The Case Against Patents

[craigr]

One more thing on this because it relates to protecting property. A factory and home are protected private property. Nobody denies this. I would just suggest that ideas can and should be protected the same way. While it is hard to go and simply steal a house or a factory, ideas have no physical presence. They are easy to take. But the theft can do just as much damage as taking physical property, sometimes worse. It can bury entire businesses.

[Pointedstick]

I don't need to trademark or copyright my own name to make it fraud for you to tell people you're me.

None of us object to a company that works hard to establish a reputation for quality defending that reputation by suing counterfeiters for fraud, but fraud is very different from copyright or trademark infringement and can exist wholly separate from them. The harm is misleading consumers by presenting your product as something it's not. The counterfeit products example I think is a really bad argument for trademarks and copyrights and such. A better argument would be if the Chinese cloned the knife perfectly and sold it at half the price (have they even managed to do this?). But wait a minute, I thought we believed competition was good! This comes dangerously close to the "predatory pricing" nonsense that sometimes oozes out of the left.

[craigr]

Ok so why couldn't they just clone the knife identically and put their name on it? Why should the initial designers who put in the work and effort continue to innovate when they know someone can steal their entire design and sell it against them immediately? They'd be total suckers to continue doing that. But that is why you have design trademarks and patents so you can go after clones, even if not using your name specifically. And I say God bless Em'! If they can't make it themselves you aren't obligated to just give your competitors your work.

[l82start]

it is not like the patent lasts for ever, your creative work is only protected for a limited time (unless your Micky mouse) then competitors are free to use that intellectual property benefit from your work and try to beat you at your own game, why is it so bad to have to wait while the guy who invented it or came up with the idea makes as much of it as he can ?

[MachineGhost]

Craigr, I'll remember that story, and refer people to it when they question not only patents but also copyrights.

What does showing people the obvious have anything to do with using coercion to achieve unlawful profits?

[Pointedstick]

Interestingly enough, I have some experience with this since I sell 3D printer parts and our industry has recently been deluged with honest-to-god Chinese clones. I'm talking about total copies with a different name (since the designs are open source), just like craigr's doomsday scenario.

The effect? Not much. The community is so outraged that they actively work to spread the word against the cloners. The cloners are Chinese and so their service and support are terrible. And the materials they use are shoddy. They don't get any repeat customers. The effect has been well and truly negligible.

Another interesting thing is the fact that there even are companies who invent new printers and immediately open-source the designs (http://www.thingiverse.com/thing:31412). This company AlephObjects is making money hand over fist right now! It goes both ways. Their latest printer is an original design that they made open-source, but the last model they sold was a refinement of an open-source design made by a member of the community who in fact sold it himself. I know both of them, and the inventor profited handsomly, as did the other company AlephObjects who was competing with him scarcely three months after he came up with the design. I profited pretty handsomely too since I sell replacement parts!  I even built several of those machines myself. We didn't all lose; we all won.

I live this stuff every day and I have to say, I just don't see the nightmare scenario of openness, freedom, and voluntary lack of IP causing the death of innovation. If anything, I feel like the pace of innovation is exhausting. With everything open-source, there are so many refinements made all the time that I fall behind if I stop checking the forums for a day!

[MachineGhost]

Should these companies not have the ability to protect intellectual property, design features and their name?

Doesn't coercion drive up costs that counterfeiters then exploit?

You can't complain about counterfeiters doing so when the term is merely a symptom of copyright and patent laws.  If there were neither law, there would be no counterfeiters, they would be called competitors.

[MachineGhost]

framework. Anything can be used for bad purposes, but intellectual property law does have a purpose, much of it borne out of real world bad experiences.

Really?  I'd like to see this pre-1776 historical evidence that prompted the Founders to stick copyrights and patents into the Constitution.

[craigr]

If there were neither law, there would be no counterfeiters, they would be called competitors.

Copyright and patents were put into the constitution for a very good reason. Nothing made it into that document by accident. Obviously it was a concern back then as it was today.

[KevinW]

If you want to see a place that doesn't care about intellectual property, look at China.

Or all of human civilization prior to the 18th century. 

While it is hard to go and simply steal a house or a factory, ideas have no physical presence. They are easy to take.

Ideas are nonrival goods, which is critical to this whole debate ( http://en.wikipedia.org/wiki/Rivalry_(economics) ). If I use your house or factory, then you can't use it. We're in a zero-sum game with one winner and one loser. If I use an idea you know, that has no effect on your use of the idea whatsoever. You are the same and I'm better off. By the non-aggression principle, person A shouldn't be able to prohibit person B from doing things to help themselves which have no effect on person A.

Also, per prior arguments, I would say that ideas have no owners and so they cannot be "taken."

Ok so why couldn't they just clone the knife identically and put their name on it? Why should the initial designers who put in the work and effort continue to innovate when they know someone can steal their entire design and sell it against them immediately?

Maybe to get a first-to-market advantage, or build a reputation as a leader in the field?

You can't patent a recipe, fashion design, dance, or game rules, and yet there are profitable industries engaged in creating all those things. Fashion is an interesting example because blatant clones are widely available and yet the name brands continue to innovate and rake in profits. They've successfully differentiated themselves and found a business model that works in the absence of IP.

Another one is the automotive industry which has had a de facto patent armistice in effect for ~100 years. Volvo developed three-point seatbelts and within a few years all the other manufacturers had them too, but Volvo didn't try to sue them all into oblivion. In fact the idea of sharing technology is so ingrained that US legislation requires seatbelts, effectively mandating that everyone use Volvo's ideas. The same goes for many other auto technologies. Yet manufacturers continue to innovate, and compete more on the basis of execution of widely-known ideas than on monopoly control over individual features.

[Tortoise]

"It is difficult to get a man to understand something when his salary depends upon his not understanding it." - Upton Sinclair

Pointedstick is one of the only ones in this thread who has even briefly mentioned the effect of IP on consumers; everyone else has been focusing solely on the effect on inventors/designers. As Henry Hazlitt wrote in his classic Economics In One Lesson, "The art of economics consists in looking not merely at the immediate but at the longer effects of any act or policy; it consists in tracing the consequences of that policy not merely for one group but for all groups."

Innovation and imitation are two equally important phases in the creation of prosperity. Whereas innovation gives birth to the thing--certainly important!--imitation is what replicates that thing and spreads it across the globe to as many consumers as possible for the lowest possible price. So consumers benefit tremendously when they demand something highly, businesses take notice and start imitating that thing, and the price gets driven down due to increased availability.

As for the argument that innovators would cease to innovate in a world without IP, that's a very simplistic, materialistic, "carrot-and-stick" view of the situation. Human motivations are (thankfully) more complex than that, as Daniel Pink convincingly explained in his book Drive: The Surprising Truth About What Motivates Us. As others in this thread have pointed out, there are current and historical examples of industries in which innovation has managed to forge ahead relentlessly in the complete or near-absence of IP.

[l82start]

i still haven't heard a good answer for why having to wait to use somebody's idea is such a hardship on the world, i get tortoise's point that it works against the consumer but only for a limited time and only if other people don't take their own innovative step to provide their own competitive idea that doesn't violate the patent. if there is such a hardship caused by patents why not just lower the time they can be held for? why do away with them altogether?

a garage inventor would have no way to protect his idea and develop it if the idea is good, if anybody with money and production capacity came along and started to build them they would get nothing, its hard to see how not having any protection would be fair.

admittedly patents for Disney caricatures, genetics, and computer code may not be as straight forward as it is for some inventions, and like all human endeavors corruption has probably slipped in. but i am not sure that that disproves the need for patents. 

[craigr]

The inventor is putting their (and often investor's) money on the line to put out a new idea, not consumers. There is a ton of risk. An idea that gets good market traction is ripe for taking by better funded players. Investors have a much harder time backing new ideas if they think that the largest market player that may want to compete can simply walk in and roll their own product undeterred.

Without the inventor and investors feeling like they have a chance to build up a revenue base to sustain a new product, the consumer is less likely to see these new innovations.

Honestly, 200+ years of American innovation and inventing has proven this idea correct. No country has ever fostered such a wealth of technological advancement for the planet. For all the "damage" that intellectual property produces, it is tough to establish the case when you look around at what the US Patent system has enabled.

[Pointedstick]

a garage inventor would have no way to protect his idea and develop it if the idea is good, if anybody with money and production capacity came along and started to build them they would get nothing, its hard to see how not having any protection would be fair.

This is the key, right here. What would be the problem with some big company doing this? Ideas are great, but execution is where the real hard work comes in. a patent enables rent-seeking behavior of requiring someone else pay you to use the idea despite your not actually developing it or a product based on it. And if you don't want those rents and decline to license it, all you've done is prevent society from having the benefit of your awesome idea, because even if someone else independently comes up with the same thing, your patent entitles you to have the government use violence against them.

When you say "protect the idea" I hear "have the government use violence against anyone else--large corporation and hapless garage tinkerer alike--who tries to build what I've built." Let's not forget that a patent is a government-granted monopoly. That monopoly is as detrimental to the person who's never heard of you who independently comes up with the same thing as it is to the big scary corporation who somehow is committing a grievous sin by using your idea to bring a cool new product to market that will benefit consumers.

In the 3D printer industry, large corporations have patented things like obvious extruder designs, and now the open-source community cannot use those designs, despite the fact that dozens of people independently came up with the same design without even knowing about the existence of the Stratasys company or any of their patents. So now the patent acts as a sword hanging over our heads. We can't use or improve upon this design that's so obvious that dozens of people independently came up with the same thing, because then Stratatys could financially ruin us. All of my personal experience with patents has been very far from the case so frequently asserted that it allows the little guy to protect himself against the corporations that suddenly we think are evil and predatory by bringing products to market. Rather, it's been large corporations amassing patent portfolios broad enough to threaten smaller, less moneyed corporations or individuals to protect their favorable market position.

Honestly, 200+ years of American innovation and inventing has proven this idea correct. No country has ever fostered such a wealth of technological advancement for the planet. For all the "damage" that intellectual property produces, it is tough to establish the case when you look around at what the US Patent system has enabled.

One might just as easily say that our success vindicates the social utility of eminent domain, taxes, welfare programs, imperialism, the Federal Reserve, deficit spending, and all the other things that the U.S. government has done at the same time that our economy was throwing off colossal amount of wealth. The question is whether our prosperiity is due to these things, or despite them. Pointing out their juxtaposition doesn't prove either.



The only way to truly protect an idea is to not share it. Ideas were meant to be shared, transmitted, improved upon, re-imagined. Patenting an invention is quintessential rent-seeking behavior. You can debate whether or not it's beneficial for society, but at that point you're playing the same ball game as people who say welfare is good for poor people or that the Federal Reserve is good for the monetary system.

[KevinW]

i still haven't heard a good answer for why having to wait to use somebody's idea is such a hardship on the world, i get tortoise's point that it works against the consumer but only for a limited time and only if other people don't take their own innovative step to provide their own competitive idea that doesn't violate the patent. if there is such a hardship caused by patents why not just lower the time they can be held for? why do away with them altogether?

My position is that using the ideas in my mind is a natural human right. The ability to exercise rights does not need to be justified; the burden of proof is always on the side that wants to limit human rights.

Your argument seems to be "patents only violate human rights briefly, which isn't really that bad." That's a very slippery slope. By that reasoning, it's OK to lock up political prisoners, as long as it's only briefly. And gun waiting periods are A-OK, because constitutional rights are only suspended for a little while. Etc. Doesn't fly IMO.

[l82start]

a garage inventor would have no way to protect his idea and develop it if the idea is good, if anybody with money and production capacity came along and started to build them they would get nothing, its hard to see how not having any protection would be fair.

This is the key, right here. What would be the problem with some big company doing this? Ideas are great, but execution is where the real hard work comes in. a patent enables rent-seeking behavior of requiring someone else pay you to use the idea despite your not actually developing it or a product based on it. And if you don't want those rents and decline to license it, all you've done is prevent society from having the benefit of your awesome idea, because even if someone else independently comes up with the same thing, your patent entitles you to have the government use violence against them.

When you say "protect the idea" I hear "have the government use violence against anyone else--large corporation and hapless garage tinkerer alike--who tries to build what I've built." Let's not forget that a patent is a government-granted monopoly. That monopoly is as detrimental to the person who's never heard of you who independently comes up with the same thing as it is to the big scary corporation who somehow is committing a grievous sin by using your idea to bring a cool new product to market that will benefit consumers.

 i am not sure i get your point, had the idea been good i could still benefit from it (for a limited time) by selling the right to produce it when i didn't have the ability to do so myself, i made some efforts to market it...  without a patent the person i marketed it to could take the idea produce it and pay me nothing.  yes it is a government enforced monopoly but again "it is a temporary one" i am not Walt Disney and as soon as it expired anybody can produce it..  until it expired anyone that pays me can produce it unless i choose to sell exclusive rights which still only last as long as the patent..

My position is that using the ideas in my mind is a natural human right. The ability to exercise rights does not need to be justified; the burden of proof is always on the side that wants to limit human rights.

Your argument seems to be "patents only violate human rights briefly, which isn't really that bad." That's a very slippery slope. By that reasoning, it's OK to lock up political prisoners, as long as it's only briefly. And gun waiting periods are A-OK, because constitutional rights are only suspended for a little while. Etc. Doesn't fly IMO.

 let me see if i follow... using the ideas in your mind is a human right. using the ideas in your mind is also a human right for me and everybody else, even if it kills any chance that you could benefit from those ideas?  seems backwards to me.  patents protect your rights to use your own ideas and protect the rights of others to share in those ideas after you have your shot at making use of them..

[Xan]

The main question is: for any particular industry, is there more innovation because of patents, or less?  Do patents encourage or discourage progress and development?

I think in the case of software, it's clearly on the "discourage" side.  Therefore there should be no software patents.

[Pointedstick]

Very relevant: http://jacobinmag.com/2012/10/the-3-d-p ... s-enemies/

[MachineGhost]

Most 3-D printing has been done in industry or by hobbyists who share their designs freely online. Now Intellectual Ventures, the company run by Nathan Myhrvold, the former Microsoft CTO and alleged patent troll, has been issued a patent on a system that could prevent people from printing objects using designs they haven’t paid for.

http://www.technologyreview.com/view/42 ... event-3-d/

[Pointedstick]

Today's SMBC comic is also relevant: http://www.smbc-comics.com/index.php?db=comics&id=2761

[MachineGhost]

A new study shows patent trolls filed about 40 percent of infringement lawsuits in 2011. The study, a joint effort by a UC Hastings College of Law professor and Stanford Law’s Lex Machina, who provide intellectual property litigation data, sampled 100 patent lawsuits from each year from 2007 to 2011. The study found that patent litigation on behalf of “patent assertion entities”? – what the legal profession calls patent trolls – had almost doubled in the previous five years. The data isn’t perfect, since it doesn’t include lawsuits that settle without a trial – a big slice of patent lawsuits, which mostly bank on a pre-trial settlement – but it is an early attempt at providing more than anecdotal data on the proliferation of patent trolls.

http://arstechnica.com/tech-policy/2012 ... s-in-2011/