from what I've read in several papers (correct me if I'm mistaken) - the vast majority of clinical trials in this area still publicly funded? (NIH/NCI grants)

Public funds are used up to proof of concept and sometimes early tox/CMC (often through a CRO), but the bulk of the funding for trials comes from industry.

> the costs of your system are probably way more than the value created for society via patents

Also in the case of MPEG?

The cost of creating artificial exclusivity, enforced by the state against natural human learning/discovering capabilities, is even higher.

Patents cover stuff that is already invented and put into public use. How does that go against natural learning/discovery?

Patents may stop someone from on purpose or accidentally copying someone else invention, but that isn't stopping discovery.

This makes sense when the price for discovery itself is very high compared to putting it into use. In many fields (especially IT/software/algorithms), the discovery/invention often isn't the main part of work (especially not when you look at what are the actual claims of many inventions in those fields), but creating a good implementation and/or improving on it.

There's a reason that software and algorithms weren't deemed patentable for a long time (and still aren't in certain jurisdictions - at least on paper).

People spend resources trying to discover things because they want to use them. If it turns out that when you go to use your invention, a patent troll jumps out from under the bridge to shake you down, people will be less inclined to spend resources trying to invent new things to use and instead just stick to the status quo.

What's the incentive on the first group to not just say oh it didn't work and then do their own implementation later?

Ban those people from doing that.

Now I'm curious if patent officers have ever been fired, sued, or prosecuted for profiting from the information in a rejected or granted patent.

How do you prove that's been done? You have to hire even more experts to review the reviewers, it's experts all the way down!!

> I always thought that their purpose was to eliminate trade secrets: people are going to invent stuff whether you want to or not, but without patents, they'll take the secrets to the grave.

Except that if you look at the history of inventions you'll notice that quite frequently several people invented the same thing independently at almost the same time (the phone for example). So the risk of losing a 'trade secrets' isn't that high..

Two people can hold the same (independently discovered) trade secret. If I slave away and re-discover the Coke recipe, I can keep it and use it as a trade secret. But if I intern at Coke and steal it, I can go to jail for trade secret theft.

A patent incents me to slave away and then requires me to teach the patent in exchange for a limited monopoly. Trade secret law only punishes me for stealing but incents me to keep secrets.

The trouble with trade secrets is that I have to be able to exploit my invention and still keep it a secret. I probably can't do that with the phone. So I wouldn't slave away working on that problem if the best protection I could get is a trade secret.

I mostly read patents about chemistry, materials, and electronics. I find a lot of older patents to be straightforward and informative. Occasionally I will run across a 21st century patent that is as readable, but they're a lot rarer now. If I had to estimate when the transition happened, I'd guess around the 1980s, maybe late 1970s. Weirdly, this is also about the time that academic publications appeared to decline in information-per-page and reproducibility-per-procedure.

The societal disclosure-value of the patent seems to be dropping off over time, both because reverse engineering has improved and because the body of a typical patent is becoming less informative about how to construct a useful embodiment of the patented invention.

That's because the PTO is granting garbage patents, even in the case of legitimately patentable inventions. It a main problem with patents today (along with the lifetime of a patent which was originally chosen during a much slower time for humanity's intellectual advancement).

You inspired me to look for US patent grants by year, which brought me to this table:


In 1963 the USPTO granted patents to 54% of applications. In 2015 the rate was actually slightly lower (52%). But as "The Case Against Patents" notes, the total volume of applications has soared. I kind of expected to see some sort of upward inflection around 1980 (Bayh-Dole Act) but didn't spot one by eye.

The growth rate just in this century is astonishing; there were "only" 288,811 applications in 1999. Total applications per year were below 500,000 as recently as 2009. They're now well over 600,000/year.

At the 70's - 80's our hyperoptimization cycle started. Before that society was focusing on expensive growth, since there was a lot of "empty space" created by the wars and recent science progress.

I agree. I think that all patents aren't created equal. We'd have less issues if software patents were only valid for like 5 years. You still have protection but you get rid of a lot of the trolls and the IBMs of the world having 10K patents. For more physical things, the protection can be longer since it takes longer to recoup your investment.

There often isn't even any "investment" in patents. Richard Feynmann would describe how his superiors would just walk around the labs and say, so! who has some ideas we could patent? And Feynmann's fellow scientists would say, well, you could grab this nuclear reactor and stick it into a submarine to power it, but that's pretty dumb and obvious. "Nonsense!" replied the superiors. "Patent that right away!"

I don't know how true it is that a lot of patents come just from employees sitting around navel-gazing in their free time and aggressive management telling them to write down those ideas so they can file more patents, but it seems believable that it would happen at least sometimes.

This is officially how the patent system at my company works. They just ask for patentable ideas related to what we've worked on.

For tech startups, patents are very important for staking out their product space. Those first 3-10 patents can be critical for funding or exits strategies.

A company that does not have patents around its core technology or products is worth much less than one that does have patents. If your ideas are not worth patenting (e.g., protecting) why should your investors keeping putting money in?

That's voodoo perpetuated by VCs, not real value. 99% of granted patents wouldn't hold up in court.

Look at the garbage patents Dropbox has, and and the fact that they haven't used those patents to sue competitors out of existence or licensing fees. https://patents.justia.com/assignee/dropbox-inc https://patents.justia.com/patent/8855605

including "logging into your account from your phone"


>That's voodoo perpetuated by VCs, not real value. 99% of granted patents wouldn't hold up in court.

The crazy thing is - the voodoo works: They don't even have to hold up! The threat of litigation itself and/or the patents being a bargaining chip in such litigations are enough.

I mean, look at the 1-click example: It doesn't matter that many of their claims were deemed invalid years later, the damage (direct: expensive lawsuit, preliminary injunction, settlement; indirect: chilling effect) has been done.

Yeah, that seems like the IBM (and others approach). The problem with 0 software patents is that any small player no longer has a window to be a first mover. Google and FB have thousands of engineers sitting around and if they could just duplicate the new idea without consequence there would be no reason to do their own research and no relief for the little guy.

> I think that all patents aren't created equal. We'd have less issues if software patents were only valid for like 5 years.

And we'd have even less issues if software patents were only valid for 0 years (i.e. not exist).

I would rather they front load the cost for the application fee, reduce the actual license fee. And then hire reviewers with a mindset to reject if it doesn't clearly describe how to recreate a process properly, or isn't unique or non-obvious. I think another extension to the standard for patent-ability should be does this patent make something less effective (as is often the case with extension patents).

The decline of practical enforceability in some patent areas has created adverse incentives with respect to how you use the patent system, leading to much of the mess you see today. As a practical consequence, less R&D is being patented since disclosure is not adequately protected, and patents are instead used strategically to increase the cost of reverse engineering a trade secret. This leads to the large number of patents designed with enough specificity to deny competitors access to technology without enough critical implementation detail to replicate the technology from said patent.

Even trade secrets often only buy you a small amount of time these days before a competitor reverse engineers your technology, so increasingly elaborate (and often futile) measures are being taken to extract an advantage from R&D that justifies the investment in the first place before your competitors use it against you.

Especially in computer science, as much as many people complain about algorithm patents, an enormous amount of state-of-the-art research is being solely done as trade secrets now and will never be patented or published. I suspect many people that strongly favor banning computer science patents would not be happy with the reality that this drives advanced computer science research to never be published at all. There is no longer a viable path for recovering investment in computer science research that involves publishing it, which should be cause for concern. (People that want to monitor the advancement of AI tech should find this reality particularly distressing, as it severely hampers their efforts.)

"Even trade secrets often only buy you a small amount of time these days before a competitor reverse engineers your technology" -- this tends to undermine the idea that good algorithms would remain secret without software patents.

Someone else suggested that you can hide some kinds of algorithms if you only provide software-as-a-service. That way there's never even a binary available for reverse engineering. The same applies for software that is used just internally, like if an aircraft manufacturer has their own geometric modeling kernel that aircraft buyers never get near. But even with NDAs for employees and no external distribution of software, good ideas leak as people change jobs and find inspiration from systems they built/used before. Sometimes the main thing you need to know is that a particular line of research was fruitful; exactly reproducing the original implementation is less important.

I tend to think that it would usually take less than the 20 years of patent exclusivity for a good, intended-to-remain-secret algorithm to diffuse out of a for-profit company, or to be independently invented again by somebody who will publish regardless of patentability. Pondering a world without software patents, is it worth it to learn about a good idea 10 years "late" (assuming secrecy is attempted), in exchange for being able to freely use that idea 10 years "early"? I say with complete confidence: maybe.

tl;dr version: We currently have software patents and research is being kept secret. We should not ban software patents because then research would be kept secret.

Patents and trade secrets are tools for two different types of IP. If you've got a thing you can keep hidden, then you keep it as a trade secret. The quintessential example is a secret recipe like the formula for Coca-Cola or Google's PageRank. If you've got a thing you can't keep hidden, for example because it gets shipped to a customer and can be reverse-engineered, then you can apply for a patent on it.

Regarding a patent revealing trade secrets, an applicant really has no incentive to do so. A patent only needs to enable a person of ordinary skill in the art to practice the invention. That has been interpreted to mean without undue experimentation, meaning some experimentation may be necessary. [0]. And there is a requirement that a patent set out the "best mode" contemplated by the inventor, but a failure to do so doesn't result in the invalidation of the patent. [1].

[0] https://www.uspto.gov/web/offices/pac/mpep/s2164.html [1] https://www.uspto.gov/web/offices/pac/mpep/s2165.html

But the reason to eliminate trade secrets is to increase innovation, because other innovators can build on the released information to make new innovations. But in practice, at least in the us, that isn't what happens. Patents are often difficult difficult to reproduce They are in effect so long it isn't worth creating derivative works unless you have significant negotiating power (usually as a corporation), because then licensing your patent requires also licensing the original patent. And in some ways it is worse than trade secrets, because even if you reverse engineer a product, you can't make your own version without paying royalties.

I suppose one benefit of patents is to reduce incentives for corporate espianage.

Trade secret is becoming less and less issue these days. Nowdays information spread and leak like crazy.

It's actually better in many cases. For processes, in order to enforce the patent, you have to get a warrant (how can you prove from the product that the process was used?). A judge will generally refuse to grant a warrant to search a competitors premises because that would become an open door for anyone to disrupt their competitor's work.

And can be disassembled, decompiled and studied.

In some ways they are more powerful than ever since you can hide behind an API.

Suggesting that they’re “impossible to execute” correctly is a bit odd, as all US technology arose in the context of the patent system (the first Patent Act predates the Constitution).

You haven't given any evidence that it arose because of that system or in spite of it. There are plenty of examples going back to Singer sewing machines [1] and the Wright Brothers [2] that demonstrate that the surest way to delay the widespread deployment of any transformative technology by many years is to patent it.

[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354849

[2] https://en.wikipedia.org/wiki/Wright_brothers_patent_war

You can also find dozens of examples where investors pour billions of dollars into developing technology because they know they can patent it and won’t immediately be undercut by free riders. I’m typing this on a machine that has CPU technology licensed from ARM, GPU technology licensed from Imagination Technologies, and cellular technology licensed from dozens of companies. Those companies did, in fact, invest in all of those technologies in reliance on patent protection for the resulting developments.

One can imagine alternative ways to monetize that R&D. Unfortunately, the main alternative historically was proprietary products and vertical integration. But one can imagine there is something better.

The claim wasn't that the system is "unworkable" in the sense that it's causing world hunger or something, but that the system doesn't "work" in the sense that, in aggregate, it's not "promoting progress of the useful arts."

People will certainly use patent protection where it is available to them, but that doesn't mean they wouldn't have invested in those technologies solely on the basis of first mover advantage [0], and the lack of any observed effect of strengthening the patent system and increasing the scope of what is patentable on R&D spending tends to back that up.

[0] ARM would need a different business model, but it's unclear to me that other business models (i.e., Intel's) wouldn't have been just as successful, and wouldn't come with the social deadweight loss of patent trolls highlighted in the article.

>ARM would need a different business model

Why? there's actually legislation specifically tailored to these kinds of problem, and it seems to work well:

https://en.wikipedia.org/wiki/Semiconductor_Chip_Protection_... (And it's equivalents in other parts of the world)

Not everyone agrees about the aviation patents:

"We show that despite the existence of basic aircraft patents, aircraft manufacturers faced no patent barriers in the market dominated by government demand. We show that the notion of the aircraft patent hold-up is a myth created by government officials and used to persuade the Congress to authorize eminent domain condemnation of basic aircraft patent" https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673

Glad to see your edit. They also point out the theoretical backing for patents not having this functionality: if a trade secret is expected to stay a secret longer than a patent lasts, companies don't file patents (why would they?) They themselves admit some holes here, but cite a general consensus that patents fail to act this way, both empirically and theoretically, in most cases.

> I think the general idea of patents is good

Also, there may be a fundamental difference between physical inventions, where patents seem to make sense, and mathematical theorems (and computer algorithms), where patents do not make sense at all.

The difference is between a specific invention vs. a law of mathematics or nature. The latter absolutely should not be patentable.

The negative opinion of patents around here comes from the fact that most people here are programmers and the vast majority of software patents are trash. I've seen very few patents on software that are not "obvious to anyone skilled in the art," patents on abstract mathematical concepts, or patents for which there is ample prior art in the literature or open source code repositories.

Telling the difference requires a great deal of conceptual thinking. Patent examining is "strong AI hard." I think it is possible to expand on these ideas to some useful extent. Obviousness for example could be explained as first-order connectedness is the evolutionary/learning state-space graph. Something is obvious if getting from current art to the new idea requires only one "hop" through state space or traversal of a densely connected region of state space. Non-obvious means some kind of great leap across state space or long journey through many indirections was required. It's basically a measure of creative labor.

The RSA patent is often cited as an example of a decent software patent: original, a specific well-bounded invention for a specific purpose, and non-obvious in the extreme. Another example would be if whomever Satoshi is had patented proof of work block chains since that would also meet those criteria. Of course patents on cryptographic systems tend to result in them not being used, but that's a separate issue.

> The difference is between a specific invention vs. a law of mathematics or nature. The latter absolutely should not be patentable.

I do not understand the difference between the two. As a mathematician with an interest in philosophy, I would say that about 50% of mathematicians would agree that algorithms and theorems are discovered, not invented.

Thus, your example of RSA as a "good" patent sounds preposterous to me. The RSA algorithm was discovered, and it is a law of nature as much as the Euclidean algorithm to find the gcd. I find it honestly absurd that it can be patented (not angry, merely surprised).

That's a bit of reductio ad absurdum. The RSA algorithm is a "law of [mathematical] nature" as much as a log cabin is natural. The composition of natural building blocks into something that performs a function is a work of human ingenuity.

That said, RSA itself probably would not be patentable today. The Supreme Court's decision in Alice probably precludes pure algorithm patents. You need an algorithm in the context of a specific use case. For example, a cell phone that uses RSA to encrypt keys to protect data in flash memory.

A modern RSA patent application would get past Alice. It is a protocol that could be described/claimed in the context of communication between computers. Where the protocol improves the performance of a computers or communications because X,Y, or Z and improves the security of the session.

This seems like as good a thread as any to mention one of my favorite unrealized enterprises: Patent Trolling for Good (PTG)

The idea is simple: take the traditional model of a patent troll, but alter the settlement terms to create a cascade that ultimately ends or significantly reduces the exclusive ownership of facts (aka IP).

Patent Trolling for Good acts like a traditional Patent Troll in that it takes any IP it has and aggressively uses it to make claims against other firms/entities.

However, instead of just seeking cash, PTG offers two options:

- Pay us a lot of cash

- Join PTG. By joining: 1) all of your IP can be used by PTG to sue others and 2) everyone in PTG has automatic rights to any IP held by others in PTG

And of course, anyone is welcome to join PTG at any time. You don't have to wait to be sued to join :)

I've brought this idea up with VCs and lawyers a few times across the years but I've never gotten any bites. If anyone was ever seriously and credibly interested in pursuing it, I would give such an entity any and all IP owned/claimable by LBRY (https://lbry.io) and potentially a small amount of initial funding as well.

> exclusive ownership of facts (aka IP)

This is one of the weirdest definitions of IP I have ever seen.

You think a story is a fact? Stories are usually copyrighted and usually part of what people mean by "IP".

Facts are generally not copyrightable. You want to go and make a phone book or a map, you can. Other existing phone books or maps do not mean you can't make your own.

What about a distinctive trademark? Surely you agree that my company logo is not a fact. You want to use my company logo to sell your stuff? That would be deceiving customers if you started to sell your stuff under my name. Is the logo and distinctive mark a fact?

Rather than have an argument about categorization I'll instead respond to the core moral question.

I do not think it is moral to claim that you own a story or a logo in the same way that one owns a shirt or a cell phone.

(But yes, I think a story or a logo is much more like a fact than property. Though they're certainly less fact-like than other types of facts.)

_Claiming_ to be another company that you are not is something different entirely (fraud) and does not require IP.

The categorisation is important. Copyright is very different from trademarks is very different from patents. It is important to understand these different laws rather than saying that they're all about owning facts or owning whatever it is you consider "owning" to be.

The very term "intellectual property" is troublesome because it indicates the very ownership that you're objecting to. There is no ownership. And there is no property.

A patent is about disclosing inventions. Copyright is about giving the author economic and moral rights. A trademark is about making sure consumers are not deceived. It is a separate law than fraud. You can deceive by abusing trademarks without outright lying.

Patents can be infringed accidentally. You can infringe a patent without ever being aware of it. You cannot accidentally infringe copyright. The plaintiff of a copyright infringement complaint has to prove that you deliberately copied. Independent retelling of a story is fine. Independent rediscovery of a patented invention is not.

It is important to understand these laws, their origin, their purpose, and their nuance, whether you agree with them or not, in terms of the rights they grant and what constitutes infringement. Making the analogy to property and ownership is misleading and leads to the wrong conclusions about how these laws work.

Know thy enemy.

Trademarks: Who Copyrights: What Patents: How

Many do not realize that utility patents generally protect how something is done, not what was done. Inventors will often say, we can't patent that because someone else does that thing already. But it is the "how" that matters not the "what."

For example, even though the paper mention Amazon's one-click patent, there are probably 100's of other shopping cart patents that claim different methods of making an ecommerce shopping cart work.

US Trademarks protect against consumer confusion. The policy is based on protecting the public not the trademark holder.

Trademarks are also defend-it-or-lose-it. That is why companies aggressively sue to protect their trademarks. If they do not actively defend their marks from infringement they will lose their rights in the undefended marks.

It seems to me that a potential flaw with this plan is that mounting patent litigation costs money, so if everyone just joins the PTG to avoid expensive patent litigation defense, then the PTG would not have any income to sustain itself. Its continued survival would require that a significant percentage of cases end up with cash winnings instead of the target joining the PTG.

To be sustainable it can't be TOO effective.

It would have to only allowing joining before a suit is launched or after all payments for misuse of its patents have been met.

Problem is, once it begins generating revenue, there is a chance it will want to continue doing so. The lawyers on staff don't want to get fired for lack of work, so there is a possibility it becomes a bad (or at least Chaotic Neutral) patent troll.

Or perhaps: let the PTG sue any company that sued any other company/indifidual for patent violations (rightfully or not; enforcing patents is always evil).

There are several (lots?) of defense patent networks.

This is an offensive patent network with the intent of proactively obviating or severely reducing patent enforcement.

Patent: The Gathering

I am against (all) patents on the following grounds:

The article talks about first-mover advantage.. it seems to me that the case for or against patents depends on how you model it.

If you model it as a single-shot prisoner's dilemma, then without patents, there is no incentive to make result of research public. This is a classical argument in favor of patents.

On the other hand, if you model it as a many-rounds prisoner's dilemma, then even without patents, it makes sense for companies to have a strategy which makes some results of research public, then hopefully piggyback on the research that was done by others and also published (that is, mutually cooperate).

It seems to me that the second strategy can only be viable if the results of the research are "infinitely divisible", that is, companies can make arbitrarily small steps in opening up their research.

However, I don't see any evidence that the research is NOT infinitely divisible, thus it seems to me that patents are not really needed for the latter to happen.

In addition, interestingly, economists generally approve patents as needed for someone to make the first move, but they don't feel the same about similar issues that happen in the market. For example, somebody needs to explore new market first or make a capital investment in a new field - economists do not call for government support in that. This convinces me that the rationale for patents is somewhat hypocritical defense of status quo (caused by rather arbitrary choice in the game theoretical model).

This dovetails with the case for enterprise open source quite nicely.

We continually make more and more complicated things. The time in which we iterate also decreases. I can see the argument that patents were useful at a time where an iteration could take decades or more. However, I'm sure we're well past the point of usefulness for any patent system.

A lot of decision makers in companies are stuck in the mindset of trade secrets because that made sense at one point. Your company made a widget. Your goal was to make that widget better than the other widget makers. You (at least believed that you) had some breakthrough that made your widgets better and continued to make widgets in that style for years without much change. In that time, you protected how you achieved the breakthrough. Patents helped with this.

Today, a lot of the money is not really in creating widgets. It's in creating digital recreations of widgets (e-widget) that accomplish the same task [0]. You don't pay much overhead per copy of e-widgets, so prototyping and "mass production" is fast and cheap. You can iterate at increasingly faster paces. It is not worth it to you to protect how you differentiate your e-widgets once it comes out [1]. You're already working on the next version. If you spend a lot of resources on protecting how you achieved your previous iteration(s), you are doomed to fall behind [1].

Once a company falls so far behind, it makes more sense (but only in the short term) to double down on your protection efforts. This is how we end up with the cable company ISP situation in the US. It is easier [2] to fight in the legal system than it is to a) spend on the R&D to improve your networks and b) actually roll out those changes.

These are just my observations. I have some ideas on solutions but obviously don't really know what would work. I doubt any one thing would work for every company, but I know (long term) a lot more are either going to need to adapt to a more open mindset or continue to spend more and more to protect their closed mindset. The latter is probably more likely for the foreseeable future.

[0]: Realistically, the real money is in trading investments in potential value of creating digital recreations of widgets, but that's a different conversation. At some point, you usually have to create the widget / digital recreation, so we'll continue to talk about that.

[1]: Unless you're a patent troll.

[2]: Cheaper.

IP is fundamentally different from property as me know it.

Something is your property if you have exclusive control over it. Since IP is not exclusive (two people can have the same thought), it is not property.

Patents are the worse form of IP, since it is possible to accidentally infringe on them.

Copyright is almost as bad, especially at current timespans, and because it has such a chilling effect on the internet and other media.

Trademarks are essentially just defenses from fraud, so they aren't really IP.

As gowld already pointed out, the distinction between traditional property and "intellectual property" is not as strong as it is often painted.

I would say for the larger part, the exclusivity in both is artificial. As gowld points out, for many physical things there exist fair sharing schemes. And historically, when public lands were enclosured to become private property, it was an artificial process which explicitly created the exclusion. This exclusion wasn't needed from economic point of view.

If I hang out in your house and borrow your computer when you aren't home, I'm not depriving you of anything. Yet your property rights can be wielded against me. Why?

The case against patents has a moral dimension as well as a utilitarian one. This article is about the latter. Stephan Kinsella makes a good argument for both [1]. Ideas are free and can't owned.

In a way, enforcement of intellectual property rights infringes on physical property rights. If you come up with a process P to assemble certain kinds of physical widgets together, your claim on the patent for P prevents others to use those kinds of widgets in a certain way, even when they own those widgets fully.

[1]: https://mises.org/library/against-intellectual-property-0

Restrictions hinder innovation, development and technology. And patents are such restrictions.

The worst cases are the ones that grant monopolies on common or important technologies. They can completely block the progress in certain areas. Even companies with patents stop with innovation until the patent has run dry, if they do any innovation at all.

FYI, there was an article about a new patent bill on the front page yesterday, but it dropped off rather fast: "US Software Patents are back with HR 6264 section 7" https://news.ycombinator.com/item?id=17492196

I think patents should be replaced with prizes. People can propose problems which needs solving and then private individuals and/or government can pledge money to donate to whoever finds a solution to the problem first. However the winner doesn't own the idea. It must be made public.

Does the proposer also get compensation after a solution is found, or only the solver?

The authors summarize as:

> ... there is no empirical evidence that [patents] serve to increase innovation and productivity ...

This seems to be a fundamental misunderstanding as to what purpose patents serve. The public benefit of a patent is that the information is public -- inventions which might previously have been kept secret are instead put into the light where others may use them. The cost to the public of patents are that such use must be deferred out of respect for the temporary monopoly granted to the patent holder.

That is, patents don't increase innovation or productivity -- that is by design. They are just a means of harnessing the innovation and productivity of individuals and encouraging them to make their work public instead of keeping it a secret. So it seems to me that the paper is arguing a strawman rather than making a useful point.

> The public benefit of a patent is that the information is public [..] > The cost to the public of patents are that such use must be deferred

But who does this benefit? The author points out that it benefits big/old ("stagnant") corporations rather than innovators. And that still holds, no?

Here's a thought experiment: if you're a small innovator and you invent something new (let's be evil: a software algorithm), what benefit does disclosure bring you? It's better to keep it secret, because big/old ("stagnant") companies will find legal loopholes in your patent application to work around it. Or, they will run it in the cloud and not tell you at all that they're running your exact algorithm. The innovator would never know.

Big/old ("stagnant") companies, on the other hand, have enough legal manpower to sue you out of existence regardless of whether their patent is valid or not. It's not the patent, it's the legal process that will bankrupt the small innovator.

Can patents be molded to protect the small innovator? Because isn't that the intent? Regardless of whether that protection results in monopoly, disclosure or both.

>Can patents be molded to protect the small innovator?

There's plenty of cases of a small or lone inventor making big companies pay for infringing a patent. I think patents are about the only protection for a small innovator to get enough leverage to enter a market.

As a small innovator myself, at probably every pitch I've ever made to investors, I've been asked immediately if I have patents. When I've looked at Chinese manufacturing for products, the first thing they ask is about patents (un-patented means they can copy and sell in a lot of markets, patented makes it harder for them to sell in markets where I have a patent).

There's also plenty of people that are skilled at invention, that don't work for a big mega-corp, and they make their living by being able to stop big corporations from simply stealing their product ideas and crushing them via bigger and better distribution networks.

Patenting a key aspect of a new item gets small players a seat at the negotiating table where a big player has to buy the product. Without patents this would rarely happen.

> The public benefit of a patent is that the information is public -- inventions which might previously have been kept secret are instead put into the light where others may use them

Can you come up with siginificant patented innovations that are not easy to reverse-engineer? I have thought that the raison d'etre of patents is to foster innovation.

I always mention the Michael Jackson smooth criminal patent. Is it easy to reverse-engineer? I don't know, it seems obvious once you see what it is, but it seems awfully clever if you don't know about it. A lot of people seem to believe that it would involve electromagnets, but the actual invention is more low-tech.

Maybe it was hard back in the days but nowadays good luck trying to keep it secret.

And how much our world would be a worse place if that innovation

1. Was kept secret 2. Had not been made in the first place?

(I had the key word "significant" on purpose)

“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.”

>That is, patents don't increase innovation or productivity -- that is by design.

Yes one part is to prevent trade secrets, but the idea is that by making trade secrets public, other people will have the ability to improve on the idea and make innovations that wouldn't have otherwise been possible had the knowledge been kept secret--not just that society gets to use that one invention.

The other purpose has nothing to do with trade secrets. There are many inventions that wouldn't be possible to protect with trade secrets. Patents are designed to make this kind of invention profitable to create--encouraging people to invent them.

Btw I'm not arguing that patents necessarily fulfill their purpose.

> The public benefit of a patent is that the information is public

They cover that in the paper.

More generally 'productivity' is being used slightly more abstractly here more in terms of general welfare, e.g. do patents serve to increase the productivity of the economy overall.

Interesting that many commenters use the 'make an idea public' argument for patents. However if reinvention and rediscovery of an idea doesn't happen that often then you why would you need patents anyway? Penn and Teller's Fool Us shows demonstrate that very few magic tricks are undiscoverable to other magicians. So just hire one to work it out. That increases the value of magicians and decreases the value of patent lawyers, patent reviewers, patent writers and the patent trade. Surely that is a good thing?

Drug patents are ten years. It's common to say without patents no drug company would spend the billions it takes to bring one drug to market. But I remember doing the back of the envelope math in college on the socially optimal length of a drug patent based on the cost, profit motive and public benefit, and it worked out to only about three years.

I think it could be argued that the entire mechanics of drug development (and costs) would be fundamentally different in an environment without patents. Without the incentive of monopoly, there might be a lot more evolution (think of forking/branching of open source software projects) of meds, which I imagine would significantly alter the costs/incentives in drug development. These are kind of just my thoughts as a layman, though.

US drug utility patents last 20 years from filing date.

Also, the US FDA has another restriction called "exclusivity period." An exclusivity period can be anywhere from 6 months to 12 years depending on what kind it is. It runs independent from the patent term (if any)


Post-AIA, US utility patents (including APIs, biologics, methods of manufacture/use, etc.) are 20 years with possible adjustments to term length.

I was in college a while ago :) Appreciate the correction

Is that assuming the patent only comes into effect when the drug reaches market?


> doing the back of the envelope math in college

Sounds rigorous

The pharmaceutical industry is usually given as the prime example of an industry where patent protection is necessary; however, this is far from obvious. See Robin Feldman's book Drug Wars (there is an interview with her about it here: http//www.econtalk.org/robin-feldman-on-drug-patents-generics-and-drug-wars/)

I would solve it with a combination of public funded research and prizes awarded to those solving important medical needs.

Question for anti-patent folks. Do you like a system where Chinese companies just copy products listed on Amazon and sell them for less?


Fair enough. I think it would promote copying instead of inventing. Not sure how that ends.

That would prevent unnecessary "innovations" to refresh IP. You cannot keep everything secret.

Nice name drop

> We are grateful to the editors, the referees, and to Richard Stallman for a careful reading and comments.

Dragging out the old one-click patent I see. I guess I missed where the development of ecommerce was stymied by this patent.

A patent can promote innovation in at least two ways: (1) rewarding the inventors for their toil and risk taking; and (2) by forcing competitors to try to solve the same problem with a different solution.

People seem to forget about the second one.

(1) is addressed by the article. As for (2), well... do you have any evidence this outweighs all the downsides of the patent system?

Most of the so-called downsides of IP are subjective or viewpoint based. Or, they are imaginary/hypothetical.

But there is this, countries with the strongest IP protection are the most innovative and successful. So there must be something beneficial going on.

Needs a [PDF] tag

Sleep deprived from go live, I misread this as "The Case Against Patents."


PARENTS I mean parents. Ugh


Meanwhile the Intellectual "Property" wants patents treated as real estate and the party of corporate interests is in power.

wants? this is the way it has been done for a long long time in the US (the first US patent grant was from George Washington in 1790), there is Property category where there is at least Real Property & Intellectual Property, patents which are in the Intellectual Property 'bucket' so to speak

There are multiple of forms of intellectual property beyond patents: copyright, trademarks, etc

This is the way the legal system has always worked, not an invention of a modern corporate interests, the ancient Greeks recognizes some forms of patent, the modern version is based around the implementations of Italy's patent system in the 1400s: https://en.wikipedia.org/wiki/History_of_patent_law

no conspiracy here....but yes corporations do like to see a return on their significant research and development investments

There is no intellectual "property", merely a temporary exclusive grant made by the public to encourage the arts and sciences. To call it "property" is, as I warned, the goal of the "IP" industry in equating a patent as no different from a house and land. Then it magically becomes some sort of right, but one is fundamental a restriction of your own fundamental human rights because a patent can be accidentally infringed.

A patent can be accidentally issued, but it can be hell to accidentally UN-issue it. Meanwhile the patent constraints your actions and speech through its power. And we want to treat it like a house? The house limits what you may do upon that land, a patent limits what you may do anywhere any everywhere. And you don't even need to know the patent "property" upon your actions even exists.

Intellectual property is real. Try stealing some IP from Apple and see what happens -- something real will happen.

IP is as real as any other legal construct, such as, contract rights. The term intellectual property is a term of art that just happens to model some of the analogues that exist between intellectual property, real property, and personal property.

wow at first I thought it said "Against Parents." I think I need glasses....

I saw "Against Patients", for some reason

A patent is, first and foremost, a fence. It creates property rights. Do fences increase productivity? Should they? It probably is more productive if your neighbor's dog shits on your lawn, or your clever invention is taken apart and immediately copied by a larger competitor. But is it right?

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