The patent system: End it, don't mend it | Hacker News Reader

The patent system: End it, don't mend it

csmonitor.com

52 pointschaostheory35 comments

This article takes much broader aim than merely at the patent system (which I leave for others to argue) - it takes aim at the entire system of affording special protections for intellectual property generally. The authors nowhere attempt any form of coherent articulation of this broader position and merely take swipes at the protections they oppose, but I think this broader position either undermines their credibility or indicates a serious sloppiness on their part.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

==Addenum==

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

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

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

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

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

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

Mises' stance is especially notable in contrast to the insanity of Galambosianism

Ludwig von Mises does not have any opinion on the matter of Galambosianism(Global warming? Obamism? What???) since he died in 1973.

Oh, they met alright: http://en.wikipedia.org/wiki/Andrew_Joseph_Galambos

I was not aware that Ludwig von Mises have a position on intellectual property or there is a person called Andrew Joeph Galambos.

Something new to learn today I guess. Even so, I am just starting to read Austrian economic literature. So excuse my ignorance.

We can own property, we can possess it, we can alienate (sell or transfer) it, we can bequeath it, we can improve or modify it, and on and on.

Why should this bundle of rights be any different for intangible property rights (so-called intellectual property)?

Because "intangible" property doesn't exist, except as a legal fiction. We can't possess it. Alternately, if you consider knowledge to be possession, then possessing isn't exclusive.

Not to get disputatious, but the tangible/intangible distinction simply relates to whether one can physically touch something and (at least in my mind) has nothing to do with whether something should or should not be a protectible form of property or whether it does or doesn't have value making it worthy of protection.

Society, through its laws, must make judgments about what "bundle of rights" it wants to associate with any given form of property and whether recognizing and protecting such bundles of rights will promote individual happiness and social betterment, including economic prosperity. I think the experience we have all seen with IP rights falls decidedly on the side of promoting social betterment as well as individual happiness. The point might be argued to the contrary, but I think the contrary argument is a far weaker case and, in reality, virtually unsustainable (though one can of course argue with more force about limiting individual IP components such as patents).

has nothing to do with whether something should or should not be a protectible form of property or whether it does or doesn't have value making it worthy of protection

This is where we disagree. I believe quite firmly that the fundamental nature of something, especially its existence outside of our minds, has very much to do with how we treat it as a society.

jwz has a pretty concise essay on this topic:

http://www.jwz.org/doc/iwtbf.html

I also don't agree with bundling all types of intellectual property in the same boat, but there is a fundamental difference: physical property is a rival, excludable good while intellectual property is a non-rival, non-excludable good.

The other primary difference, and the real problem with patents, is that intellectual property laws can give you de facto rights over the product of someone else's labor; if I independently invent something that someone else has already invented, they own what I just made and I have no right to it. That's what gets most software developers in trouble.

The problem is that it's difficult to distinguish between independent invention and theft, because the goods are non-rival. If I accuse someone of stealing my car, it's pretty easy to verify that A) I no longer have the car, B) the other person does, and C) it has the VIN number of my car. If I have code that does X and so does someone else, how do you tell if it was stolen or independently arrived at, or kind-of-stolen in the sense that you arrived at it independently but only after you heard that I had done something kind of like X? As it turns out, patent law doesn't bother to try: it just says that if it does X you've stolen it, end of story.

That's why patents are supposed to be non-obvious: the chance of independently coming to the same solution should be low enough that, in the case of some kind of duplication, you should be 99.9% sure that it's due to theft. As soon as that breaks down (as it does with software patents), you have all kinds of problems that don't have any analog in physical property and that the law is totally unable to cope with.

Painting all IP with the same brush and saying it should be abolished is surely ridiculous, but equating IP with physical property is also a fallacy. They're fundamentally different, even if legally they can be treated similarly in many cases, and they need to be understood, treated, analyzed, and justified differently.

Your points are good ones, and I agree that tangible and intangible property are different and should be treated differently under the law.

The element of commonality that I was stressing had to do with the idea that each form of property was subject to a bundle of rights - granted, to a different bundle in each case but nonetheless to some grouping of special rights that are divisible and that can be used, transferred, etc. in various ways to advance legitimate commercial purposes. Thus, at that level, the law approaches both forms of property in a similar way and (in my view) that is the key level upon which to focus in analyzing the benefits/detriments resulting from IP protection.

Thus, anyone can have knowledge of information but if one's information is not known generally to the world and gives one's company a significant competitive advantage, then it should be capable of having the force of law behind it to enable those who first derived to keep it confidential and to use it for competitive advantage. In this sense, based on a social policy judgment (that protecting proprietary information of this type will facilitate the growth of enterprise and the betterment of society), such information is entitled to special legal protection even though it means that others are thereby excluded from using it for certain purposes.

Again, I don't get into the patent issue and do acknowledge that the questions there are dicier and more subject to debate.

I think you're saying, then, that starting from the question of "are there rights to intellectual property" is the wrong way to go about things; trying to make an argument that "you can't have rights to intellectual property because of X," as many people try to do, is rather myopic since it's demonstrably clear that you can indeed assign rights to IP, since the law does in fact do that, and is able to do so in a way that has a lot in common with other sorts of property rights.

I definitely agree, and that implies that the right question to ask is not "should there be IP rights?" but rather "what rights should be associated with IP?" How you answer those questions depends on your perspective and probably the origin of your country's IP laws (are they explicitly pragmatic, as in the US, or rooted in a theory of natural/inherent rights, as in other countries?), but will undoubtedly involve questions about pragmatism (what's the cost/benefit to society of having a particular type of right) and about fairness or ethics in general.

Starting from that perspective and then arguing why particular rights are either unethical or harmful to society makes for a much more compelling argument than just railing against all IP, as (unfortunately) some activists or commentators tend to do.

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

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

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

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

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

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

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

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

I'd add two more problems:

3) Too expensive. 4) Takes too long.

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

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

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

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

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

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

Of course, I could be completely wrong.

The problem is that despite the patent system, "trade secrets" remain and increasingly so in SaaS. Patents are mainly used as a weapon to impede the progress of competitors.

Abolish software patents, now!

What is wrong with trade secrets anyway? It's not like someone who discovered something is obligated to reveal it to the world. If he chooses to do so out of his good will, fine. But if trade secrets remain despite patent system, that can only mean patent system is not fully enforceable yet.

Trade secrets remain today, mostly over the things that aren't (or aren't likely) patentable. So even perfectly enforceable patents would make trade secrets go away.

That's what your parent post is saying. Trade secrets are still prevalent, more successful, and cheaper.

Determining whether something is patentable or not is currently a process that quite often takes well more than a year. I think shorter terms are the way to go, but they need to be fairly long to justify the cost and hassle of acquiring them. Something in the 5-10 year range is more plausible.

Also, for an article presumably about patents, the author casually conflates copyright a bit too much for my tastes - which is a beast unto itself.

Copyright's primary problems are: insufficiently protected fair use rights, abuse of 'works for hire' and obscene term lengths. But the citizen-facing problems outlined in the article are the result of monopolies that weren't government-granted (MPAA/RIAA) and the DMCA. (Specifically: causing the loss of fair use to make personal copies and publish for non-commercial educational purposes)

The authors behind the article wrote a book Against Intellectual Monopoly that argues for the abolishment of copyright and patents.

http://www.dklevine.com/general/intellectual/againstfinal.ht...

Heck, they already found evidence that patent systems did not really disclose secrets and actually distort innovation toward inventions whom secrets wouldn't be secret for long.

However, don't take my memory-say and read the book yourself.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Louisiana Purchase turned out all right though.

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

http://bobsutton.typepad.com/my_weblog/2009/02/5127-failed-p...

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

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

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

Save your 3 minutes.

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