The Case Against Patents

[Pointedstick]

I completely agree. I also have very sad feelings regarding what my employer patents and uses to harm other companies. 

[Jake]

If you are interested in this topic, I highly recommend checking out the resources page on http://c4sif.org/ for some very good books about the problems with Intellectual Property overall, all from a pro-commerce perspective. I especially recommend Kinsella's short book "Against Intellectual Property".

[KevinW]

Yup. The patent system has become a lawyer arms race that advantages large established firms over smaller firms and individuals.

In practice, companies protect worthwhile ideas through trade secrets, not patents, so the patent system is not necessary.

Patents are one of Benjamin Tucker's "big four" state-enforced monopolies, along with money, land, and tariffs. ( http://en.wikipedia.org/wiki/Benjamin_T ... Monopolies )

[craigr]

I love patents. I have several of them. They saved my bacon when larger companies were sniffing around to copy ideas we came up with. They have problems, but they also have a lot of benefits for small players and innovators to protect their intellectual property.

[smurff]

It's important to be able to protect one's assets. Intellectual property-based assets need protection, and patents, trademarks, and copyright offer protection in a similar way that deeds protect real property assets. Some of the protection comes from signaling, in writing, where the intellectual property boundaries lie. If someone chooses to breach the boundaries anyway, the breach needs to be dealt with. 

(Related to that is how to deal with massive breaches, as from countries like China that don't have much respect of intellectual property rights. Massive breaches of real property tend to lead to shooting wars. I've wondered what the equivalent response should be to massive breaches of intellectual property.)

If we do away with patents, they will have to be replaced with something to deter squatters, who have done none of the hard work necessary to create the property in the first place.

The biggest problem I see with patents is they are being used to protect all sorts of intellectual endeavours yielding output that used to be regarded as part of the "commons."  There is also the issue of quantity.  A huge number of assets are being generated, only a small percentage of which can be exploited, and it is not intuitively obvious that many of the things put forth to secure as property qualify as patentable.

Also, patent disputes that go before judges and juries use the federal court system; it could be that an alternative dispute resolution process, including perhaps some sort of pre-use assessment, is necessary.

[KevinW]

It's important to be able to protect one's assets. Intellectual property-based assets need protection...

That makes sense provided that ideas can be "assets," which personally I do not believe. I do not grant that a person has a right to "own" an idea and block anyone else from using that idea. I think that's an arbitrary and unfair limitation on everyone else's liberty, enforced by state violence. That's my take anyway.

[MachineGhost]

If we do away with patents, they will have to be replaced with something to deter squatters, who have done none of the hard work necessary to create the property in the first place.

There's now 90,000 dietary supplements of which very few are patentable.  It's been a huge boon for the consumer and I don't see that it has crippled inventors or manufacturers from innovating.  Its all just crying over spilt milk with patent abolishment.

Everyone is always a pretend-Libertarian until their money train is threatened or they get mugged.

[MachineGhost]

That makes sense provided that ideas can be "assets," which personally I do not believe. I do not grant that a person has a right to "own" an idea and block anyone else from using that idea. I think that's an arbitrary and unfair limitation on everyone else's liberty, enforced by state violence. That's my take anyway.

+1.  There is no "commons" with ideas because ideas are private property.

[Pointedstick]

That makes sense provided that ideas can be "assets," which personally I do not believe. I do not grant that a person has a right to "own" an idea and block anyone else from using that idea. I think that's an arbitrary and unfair limitation on everyone else's liberty, enforced by state violence. That's my take anyway.

+1.  There is no "commons" with ideas because ideas are private property.

I agree with KevinW's take too, but I'm not sure I follow your logic. How can ideas be considered private property when they are not governed by the laws of scarcity and can be instantly duplicated and retransmitted?

[MachineGhost]

I agree with KevinW's take too, but I'm not sure I follow your logic. How can ideas be considered private property when they are not governed by the laws of scarcity and can be instantly duplicated and retransmitted?

Ideas exist in your brain and mind which you both own, therefore it is also private property.  Nothing to do with scarcity or replication.  For contrast, a fetus is a parasite and it is the woman's private property and she may do as she sees fit with it.  But we don't patent fetuses just because they're scarce and hard to replicate.

The real issue isn't stealing from the "commons" hallucinotion per se, it is of patenting unique biological processes of a unique person, a unique animal or a unique organism and then through coercion claiming you also own that very same process that may (or may not) exist in other private properties, i.e. a wholesale violation of private property rights to make a profit.  The patent system was not setup to facilitate that, but like every other government program involving coercion, it got perverted into crony capitalism. 

If this B.S. doesn't stop, we'll wind up patented designer babies owned by Big Pharma.

[smurff]

It's important to be able to protect one's assets. Intellectual property-based assets need protection...

That makes sense provided that ideas can be "assets," which personally I do not believe. I do not grant that a person has a right to "own" an idea and block anyone else from using that idea. I think that's an arbitrary and unfair limitation on everyone else's liberty, enforced by state violence. That's my take anyway.

Ideas are not intellectual property. Ideas exist in your head (so to speak), whereas intellectual property is created when education (knowledge), action, and physical material are applied in unique combinations to those ideas.

[smurff]

There's now 90,000 dietary supplements of which very few are patentable.  It's been a huge boon for the consumer and I don't see that it has crippled inventors or manufacturers from innovating.  Its all just crying over spilt milk with patent

Nutritional supplements are an example of things that are part of common heritage, making attempts to patent them folly.  That does not mean people won't try.  Sometimes they will settle for patenting certain steps in the manufacturing process, or trademarking a product name/logo.

[KevinW]

Ideas are not intellectual property. Ideas exist in your head (so to speak), whereas intellectual property is created when education (knowledge), action, and physical material are applied in unique combinations to those ideas.

That doesn't seem like a crisp dichotomy to me. What is the difference between ideas and knowledge?

After I learned the quadratic equation, I had to practice using it on homework. I applied action to writing with the physical material of my paper and pencil using my education from the day before. Is the quadratic equation now my intellectual property?

[craigr]

I posted this years ago on Morningstar. It sums up my ideas on patents and the arguments against them:


As a holder of multiple patents in the software industry I strongly disagree with eliminating patents. If it weren't for patents my ideas would have been quickly taken by much larger and better funded competitors and I would have been out of business. Patents on software do work and protect little companies against much more aggressive players and force them to the negotiating table instead of pirating your hard work.

The anti-patent people like to point out the absurd examples to make their case. For every absurdity though there are many more legitimate patents working to protect the hard work of the small-business owner looking to become the next household name. Also you'll note that most anti-patent people have never gone though the very lengthy and expensive patent process so they have no experience other than what they think should and should not be possible.

Let me convey a story about ideas to you. I'm not sure from where it came, but it certainly applies:

When Columbus returned from his trip to the New World the Spanish Royalty had a splendid gala in his honor. At this gala all the nobles from all of Europe attended. They gathered and discussed with Columbus how obvious it was that the world was not flat and how anyone could have done what he did.

After listening to this for a while Columbus silenced the crowd and asked that a bowl of hard-boiled eggs be brought forward. He took the bowl and handed out the eggs to the members and said: "Take your egg and stand it on its end. The first person to do this shall receive a great prize."

For several minutes the party members tried to stand their eggs on end and they all failed. After five minutes passed Columbus again silenced the crowd. He asked if anyone had succeeded in standing their egg on its end and nobody had. Columbus then took one of the hard-boiled eggs and smashed it on the table so one end was flattened and the egg stood up.

The crowd was dumbfounded and someone proclaimed: "Well that was obvious!"

And Columbus replied:

"It was obvious because I showed you how to do it."



This is my view on patents. The best ideas in the world always seem "obvious" after the fact. I'm not interested in turning over my ideas so someone with better funding/marketing can simply steal it and profit. I agree that patents are government force, but it's one of the few times where it can work to protect budding businesses in a productive way.

[smurff]

A mathematician came up with your example equation centuries ago, before the concept of patents existed.

But a contemporary mathematician comes up with an idea that a specific problem needs a solution--btw, an idea that hundreds or thousands of people come up with daily.  The difference is that the mathematician churns the idea in his head, then takes action (a key step most idea generators do not do) applies knowledge (in this case, from a phD in math, gained at much cost of time and money).  The mathematician continues his actions solving zillions of equations, usually with a computer assist, continues applying knowledge, and comes up with a unique solution s/he records (hit the save button or printout) to have physical proof of what was done.

A few hundred years ago, that was the end of it. A couple hundred years ago until maybe thirty years ago, the mathematician shared the solution with everyone (at least other mathematicians) via academic journals. Since thirty or so years ago the concept of intellectual property has grown and changed, so now, if the mathematician wants, s/he can patent that solution, provided they were first in getting to the patent office.

High-frequency trading is just one example. Lots of patents around what they do.  The mathematicians started like you, struggling in middle school to learn quadratic equations developed by an ancient mathematician (whose name may or may not be associated with the equation, like Pythagoras). 

Whether there *should* be such patents is another matter.

[smurff]

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

[Xan]

I think the absurdities outweigh the benefits on software patents.  Normal patents typically cover a particular method of achieving X, but software patents often cover any and all possible ways to achieve X.  Patents last far, far, far too long in the software world.  They are granted without the slightest check for prior art.

The typical advice for people doing software development is to not do a patent search for patents covering what they're doing.  This is because some parts of what they're doing are almost certain to be already covered by some ridiculous patent, and because they'll be liable for treble damages if it can be shown that they "knowingly" violated a patent.

Somewhere (I've been trying to find it but can't) there's a screenshot of a very normal-looking web page, the kind of basic thing any developer might come up with for an online store.  There are literally a dozen or more tags pointing to various elements, with each tag describing a patent.  Patented pulldown lists, patented shopping cart, patented this and that.  It is insane.

[KevinW]

I know I'll never sway craigr, but I'll respond anyway in the spirit of healthy debate. My response to his success story is that one example of a positive outcome doesn't prove that a policy is just in principle or justified in general. There's a "forgotten man" issue where the people that were directly or indirectly harmed by the policy are conveniently omitted from the story. A recent example is the Obama administration's touting of the success of GM and Serious Materials: "these two companies succeeded due to our largess, just don't ask where the money for that came from or what happened to their marginal competitors".

My response to the Columbus story is: how can we really know that he's the only person who thought up smashing the egg, and the only person that ever will? People are smart and resourceful and multiple discovery happens frequently, even with complex and nonobvious topics. E.g. the idea of Voronoi diagrams has been "discovered" independently over and over, by at least Descartes, Voronoi, Dirichlet, and in the meteorology, physics, biology, and forestry research communities. So I don't understand why one person (or corporate person) should be awarded 100% of control over an idea.

Also, it seems like the argument

Also you'll note that most anti-patent people have never gone though the very lengthy and expensive patent process so they have no experience other than what they think should and should not be possible.

can be applied to anyone who is a conscientious objector to anything. You could say "the anti-war people have never led an invasion so they have no experience on this issue" or "the anti-abortion people have never performed an abortion so they have no experience on this issue."

My problem with the notion of intellectual property in general, and software patents specifically, is that they allow other people to impose restrictions on the use of my brain and mind, which as MachineGhost pointed out is very much my own private property, without any consent or compensation. For instance, somewhere in my early childhood I heard the song "Happy Birthday To You." That information is permanently etched into my brain. However, if I want to use that information in the marketplace, say sing it on a street corner or write it into a script, I must first negotiate with Warner Chapel over royalties ( http://en.wikipedia.org/wiki/Happy_Birthday_to_You ). Now, my family never presented me with a EULA for the song, I had no opportunity to opt-out, and was never paid for this diminution of my marketable abilities, yet part of my body is owned by Warner Chapel and he somehow has a legal right to charge me rents on it.

So, IP "owners" can come to control parts of the bodies of the living and unborn, without their consent, by legal maneuvering. How can that be consistent with the spirit of private property and self-ownership?

[Xan]

I look forward to the day when I'll be able to swing sideways on a swing again!  It's coming up soon.

"A method of swing on a swing is disclosed, in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other."

...wut

http://www.google.com/patents/US6368227

[Jake]

you'll note that most anti-patent people have never gone though the very lengthy and expensive patent process so they have no experience other than what they think should and should not be possible.

Stephan Kinsella is a patent attorney, so his anti-IP argument at least comes from years of experience registering and defending patents. Here is the free PDF of his book http://library.mises.org/books/Stephan% ... operty.pdf

[Pointedstick]

The reason why I think it's important to focus on things that seem to supporters like silly edge cases is because the existence of these cases empowers and encourages people who wish to use the system as a weapon against others. It's obvious that there are certain benefits to certain people; that could be said of any government intervention. It's always good to be the beneficiary of the government's power! In the same way that it's an incomplete argument to defend welfare by just saying, "well look, it helps those people!" without looking at the costs of the program or the long-term effects it has on the beneficiaries specifically and civil society in general, you can't defend patents by simply saying that it benefits the patent holders. Of course it does! You need to look beyond that, at the costs to others and the side effects on society at large as well as the direct benefits to the intended beneficiaries.

I could have patented things I invented. I chose not to because I believe that anyone else could have invented them too, and I had no moral right to ask the government to visit violence on any people who saw my invention and wanted to make one for themselves. What kind of libertarian would that make me?

[smurff]

I believe that a large number participating on this forum owes their income to royalties and general exploitation revenues from patents, whether as an employee of a patent owning company, a licensing company, or as a direct owner of patents.

Having noted that, I wonder whether this fact even has anything to do with the current debate.  I can see both sides. Many patents are ridiculous to the point that you wonder whether it's an intentional spoof. There are many things that should not be patented. But I also believe that patents give individuals and businesses the time to earn an income stream from their inventions.

[craigr]

If you want to see a place that doesn't care about intellectual property, look at China. It is a serious problem that will hurt them long-term because companies know anything they send there will be copied (often poorly). So any company with two braincells won't send any seriously important technology there for manufacturing. I don't think Canon for instance sends their best technology for this reason. Neither do many US companies. Not just because of government prohibitions, but because they know their hard work will be stolen and "trade secrets" won't protect you. Only lawyers shutting down import of counterfeit/stolen technology can do it.

Without regard to intellectual property, the market gets flooded with counterfeit products out of China as one example. Then you get blatant theft like Huawei ripping off Cisco firmware for their products and selling back into the US (even had the same typos in the code they shipped as Cisco!). Then you also get outright trademark theft where companies will start selling products under your name in Asia. Etc. Then you allow even less scrupulous people to make dangerous products bearing your name/logo. Or they simply conspire to rip you off through flooding the market with inferior goods to take marketshare and destroy your reputation at the same time.

I run a YouTube channel where I review outdoor gear. One of my favorite knife companies is from Sweden called Fallkniven. They have been having problems recently with fakes coming out of China and being sold on E-bay, etc. This kind of thing really hurts their reputation as the product sucks and it's hard for consumers to tell the difference:

http://www.fallkniven.com/en/counterfeit

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

Be careful what you ask for!

[Pointedstick]

If you want to see a place that doesn't care about intellectual property, look at China. It is a serious problem that will hurt them long-term because companies know anything they send there will be copied (often poorly). So any company with two braincells won't send any seriously important technology there for manufacturing. I don't think Canon for instance sends their best technology for this reason. Neither do many US companies. Not just because of government prohibitions, but because they know their hard work will be stolen and "trade secrets" won't protect you. Only lawyers shutting down import of counterfeit/stolen technology can do it.

Apple seems to be okay with Chinese manufacturing. They even sell their products there.

I run a YouTube channel where I review outdoor gear. One of my favorite knife companies is from Sweden called Fallkniven. They have been having problems recently with fakes coming out of China and being sold on E-bay, etc. This kind of thing really hurts their reputation as the product sucks and it's hard for consumers to tell the difference:

Isn't fraud already illegal? I think I'm missing where patents and copyrights would shut this situation down in a way that enforcing existing fraud laws couldn't.

Moreover, don't we already have patent and copyright laws? Isn't your example in fact showing their failure to prevent the bad situation they were supposed to prevent?

[craigr]

If you want to see a place that doesn't care about intellectual property, look at China. It is a serious problem that will hurt them long-term because companies know anything they send there will be copied (often poorly). So any company with two braincells won't send any seriously important technology there for manufacturing. I don't think Canon for instance sends their best technology for this reason. Neither do many US companies. Not just because of government prohibitions, but because they know their hard work will be stolen and "trade secrets" won't protect you. Only lawyers shutting down import of counterfeit/stolen technology can do it.

1

Apple seems to be okay with Chinese manufacturing. They even sell their products there.

A lot of companies manufacture there obviously. But a lot also have had serious problems with property theft. Not to mention good old fashioned corruption at many levels.

I run a YouTube channel where I review outdoor gear. One of my favorite knife companies is from Sweden called Fallkniven. They have been having problems recently with fakes coming out of China and being sold on E-bay, etc. This kind of thing really hurts their reputation as the product sucks and it's hard for consumers to tell the difference:

Isn't fraud already illegal? I think I'm missing where patents and copyrights would shut this situation down in a way that enforcing existing fraud laws couldn't.

But didn't everyone just say that patents, trademarks and intellectual property should be free? Who cares if Fallkniven spent years developing their F1 Survival Knife with the Swedish Air Force to perfect the design? Who cares that they carefully selected the steels to be used after rigorous testing and expense? Who cares if they worked out the production technique to efficiently manufacture it reliably? They don't own all that work, do they? It should be perfectly OK for someone to violate their design trademark, their name, their proprietary processes, etc. because patents, copyright and trademarks are bad, yes? I mean why couldn't someone just take their design and work and just start cranking out their own knife even if it didn't have the Fallkniven name on it but just looked identical to their knife?

More importantly, why would Fallkniven (or anyone) ever work to make another product when they knew the minute it was out that everyone could instantly steal the design and sell it against them? Isn't it the designer's prerogative whether they want to give away their idea or try to profit from their work?

I always thought the Libertarian arguments against patents were not well meshed to other beliefs in the 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.