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Patent Lawyers Who Don’t Toe the Line Should Be Punished!

Mises blog and Against Monopoly blog post. Archived comments Mises post and from AM post below. Comments from Quinn’s article, Reality Check: Anti-Patent Patent Musings Simply Bizarre, reprinted below too. See related post: Patents: Horizontal vs Vertical Innovation

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In his post Reality Check: Anti-Patent Patent Musings Simply Bizarre, patent attorney Gene Quinn is baffled that any patent attorney would openly oppose the patent system–or be hired by anyone. He writes, in part:

But what has me really wondering is how and why a patent attorney who is openly hostile to the patent system can get any work in the industry?  Why would any inventor or company want an anti-patent patent attorney like Stephan Kinsella, who seems to be the genesis of this story, and so many other anti-patent patent stories.

Why would anyone hire me? I’ve prosecuted hundreds of patents. I’ve taught computer law as an adjunct law professor, I’ve published a great deal of legal scholarship including IP law, such as the Oxford University Press legal treatise Trademark Practice and Forms. I believe that given the patent system, tech companies have no choice but to arm themselves with patents, if only for defensive purposes. If someone went after one of my clients for patent infringement, I’d pull out all the stops to defend them from this state-backed threat. Maybe some clients like a patent attorney looking out for their interests.

Apparently Quinn thinks ideological conformity is a requirement for job competence. If you have the wrong politics, you’re out. (I just hope I don’t have the wrong religion, gender, or race.) But think about it: would you hire only oncologists who were pro-cancer? Is it outlandish to think of hiring a tax attorney to defend you from the IRS who thinks the income tax is immoral and should be abolished? Is it required of a patent attorney to be in favor of the patent system? Yes, we patent attorneys learn the patent law and how to navigate the system. Does that mean we receive special education–or is it propaganda–as to the justifiability of IP? If so, where is it? Sure, we are taught in law school that the stated purpose of the patent system is to encourage innovation, and public disclosure of inventions. Okay. So what? How does knowing the state’s line for a given law prove that it is justified?

The truth is most patent attorneys are in favor of patent law. Why is this? They have no special knowledge about its normative validity. Rather, they are self-interested, and have been subjected to positivist, statist, empiricist propaganda in law school. Quinn tries to turn this defect into an advantage by hogging to the biased patent profession the right to pronounce on these matters–and then ejecting from the profession anyone who bucks the union line. The patent bar of course lobbies for the system that butters their bread. They claim special knowledge to pronounce that the system is “necessary” for innovation, even though they have no proof of this. (See below.) They marginalize non-lawyers as not having enough expertise to weigh in. And anyone who does have expertise is ostracized if they point out that the emperor is wearing no clothes. They remind of leftists who will not tolerate an African American who opposes affirmative action–they impose their supposed “benefit” on him by force, which is bad enough, and then use this imposed “benefit” to silence his criticisms of it. Terrible. (See An Anti-Patent Patent Attorney? Oh my Gawd!.)

But though patent practitioners have an interest in promoting the system that supports them–just as FDA bureaucrats support the FDA, just as government school teachers tend to be in favor of government schooling, just as policemen and state judges are in favor of the state’s monopoly over justice–not all are won over by the propanda. Some just chug along, earning a living, while ignoring the cheerleading about how great our patent system is. In fact, I am not the only patent attorney who opposes the patent system. My friend Tony Diehl, a registered patent attorney, is opposed to it, and knows what a state boondoggle it is. As I noted in The Morality of Acquiring and Enforcing Patents, law professor Michael Davis, also a registered patent attorney, opposes the patent system (for leftist reasons, I believe, unlike my own pro-property, libertarian reasons–but still); and Daniel Ravicher, Executive Director of the Public Patent Foundation (PUBPAT) and Legal Director of Software Freedom Law Center, and also a registered patent attorney, appears to be opposed to patents or at the very least has serious reservations. And no doubt many patent attorneys know the standard justifications given for the system are nonsense, but they don’t speak out because there is nothing to be gained from this except denunciations from cheerleaders like Quinn who will try to harm their livelihoods by telling clients not to hire them. So many are anonymous. As I wrote in Miracle–An Honest Patent Attorney!, I received at one point an email from a respected patent attorney, a senior partner in the patent department of a major national law firm. He/she insisted on anonymity–gee, I wonder why? He/she is not a libertarian. These are just his/her honest observations based on his/her long experience in the field:

Stephan, Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hosteny] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA. I wish I had the “answer”. I don’t. But going to real opposition proceedings, special patent courts with trained patent judges, “loser pays attorney fees” trials, retired engineers/scientists or other experienced engineers/scientists being used to examine applications in their fields of expertise by telecommuting from their homes or local offices throughout the Country, litigating patent attorneys providing regular lectures to the PTO examiners on problems encountered in patent infringement cases due to ineffective or careless examination of patent applications, and the appointment of actually qualified patent judges to the CAFC, may be steps in the right direction.

Now this is an honest patent attorney. As I told him/her,

What is worse, to me, is when patent attorneys pretend to know, but of course, do not–and they know they do not, and they do not care. It is just dishonest. I don’t mind a patent attorney being in favor of the system for the honest reason that it benefits him and his clients. Just like retired people benefit from social security even if it’s an inefficient or unethical system. Or if patent attorneys just did their job and shut up about the “benefit” of the system. I will say that my point (not really in the letter, but expressed elsewhere — e.g., There’s No Such Thing As A Free Patent) is not only that is the system now probably “not worth it,” but that due to the subjective nature of value, it would never be possible to demonstrate that it is “worth it”. But that is a methodological point beyond most patent attorneys, who are utterly imbued with scientism and positivism.

And I have other patent attorney friends who skeptical as well. I’ve had dozens of conversations with patent attorneys, many of whom are mouthing the standard pro-patent line. I simply ask them, how do you know we need a patent system? How do you know the benefits accruing from it are greater than the costs of the system? What are these benefits, in dollar terms, what are the costs, and what is the net? I am always met with blank stares.

But let’s return now to Quinn’s screed:

My intention is not to get into a back and forth joust with those who believe the patent system does not spur innovation.  In my experience there is simply no talking to people who hold those beliefs.  They will hold those beliefs forever despite any and all evidence to the contrary, despite the laws of economics, the sensibilities and demands of investors and with total disregard for history itself.

It is in fact quite the reverse. Patent lawyers repeat over and over the state’s propaganda that IP is necessary for innovation. They believe that we are made overall better off by the patent system. This means that the value of the extra innovation spurred by having a patent system far outweighs the undeniable costs of the system. Okay–then what are these numbers? What is the net benefit of the patent system? Is it a billion dollars? A trillion? How does Quinn know it’s not negative? If he knows it’s a positive number, what is his evidence for this? I don’t know the costs. I don’t know the value of the benefits. (My educated guess is that the net cost is over $41 billion per year. But who knows?) I do know that every study that comes out concludes otherwise (see my post Yet Another Study Finds Patents Do Not Encourage Innovation). They are the ones in favor of the granting of state monopolies. The burden is on them, not on opponents. So where is their evidence?

They don’t pretend to know. They don’t take this seriously. They don’t have any idea of the costs, or the benefits, or the net. They don’t care about the costs–costs (patent lawyers’ salaries, say) are benefits to them, you see. They most they will do is trot out some off-the-cuff, non-serious remark that western countries are more prosperous and have patent systems; or we have had economic growth in America, coinciding with the patent system’s implementation. Wow. How rigorous. Never heard of the idea that correlation is not causation? Maybe the pro-property industrialized countries tend to tax and war and regulate and impose patent systems because they can afford it. (See Interactive Graphic Pretends to Illustrate How U.S. Patent System Has Driven American Economy; Prove that would have been invented without patents!.)

Back to Quinn:

Yet, I have to confess at being extremely interested in knowing how a patent attorney could come to such beliefs.  Kinsella is used as a propaganda tool by anti-patent folks everyone who point out “even a patent attorney knows patents stifle innovation.”  How is it possible that a patent attorney could believe that innovation would occur faster without patents?

The truth is we anti-IP libertarians have sincere, serious, good reasons to believe patent rights are false rights that do harm.  See, e.g., my The Libertarian Case Against Intellectual Property: A Concise Guide; and other libertarian IP publications. If anything, my experience in the patent field shows me how much waste there is. It shows me what a threat to free enterprise patents are. It shows me that larger companies are just using this latest state monopoly grant as a tool to bludgeon smaller companies.

Quinn then disingenuously argues that if you are against patents, you are against technology:

The truth is that every civilization that dominated had advanced technology and innovation when compared with competing civilizations.  Whether there were patents or not, advanced technology and innovation is something to be aspired to.  Rather than choosing to tax the people and require free labor by unfortunate classes of people our nation has evolved to tap into one of the most fundamental and powerful motivation forces — greed!  Because of greed individuals, investors and companies will devote substantial amounts of time, energy and funding to come up with whatever is next, whatever is better and whatever will make them money.  If we don’t want a patent system and we still want the jobs innovation creates, the lifestyle advances that innovation creates and the life-saving drugs and treatments that innovation creates we need to dig deep into the greed gene and exploit it.

Yes, “greedy,” self-interested behavior is fine and good. I’m in favor. I’m a libertarian, after all. The problem with patents is not that they are too capitalistic: it’s that they are state privileges that intrude on the free market. I oppose patents because they undercut private property rights, not because they are private property rights.

And of course, technology and innovation is good. The mistake here is thinking there is market failure: that without the state’s interventions, there won’t be enough innovation. How anyone can honestly think the state can intervene and make things better is beyond me.

… I find it flat out bizarre that anyone could be of the opinion that patents stifle innovation.  The truth is patents stifle innovation by the lazy, who would have never innovated anyway.  Innovating is not for the faint of heart, and certainly not for the lazy, so why do we at all care what the anti-patent zealots think would happen in an unrealistic fantasy world where everyone simply works hard for the betterment of mankind and to assist others without regard to their own well-being or financial interest.

If Quinn does not understand why people can believe patents stifle innovation, he can do a bit of reading. He can start with the list of study after study concluding otherwise, collected in Yet Another Study Finds Patents Do Not Encourage Innovation; then he can read my The Libertarian Case Against Intellectual Property: A Concise Guide; and for a detailed examination of the utilitarian aspects of patents and why they discourage innovation, he can see Boldrin and Levine’s magisterial Against Intellectual Monopoly (free version online).

As for lazy–was RIM lazy when it heroically innovated and provided the magnificent Blackberry to tens of millions of customers, only to have over $600M extorted from it by a patent thug? Is the ever-innovating young company Facebook “lazy”–if they don’t pony us hundreds of millions of hush money to the patent predator nipping at it? Or is it rather than larger companies can rest on their laurels, protected from competition from smaller, hungrier startups, because their arsenal of patents allows them to achieve detente by thread of MAD with other, large, patent-hoarding companies, but to threaten startups who don’t usually have strong patent portfolios?

Update: I and others posted several good comments to the thread Reality Check: Anti-Patent Patent Musings Simply Bizarre. Quinn has posted a followup: Responding to Critics: My View on Patents & Innovation. His post makes it clear that it’s not worth responding to him any more.

Update 2: Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation? (in the comments thread there Gene Quinn comes off as he typically does, as a know-nothing, blustering buffoon)

[Mises blog cross-post; AgainstMonopoly cross-post]

Against Monopoly comments:

Comments

Answering the question as to whether patents are socially beneficial is a trivially easy task compared to answering the question as to why apparently intelligent people are devout in their belief that patents are beneficial and will do anything to demonstrate their unwavering loyalty to that belief.It is like geo vs heliocentricity. It is more a matter of religion than science.

We’re supposed to have already learnt that monopolies are expensive luxuries that benefit the few at the expense of the many, and to have vowed never to allow them again. The problem is, the people forget, and those in power remember.

No doubt before the ink has dried on the future legislation that abolishes copyright and patent, new monopolies will be created and argued as necessary evils.

rePost-In a world run by corporations that are “too big to fail” shouldn’t we be TRYING to to limit their monopolies and incentivize competition? The part that’s so misunderstood is that competition breads innovation not monopolies. In one breath the political voice of all parties condemn monopolies and push for stronger IP.. I don’t think they make the connection, or realize the harm their doing to innovation as a whole.. At least I hope not.

Consolidation is the single most destructive force to innovation there ever was. The corporate Oligarchy disdains innovation and uses IP to destroy and assimilate competition before they can threaten the status-quo. The truth is that it’s easy to lobby for stronger IP, because what never was is unquantifiable. They simply take innovation, which is a force that cant be stopped by paper tiger monopolies. Then credit patents as the culprit for all of humanities modern innovations.

You-Tube is an excellent example, I heard so many people decry you tube as “pure theft” (to quote Joe Bidden) in 2002 wondering how they can even exist legally. Fast forward.. now imagine life without it. Again, if it hadn’t been consolidated under Google it would have gone the way of countless other competitors/innovators ..to the bit bucket. THATS what IP REALLY does: it consolidates innovation into the hands of existing monopolies, who **USUALLY** just kill it.

I would like to know what % of IP Patents are in the portfolio of companies like MS as opposed to companies that are still small and scrappy (and practicing those patents). more over, I would love to see how the patents have moved over the years. As in who originally filed them and the path that they took to where they are today. That would show I’m sure that once a patent is proven viable it’s acquired.

Quinn responds by saying “quit reading studies”.Laughable.

Gene Quinn seems to have a lot more energy than scholarly acumen. You are right that he’s not worth responding to, or even reading really.
The masses listen to people like him. Their propaganda is unstoppable if they have no audible opposition.
Tow the line not toe the line

Moreover “the single most destructive force to innovation is patents”.We’d like to unite with you to help make this world a better place.

Thanks, Maverick

Mises blog archived comments:

Jeffrey Tucker September 29, 2009 at 3:16 pm

Fantastic post, Stephan. People need time to think this through but generally people come around after reading you and B&L. At the end of this battle, it could be that the self-interested patent lawyers will be the only real advocates of the patent system. This is a good result because it crystallizes the actual basis of the patent privilege.

jc butte September 29, 2009 at 4:18 pm

I haven’t come around, Jeff. I continue to see this debate as pointless and ego-driven. It is not for Kinsella, or anyone else, to define private property but rather people and the institutions they form. If we ever have the constructs of a free society, I suspect IP will alive and healthy, whether “real” libertarians, rogue IP attorneys and theorists like it or not.

DixieFlatline September 29, 2009 at 6:22 pm

jc,

What does this,

It is not for Kinsella, or anyone else, to define private property but rather people and the institutions they form.

mean?

And this,

If we ever have the constructs of a free society, I suspect IP will alive and healthy, whether “real” libertarians, rogue IP attorneys and theorists like it or not.

seems quite confused. In a free society, there won’t be a monopoly patent system.

jc butte September 29, 2009 at 6:42 pm

Dixie, how can you presume to know what institutions would exist in a free society? I anticipate that many of useful regulatory functions of the state would be continued by private firms. While it is true that a “monopoly” IP system could not exist without the state, a near monoply one could, and I would argue would exist by agreement of major trade and industry associations. Anyone operating outside such a network would find their market very limited and in the case of industrial goods, essentially non-existent. That should provide answer to the two questions you pose.

If the folks who create innovation and the folks who finance such endeavors desire ownership of the ideas, such protection will exist. That’s my opinion.

BioTube September 29, 2009 at 7:35 pm

butte, trusts tend to break down because the companies constantly salivate at the money they could make by reneging on the agreement.

DixieFlatline September 29, 2009 at 10:40 pm

jc,

Dixie, how can you presume to know what institutions would exist in a free society?

I feel pretty confident, when I say that monopoly IP will not exist in a free society, because that monopoly can only exist by force, thus, making it not a free market.

But “wait” you say, “what if everyone agrees we need IP, isn’t that a voluntary monopoly?”

And you would be right. Except, I won’t agree. So there goes your free market monopoly.

While it is true that a “monopoly” IP system could not exist without the state, a near monoply one could, and I would argue would exist by agreement of major trade and industry associations.

JC, how can you presume to know what institutions would exist in a free society?

See what I did there?

newson September 29, 2009 at 10:45 pm

randians just aren’t open to proselytizing. rogue ip attorneys should turn their direct their efforts at winning over “real” people.

newson September 29, 2009 at 10:55 pm

kinsella used as a “propaganda tool by anti-patents folks”? yeah, that sounds in character!

Bala September 29, 2009 at 11:05 pm

As a person who entered this site with a clearly stated opposition to Stephan’s position on IP, I should say that he is very much right in this article.

As Stephan very rightly pointed out, a firm under attack by another firm for patent law violations which are clearly identifiable under existing patent law needs someone who has a perspective of what is wrong with the law itself and present logical arguments that defeat the case.

That clearly makes a case for hiring a lawyer like Stephan who sees existing law differently and is ready to show how implementation of the law as it stands counts as a violation of other fundamental liberties. If someone fails to see it, is clearly a case of missing reality or missing the logic.

People like Stephan (arguing as they do against IP) do a valuable service (though in their own selfish interest) of helping us refine law and make it conform to the larger ideal of the preservation of Liberty.

p.s. I have not read the article, but the title alone prompted this thought. If this is what the article says, Stephan is absolutely right.

P.M.Lawrence September 29, 2009 at 11:46 pm

Stephan Kinsella wrote “The truth is most patent attorneys are in favor of patent law. Why is this? They have no special knowledge about its normative validity. Rather, they are self-interested, and have been subjected to positivist, statist, empiricist propaganda in law school.”

Actually, the most likely psychological mechanism is that people internalise these attitudes to stay right with themselves, a rationalising process so that they do not feel in the wrong. It happens in quite a number of areas.

Gene Quinn was quoted as claiming “The truth is that every civilization that dominated had advanced technology and innovation when compared with competing civilizations”.

That is simply false. The Greeks had better technology etc. than the Romans, Byzantium than Islam, France than Britain during the Industrial Revolution, and Britain than the USA a bit later (e.g. the USA couldn’t manufacture the Rolls Royce Merlin engine during the war) – right up until the last phases, when the winners also adopted these offsetting advantages of the losers. Quite simply, the winners used other resources to win.

What is really weird is Stephan Kinsella’s complete failure to appreciate that companies are also artefacts of the same sort as patents, instead treating them as individuals in their own right suffering or gaining from the distortions of patents. I suspect that this is an issue on which Stephan Kinsella has himself fallen prey to just such a rationalising process as the pro-patent types…

Bala September 30, 2009 at 12:21 am

SK,

I am posting this because I know you read the comments on your blog and even respond to them. I also know we have had a number of spats before, but I have an observation you might be interested in discussing.

You said

” I oppose patents because they undercut private property rights, not because they are private property rights. ”

Firstly, I think that if at all there is a real basis for opposing IP, it is this. The rest of the arguments (about societal benefit, etc.) are collectivist garbage that you yourself shouldn’t be using because that’s where anti-IP positions lose the battle. As you said, given that value is subjective, you can never prove your case just as much as your opposition cannot. I call it collectivist garbage because it gives credence to the position that “benefit to society” is a basis for deciding on the validity of a legal position. By seeking moral sanction in “society”, it becomes collectivist in nature. Once YOU do that, you are operating in the collectivist’s realm and there, you have no chance of winning.

That said, however, I get the feeling that a lot of people miss you on this point. I also think that this is because this point lacks a moral and epistemological basis. I have this observation about the entire Libertarian conception of Rights where you start by saying that all rights are property rights. This is absolutely right when seen through the eyes of a person who knows that the proof of the pudding is in the eating and that the validity of a “right” is seen in its implementation. There is nothing in it to disagree with for a person with my convictions, but there are a lot of other people with a different set of convictions (heaven knows how they convinced themselves about the validity of these convictions without evading reality or fooling themselves) who will question its moral and epistemological foundations.

This is not to say that the Libertarian concept of Rights is not morally or epistemologically sound. It is. The problem is that you and other Libertarians are not addressing these issues from a fundamental perspective. Hence, there are a lot of people who do not buy in.

If you want to discuss this on this forum, I am ready to spend time talking. Trust me. I am with you on this one.

Gil September 30, 2009 at 1:05 am

“Wow. How rigorous. Never heard of the idea that correlation is not causation? ”

Wow! Gee S.Kinsella, random correlation doesn’t mean correlation, but ongoing correlation makes a good case for causation. If you love the ‘correlaton doesn equal causation’ argument then you could also become a tobacco attorney and say there’s no proof that cigarettes cause anything because the statistics are indeed just mathematical correlations hence no causation.

Seattle September 30, 2009 at 1:28 am

Gil:

“Correlation is not Causation” always messes people up. A better statement is “Correlation is a necessary but not sufficient indicator of causation.”

When A and B or correlated, that means one of three things is going on:

1. A causes B.

2. B causes A.

3. There is a third factor (C) which causes both A and B.

Further analysis is needed to determine which one of the three cases is going on.

newson September 30, 2009 at 1:44 am

gil, how can there ever be “ongoing correlation”? it always refers to a past relationship.

terrymac September 30, 2009 at 1:56 am

IP law is destructive of innovation. I have been developing software and working with computer software for nearly 30 years. Every year, I read several articles about software patents and think “Got to be kidding! That was old practice when I got started decades ago!” Meanwhile, open source software provides thousands of useful software tools which are freely copied, tweaked, and improved upon. In the hardware field, I recently encountered articles about shanzhai operations which began as copycats of existing designs, but often add innovative new features. Their ethic appears to be open source also – they share bills of material and design documents. Their business model appears to be innovative and quite successful.

Artisan September 30, 2009 at 4:36 am

Funny. Even though I disagree completely about the SK justification for copyright abolition I tend to agree with the patent abolitionists – for slightly different reasons perhaps.

This being said, of course I would hire SK if I was accused of copyright infringement in the US because I think it might be valuable when a lawyer takes your defense while he is not completely convinced of your innocence. It makes you look further inside yourself for giving him good defense material.

Besides that, he seems to like fighting so much, and I wonder if he ever sleeps.

Shay September 30, 2009 at 5:49 am

Bala, if Stephan Kinsella simply argued “Patents infringe on property rights, therefore they shouldn’t exist. It’s irrelevant whether they benefit society.” I think he’d make a less-powerful case against them. I see him as examining them on idealogical and practical grounds, to cater to readers who favor either type of argument. People who believe they are beneficial, perhaps due to reading claims that they are, will benefit from having this point refuted. A refutation made in the opponent’s own terms carries more weight than one reframed in your own terms.

Bala September 30, 2009 at 8:19 am

Shay,

My argument centres on brevity. So, I shall try to be brief in my response.

Firstly, no one ever successfully pleaded their way to Liberty. Your “practical” arguments come across as little more than that.

Secondly, “practical” arguments may serve the purpose of convincing someone already convinced on moral grounds that this is one more case where the moral is the practical. For someone who sees IP as genuine property rights (like most Objectivists and, maybe, even many Libertarians), these “practical” arguments will only appear like self-serving arguments aimed at justifying theft on utilitarian grounds.

Thirdly, to the vast majority, focused arguments concentrating on the key issues – the ones that they understand most easily and that matter to them the most – will work better. Slogans and catch-phrases work much better than well-reasoned arguments and empirical data that confirms them.

Fourthly, why give your opponent an opportunity to divert attention by focusing on what is not the core issue anyway? It would be a criminal waste of precious time and energy.

In my opinion, there is only 1 issue which is provable on grounds of logic – that protection of one individual’s “rights” to his IP is a violation of another individual’s Liberty. We (that means each one of us as individuals) need to make a choice of whether or not to acknowledge IP as genuine property because it always comes at the expense of Liberty. (It is here that I see moral and epistemological weaknesses in the Libertarian conception of Rights.)

Everything else – that its implementation will make us dependent on the State which is inherently evil or that its net societal benefits have not been proven – is a matter of conjecture where no one can win an argument. So, why are you choosing these?

Michael A. Clem September 30, 2009 at 9:39 am

You know, it seems natural and intuitive that someone should be paid for the effort that goes into creating a song, a novel, a computer program, or some other implementation of an idea. I think this, too. People should be paid, if they wish, for as much as the market will bear for the implementation of their ideas. The problem, though, is that people make the mistake of thinking that the implementation of an idea (or sometimes even the idea itself) somehow constitutes “property”, and trying to enforce that in courts of law, instead of letting the market pay them as their implementations are valued.
How will people get paid? How much are such implementations worth to other people? I don’t know–that’s what the market is all about. It’s a discovery process. But getting rid of the concept of IP doesn’t mean that all implementations of ideas will be free for the taking, or even that it will hamper innovation and development. People will be paid as other people see fit to pay them, just like any other good or service, and innovation and development will be “encouraged” to the degree that people value such things.
The fact that information is so easily copied, especially in the digital age, makes it ever more important that we properly define and understand “property” and “theft”–but these are not insurmountable problems.

Dale B. Halling September 30, 2009 at 9:54 am

We know that in all areas of economics where it has been tested private property rights encourage economic activity. We also know that when the government establishes incentives, it always results in more of the incentivized activity. We also know that countries with the strongest patent laws have the most innovation and the greatest technology diffusion and vice versa those countries with weak or non-existent patent laws have little or no innovation and little technology innovation. Despite this Mr. Kinsella and the anti-patent crowd ask us to believe that patents do not follow the normal rules of economics and logic. As Thomas Paine pointed out in his book The Age of Reason, extraordinary claims require extraordinary evidence. Mr. Kinsella and the anti-patent crowd have provided no evidence that patents harm innovation.

Bala September 30, 2009 at 10:05 am

Shay,

For proof of my argument against using the “practical” argument against IP, please check Dale B Halling’s post. That should show you that no matter what data you show, it will either be discredited or claimed to be insufficient. Do you still think it is not a waste of time?

Bala September 30, 2009 at 10:17 am

Dale B Halling,

While there is no disputing that protecting property rights encourages economic activity, what does one do when protection of one “right” automatically means infringement of another “right”? Something must be wrong, right?

Just to take the point further, what should we do when protection of one person’s intellectual “property” requires violation of another person’s Liberty? Which is more fundamental – the Right to Intellectual Property or the Right to Liberty?

Or are you saying that the Right to Intellectual Property is so sacrosanct that violating the Right to Liberty is acceptable in order to protect it?

Just to put it in more concrete terms, an “idea” is a particular way of organising concepts. Are you saying that because you thought of organising concepts in a particular way first, I should either not think that way or pay you to think that way? And if I think it is a good way to think to achieve a certain goal, is it not a violation of my liberty to prevent me from acting as per the dictates of my mind or to force me to pay you before doing so? Is this not a gross violation of my personal liberties?

I am just trying to highlight the trade-off involved in accepting IP as a legitimate right. The truth is that we have a choice to make – IP Rights of your Liberty. You cannot have both. Which way are you going to swing?

Shay September 30, 2009 at 10:44 am

Michael A. Clem, thank you for your excellent post above about being paid for one’s work.

Bala, your post has made me think more about the issue of arguing against IP laws. I know that personally I like simple arguments that focus on the essential, and don’t waste time with small things. Yet when I read Stephan Kinsella’s posts, it’s clear to me when he’s addressing the essential, and when he’s merely refuting false claims made by others. I think that these non-essential things are useful starting points for someone who hasn’t thought much about the issue before. Still, I do lean towards your position, and prefer to bring it back to the essentials. For IP, I might address the “but it helps innovation” argument by pointing out that it still doesn’t justify infringement on others’ liberty, with a possible aside that there is no clear evidence that it even helps innovation in the first place. Sorry for the rambling paragraph, I just wanted to note that I appreciated your response.

Stephan Kinsella September 30, 2009 at 10:50 am

Dale Halling writes, “As Thomas Paine pointed out in his book The Age of Reason, extraordinary claims require extraordinary evidence. Mr. Kinsella and the anti-patent crowd have provided no evidence that patents harm innovation.”

Halling doesn’t realize that the extraordinary claim is that monopoly privileges granted by the criminal state could actually enhance overall societal welfare. The burden is on him; he has not met it; he cannot met it; all the studies are against him. See the comments by Masnick and others on Quinn’s thread.

Breadcrumbs: “This master list could then be used as a base point of conversation, rather than the often times cross posting that satisfies neither camp.”

I assembled a pretty large collection of them here: Yet Another Study Finds Patents Do Not Encourage Innovation http://blog.mises.org/archives/010217.asp
I am aware of NO study that unambiguously concludes the patent system is “worth it” in utilitarian terms.

Keep in mind the burden of proof is on the proponents of IP. IP is an artificial monopoly granted by the state–as Jefferson recognized–and is justified (according to the utilitarian logic of its proponents) ONLY if it DOES “increase the size of the pie.” Does it?

Let me not again, however, that not everyone agrees with the utilitarian argument in the first place. Utilitarianism is incoherent, as an understanding of Austrian economics shows. Even if it was not economically incoherent, it is morally problematic: it is wrong to harm A, just because this benefits B and C. And even if it were not morally problematic or economically incoherent, the fact remains that IP proponents have not carried their burden of proof.

I also note this interesting fact: some IP advocates sloppily trot out the off-the-cuff argument “well patents are good because look at the economic progress in America over the last 200 years.” What is curious about this is their “evidence” for the value of patents is America’s prosperity since 1790, when the first Patent Act was introduced (on the heels of the 1789 Constitution and its patent clause). Does this mean that when the patent clause was put in the Constitution, *before* “patent-induced” American prosperity had happened, the founders had no reason to include it in the Constitution?

American Cowboy:

“To you anti-patent posters who are patent lawyers, a couple of questions:
Have you ever had a client come to you indicating that he was motivated to invent what he invented because he expected he could get a patent that would protect him from having his invention stolen?”

No, for a couple reasons. First, that would be irrelevant. Why would they say this? They want someoen to help them patent an idea. Why would they need to explain their reasons for inventing? They are completely irrelevant. So even if someone had, I would not expect them to say this. Second, most of my clients have always been large corporations. They are too sophisticated to get all emotional about this.

Finally, let me say that even if they had said this–so what? All this proves is that some innovation is engaged in partly for the lure of patent monopoly profits. That does not show that overall innovation is encouraged, or, even if it is, that it’s worth the cost of the patent system. For example, it could be that resources are shifted from basic R&D, which is not (as) protectable by patent law, toward invention of practical gizmos. Why is it good that the state distort the structure of innovation in an economy? The distortion could lead to reduced societal wealth and/or even reduced overall innovation. And it could also be that once someone obtains a monopoly, they have less incentive to continue innovating, leading to less innovation. Further, suppose we assume that the patent system does increase the overall amount of innovation. In this case, how do we know that the value of this extra innovation is greater than the cost of the patent system? Suppose the costs of the patent system are $100B and the value of extra innovation is $10B. So society is $90B worse off. To make this clearer, consider that instead of the patent system we had a system of tax funded prizes for innovation (a socialistic program which many IP proponents unfortunately support, see http://www.stephankinsella.com/2009/08/04/whats-worse-80-billion-or-30-million/ , http://blog.mises.org/archives/008396.asp , and http://www.againstmonopoly.org/index.php?perm=593056000000000206 ) Suppose there was a $1triillion “innovation award fund” funded with tax dollars. Would this spur more innovation? I’m sure it would. Lots of people would scramble to invent things, to apply for state welfare handouts. Would this be good for society? No. First, the theft of taxpayers is not good, period–from an ethical standpoint. Second, if the value of the new innovation is $100B then we have wasted $900B. Right?

“Have you ever had a client come to you saying that he had to get a patent to attract the investment needed to take his invention from the lab to the market?”

Yes. And this is because in our system, if you don’t protect your ideas with patents, investors are wary since you are not availing yourself of all legal protections. They are afraid you have not minimized your risk of being sued, etc. But that does not mean the patent system is justified. It means this state intervention has indeed succeeded in distorting the market. Consider: suppose the state socialistically taxed everyone to establish a $1Trillion annual innovation fund, that tech companies could apply for. Now, do you think a VC would fund a company who didn’t apply for this? No, because they would be at a competitive disadvantage with respect to other companies who do. So you would have to apply for the welfare handout in order to get VC funding. Does this mean the welfare program is a good idea? No. It only means it affects incentives in society (for the worse).

“I have clients like that all of the time, which I consider completely adequate evidence that new inventing and the commercialization of new inventions are indeed driven and made possible because of the existence of the patent system.”

Yes, it is evidence that if you offer someone the ability to extract monopoly profits from others, they have an extra incentive to do what is needed to obtain this monopoly position. So sure, *some* innovation is done in response to this incentive. But as noted above, this is at the expense of other innovation–such as basic R&D. And it is as the expense of innovation that is not done by patent-holders resting in their laurels, since they are now commanding monopoly prices. Further, if the patent system as a whole, and the state apparatus that is necessary for it to exist, makes us all poorer–as it certainly does — then everyone has less wealth remaining to invest in innovation in the first place. See on this, e.g., Rothard’s Toward a Reconstruction of Utility and Welfare Economics http://mises.org/daily/2205 . What you are doing is seeing only a small part–you are seeing the results of state stimulation of part of the economy but you are not counting the costs, you are not seeing the costs; in fact the innovation lost or forgone is not even seen, since it does not exist. but it is a cost. For more on unseen costs, See Bastiat, and Hazlitt http://mises.org/daily/2698 , http://mises.org/daily/2868 )

“Assuming that you have had similar experiences, how do you think those clients would react in a regime of no patents or patent term=0?”

I think some of then would invent anyway; some may not; some would use trade secrets or other mechanisms; some would not; some would invent even more, after the initial invention, because they would not be able to rely on a monopoly protecting them from competition; some would invest more simply because they were richer, because they were in an overall richer society.

Michael A. Clem September 30, 2009 at 10:55 am

We know that, in all areas where it has been tested, people will line up out the door to gain monopoly privileges and other governmental favors. See, for example, the Cash for Clunkers program, or the massive bailouts resulting from the (government-created) economic crisis. What the IP crowd have yet to prove is that IP is indeed real property, and not merely another government privilege.

Bala September 30, 2009 at 2:05 pm

SK,

Your long post just proves my point. Just look at the effort you put into it and my goodness!!!!! I think there are much better things you could do with your time and energy if you decided to focus your attack. No one who is convinced about IP is going to buy your argument.

Granted that academically speaking, the onus of proof is on the side of IP proponents. What I think you are missing is that you and they are at the negotiation table and they have shown that they have a gun that they are ready point at you and use, while you don’t have one. Are you going to negotiate with them or get your own gun?

Dmitry Chernikov September 30, 2009 at 7:32 pm

So, Kinsella, suppose there was a movement to abolish IP laws. Would you advocate in favor of the movement based on your ideological views or against it because of your more narrow self-interest to stay employed?

Bala September 30, 2009 at 8:02 pm

Dmitry Chernikov,

I know the question is to Stephan, but I shall try to address it.

Firstly, a lot depends on what one’s understanding of the word “interest” is. If you limit it to “pecuniary considerations associated with being a patent attorney”, that would be very irrational on Stephan’s part. I don’t think he is that stupid. At the same time, I am sure with his understanding of Law, he will be able to find other fields of law to work in. Especially if there are people who recognise that he had a major role to play in the (hypothetically successful) fight for Liberty, he is sure to find a lot of clients. So, let you and I stop worrying about him and his career.

Further, given that he has chosen Liberty as his key value, I am sure he has the maturity to go through the monetary privations (if any) that come up in any struggle for Liberty.

So much for trying to “trap” him. Very juvenile indeed.

Stephan… Sorry about speaking on your behalf, but this was too tempting.

Stephan Kinsella September 30, 2009 at 10:30 pm

Dmitry Chernikov:

So, Kinsella, suppose there was a movement to abolish IP laws. Would you advocate in favor of the movement based on your ideological views or against it because of your more narrow self-interest to stay employed?

First, Bala’s reply was nice. Second: this is just bizarre. This is not about Stephan Kinsella. Whether I woud or would not do something has nothing to do with whether IP law is justified. As a practical matter any abolition will take a while and would have a transition period that would employ IP lawyers for a long time. But even if not–yes, I’d advocate its abolition and find something more productive to do.

But you guys are bizarre–you act as if if you can catch one person, Stephan Kinsella, being (say) a hypocrite, this means… what? That IP is justified? Wow, I didn’t not the normative fabric of the universe turned on the actions of a lone 44 year old attorney in Houston, Texas.

Gil September 30, 2009 at 11:51 pm

Why should the burden of proof be on I.P. proponents? Different forms of I.P. have existed for thousands of years and I.P. always seems to appear when societies embrace innovation and invention.

Alteratively, do R.P. proponents have to prove that benefits of private property ownership, especially in land, will always outweigh any deficits? I.P. owners need the force of the state? So? So do many R.P. owners. How many isolated farmers could seriously defend themselves against rogue gangs in a stateless world?

Bala October 1, 2009 at 1:11 am

Gil,

” Why should the burden of proof be on I.P. proponents? ”

Stephan is conceptually correct because whether the question is “Should IP law continue as it is?” or “Should IP law be repealed?”, the fundamental question to be addressed is “Should IP law be there at all?”. On this issue, the burden of proving that a law should be there always lies on its proponents and not on its opponents. This follows the general principle that if I make a proposal, I should make a case for it. However, you are likely to think otherwise because the law already exists. That’s what complicates the discussion.

In my opinion. however, that is not the core issue to discuss. The core issue is that there is an inherent contradiction between the “right” to Intellectual Property and the “right” to Liberty. Acknowledging and enforcing “right” to IP by law would mean that government machinery will need to be used to violate some individuals’ “right” to Liberty.

To put it in simple terms, you can protect Intellectual Property or Liberty but not both. For you (as it is for everyone) the choice is between the two. Trying to choose both would be tantamount to trying to have the cake and eat it too.

As you would know, when I entered these discussion fora, I was an ardent advocate of IP. However, the moment I realised that the choice is really between IP and Liberty, the choice was automatic.

At another level, a lot of discussion on issues like “If ideas are not protected, why will innovators innovate?” are highly misplaced because protecting ideas and innovations is a problem for the innovators themselves to solve. It is not for you or me to try to help them through government, especially if it involves violation of individual Liberty. Morally, I would recoil from that last bit because by doing so, I am preparing the ground for my eventual enslavement by Government. IP law is the Trojan Horse we allow into the fortress of Liberty.

Gil October 1, 2009 at 5:43 am

Oh please Bala! Others could say land ownership is anti-liberty as it makes every one but the owner a trespasser and people can no longer traverse vast lands.

Bala October 1, 2009 at 6:38 am

Gil,

There are many differences. When you for instance talk of a piece of land, there is only 1 of a piece. If I have it you cannot and vice versa. It is a conflict situation when both want it and there is only two ways to resolve it – fight for it or accept the principle of “finders keepers”. The latter is a part of the self-limiting nature os Liberty – the age-old notion that one man’s freedom ends where the other man’s nose begins.

On the other hand, any number of people may arrive at the same idea without any conflict. So why are we creating conflict where none existed in the first place by insisting that every person who came up with an idea later should either not do so or pay the first one before doing so? Who is anyone to say that I should not sit in my personal space and think in a particular way? I find that grotesque. Is this not an unjustifiable violation of Liberty?

Secondly, it is always possible for an individual to clearly mark the boundaries of his physical property. He does not need any outside intervention to communicate to the other person that the piece of land in question has been taken possession of. He is also in a position to organise his own private defence to protect it from trespass. On the other hand, IP requires coercive govenment action to prevent an individual from thinking in a particular way and acting as per that, even though he could do so without causing any conflict. Do you want to give Government the right to violate Liberty? This, IMO, is a key question.

Gil October 1, 2009 at 7:33 am

“Do you want to give Government the right to violate Liberty?” – Bala

By this token you would have to argue that I.P. must not be enforced through private means. That is to say there are no private equivalents of I.P. and anyone who tries to enforce their own vision of private I.P. is really just a cheap thief and thug.

“Who is anyone to say that I should not sit in my personal space and think in a particular way?” – Bala.

What a piss-poor concept of I.P.! That’s the equivalent of saying “I used to be able to get to the beach in summertime but now the land fallen under private ownership and I can’t enjoy summer anymore”. Or “the great land rush is over and there’s no more land to be had and I so wanted to be a landowner instead I have pay rent to someone to occupy some land”. Yeah tough luck if your invention got patented by someone else before you but then what happens when the patent runs out? It’s a free-for-all then!

Peter October 1, 2009 at 7:38 am

@Gil: If land ownership was treated like “IP”, the first guy to stake a claim to a piece of land would own all land, everywhere throughout the universe! Clearly, there’s a big difference between land and IP!

Gil October 1, 2009 at 9:25 am

Anyone who makes a claim to owning every and all lands doesn’t automatically disqualify the concept of private landownership so too I.P. abuses don’t disqualify the concept of I.P.

Havvy October 1, 2009 at 5:10 pm

If land is available to all, and by extension, no property rights excluding the right to oneself, a tragedy of the commons occurs, as everybody uses up rapidly the best parts of the common since saving is impossible. If thought is available to all, the best parts will also be taken, except for the fact that once taken, it still remains. The pie of thoughts is everlasting. There is no inefficiency caused by two people using the same idea. There is with physical property.

Bala October 1, 2009 at 8:39 pm

Gil,

“piss-poor”

Nice word. Instead of retaliating in kind, I’l give you a situation. A and B work independently on something. Both, independently and with no contact with each other, come up with an idea that has commercial viability. The only difference is that A did it first and filed for a patent.

The simple question is, given that B too came up with the same idea with nothing taken from A, why should he not be free to act as per his idea, produce and profit? Why should a portion of his production belong to A? Why should he be forced to part with a part of his production and how is such forcing not a violation of his Liberty?

When you ridiculously extended the point I made to land, you missed something extremely simple. If A has acquired physical property first, for later entrant B, there are 2 ways of acquiring – trading or snatching by initiating force. On the other hand, to come up with an idea that has in the past been created by A, B does not need to initiate any force. Thus, using the physical property acquired by another without his permission necessarily involves the initiation of force while using an idea previously developed by another does not necessarily involve the initiation of force.

My understanding of Liberty is the freedom to act as long as such action does not translate into initiation of force against another person. (I don’t know what your definition is, but from what you have posted, it seems rather bizarre)

B’s trespass on A’s land is necessarily an act of initiation of force while B’s coming up with an idea that A came up with earlier is not an act of initiation of force by B on A. However, preventing B from acting as per his idea necessarily involves the initiation of force by A or his agent, the government.

Gil October 1, 2009 at 10:07 pm

Yeah well Bala your scenario would only apply to patents but not copyrights. If one guy has copyright ownership of his sci-fi story he doesn’t exclude everyone else from their sci-fi stories provided they don’t use his story components. I’d like to think patents only applied that which was genuinely new & innovative as well only lasting a fairly short time (I like the thought of 5-10 years)after which the invention and their derivatives became public domain. If people are doing their best to extend the life of patents and generally be patent hogs then it’s a shame but I don’t see how that disqualifies the basic concept of patents per se. (By the way I believe software should be covered with copyrights and not patents as they are not inventions to me per se but text like a story).

Actually, yes Havvy, I see a world without I.P. being a ‘intellectual tragedy of commons’ – people will be slow to innovate because they can’t recoup their costs in R&D or engage in ‘open innovation’ where progress will be slow and/or low quality.

Bala October 2, 2009 at 2:09 am

Gil,

” I’d like to think patents only applied that which was genuinely new & innovative as well only lasting a fairly short time (I like the thought of 5-10 years)after which the invention and their derivatives became public domain. ”

I fail to see how violation of Liberty becomes acceptable just because it is for a duration you are ready to perceive as “short”. To me, a violation of Liberty is unacceptable irrespective of the duration.

On copyrights, I fail to see how the fact that A has strung together a set of words (or even a set of curves and straight lines in the case of pictur-books and cartoon strip books) in a particular way should be taken as justification to prevent B from stringing words together in that manner. I also fail to see how B’s stringing the same words together in the same manner is an initiation of force by B on A. In fact, any act to prevent B from stringing words together as he wishes or to force him to pay a part of the fruits of doing so to A would be an initiation of force on B. Thus, copyright law gives legal sanction to violation of B’s Liberty and gives A a legally sanctioned share of the fruit of B’s actions, to obtain which for A, the State is arming itself with the powers to violate B’s property rights.

Unlike what you would like to imagine, the violation of Liberty that is inherent in patent law is inherent in copyright law too. It is a wonder indeed that you still don’t see this obvious point.

Bala October 2, 2009 at 2:40 am

Gil,

” I see a world without I.P. being a ‘intellectual tragedy of commons’ – people will be slow to innovate because they can’t recoup their costs in R&D or engage in ‘open innovation’ where progress will be slow and/or low quality. ”

Do you see what a bundle of assumptions you are making? And what a mistake too!!! The commons pre-exist while ideas need to be produced. The commons remained commons because no one really thought the effort of staking claim is worth the benefits they seek to get out of the commons. On the other hand, people who generate ideas do so because they have problems to solve. Since life never ceases to throw problems at man, there will always be men who will come up with ideas. What may change is the way they act on those ideas. In the absence of patent protection, they will have to work harder if they desire more benefit from the ideas they generate. That may mean that they will need to come up with all new business models and ways of producing and selling or realise that ideas alone have limited value and settle for the lower returns that the market is ready to give them. In any case, there is a lot that production and implementation add to an idea. Hence, it is not surprising if ideas get a smaller share than we are currently used to seeing.

Further, are you trying to scare advocates of Liberty by drawing a parallel to the “tragedy of the commons”? Hey!!! When we chose Liberty, we knew that there could be privations on the way, but we are also quite confident that it is the morally correct choice. And we are also confident that as in every other case, the morally correct choice will also turn out to be the practically best one. Fear should never prevent one from doing the right thing. It would not prevent us advocates of Liberty from doing so.

You now make the choice of which side you wish to be on.

Libertarian Bullshit October 2, 2009 at 3:31 am

And Liberty also means I have the right not to sell you my invention unless you agree not to reproduce or reverse engineer it.

Libertarian Bullshit October 2, 2009 at 3:36 am

And if you try to reproduce or reverse engineer it, I can sue you for fraud in the Utopian Private Court System.

Libertarian Bullshit October 2, 2009 at 3:42 am

Same goes for copyrights, licensing, etc. You think your book is actually “yours” to do whatever you want with? Not if you signed a contract stating “no unauthorized reproduction”.

antiip October 2, 2009 at 7:54 am

Wow Bala! Thank your for your very sound arguments!

Bala October 2, 2009 at 9:22 am

Libertarian Bullshit,

” And Liberty also means I have the right not to sell you my invention unless you agree not to reproduce or reverse engineer it. ”

Multiple parts to your post. Firstly, you always have the right not to sell to anyone at all.

Secondly, you need to be clear whether you are selling it to or not because as I understand it, the term “sales” means a transfer of “ownership”. That means that while the product you sold remained your property before you sold it and you were free to dispose of/utilise it as you proposed, once you sell it, it becomes my property to do with as I please.

By what standard are you trying to dictate to me what I should do with my property? Are you claiming that you have property rights in my property though you sold it to me?

Thirdly, such a contract would be held null and void in a court of law because the clauses on “reproducing” and “reverse engineering” those would be violations of my Liberty to study my property, understand how it works and then act as per the understanding. It would also be a violation of my property rights, but that’s a smaller issue.

On the ground that you are asking for my Liberty in exchange for the product alone, the court would strike down the contract as unenforceable.

Just take a look at America’s Bill of Rights. It says that the Right to Liberty is “inalienable”.

To take a slightly humorous view of it, how would you like to be in the position of a modern-day Shylock? 1 pound of flesh, but no more. Not a drop of blood shall you shed.

Bala October 2, 2009 at 9:30 am

antiip,

I should do the thanking. The questions I faced on these boards (from you too) led me to the answers. I always said I am here to learn. A true Objectivist will always be ready to question his premises and change them if found faulty. Thanks once again.

newson October 2, 2009 at 10:41 am

havvy says:
“If thought is available to all, the best parts will also be taken, except for the fact that once taken, it still remains.”

trade secrets are an effective way to preserve monopoly rents in some industries. (think coca-cola’s formula). swiss watchmakers couldn’t prevent copiers dismantling watches, but no one had access to the assembling/machining tools in their workshops, so the competitive edge was maintained for long periods.

in past eras, trade secrets were jealously guarded – think of the resin-treatment that made stradivarius violins so precious. no one has reverse-engineered that process. same for russian leather, the curing process lost in the bolshevik revolution.

even in industries with processes amenable to reverse-engineering, loss of long-term monopoly rents in combination with a freer flow of information and cross-fertilization of ideas would only change the way progress occurs. that is, more frequent, incremental changes (less upfront investment), rather than less frequent, bigger steps (and heftier investment) under patent protection.

newson October 2, 2009 at 10:46 am

to bala:
rarely do people change positions once heated words have been exchanged over strongly-held views. all credit to you.

Libertarian Bullshit October 2, 2009 at 6:47 pm

“Are you claiming that you have property rights in my property though you sold it to me?”

No, I’m claiming that you have partially given up those rights by signing a contract. If you violate the contract, that’s FRAUD.

“Just take a look at America’s Bill of Rights. It says that the Right to Liberty is “inalienable”.”

Then you can’t ever sign a contract, because any contract would be REQUIRING and/or PROHIBITING certain things (and it’s FRAUD if you violate the contract).

{ 60 comments… read them below or add one }

Libertarian Bullshit October 2, 2009 at 6:55 pm

Ok libertarians, show me a contract that doesn’t actually require someone to do something or doesn’t prohibit someone from doing something. What good is a contract if it’s “up to you” whether or not you feel like keeping the terms?

REPLY

Bala October 2, 2009 at 7:22 pm

Libertarian Bullshit,

” Then you can’t ever sign a contract, because any contract would be REQUIRING and/or PROHIBITING certain things (and it’s FRAUD if you violate the contract)……. What good is a contract if it’s “up to you” whether or not you feel like keeping the terms? ”

That’s not the point. A contract may be signed and remain enforceable if it specifies what precisely each party commits to deliver to the other. There exist a whole range of areas where people may thus enter into contracts with each other. Such contracts will clearly be enforceable, including penalty clauses that are clearly specified and quantified/quantifiable.

A contract will become unenforceable if it includes vague and unspecified terms the meaning and value of which are subjective and can never be estimated with certainty. In particular, you can never “contract” away your Liberty just as I cannot do that to mine. That is tantamount to saying that slavery is alright because you agreed to it on your contract. I am sure you are not arguing for “slavery by contract”. If you do enter into a contract of that kind, it would be extremely foolish on your part to do so (now that you understand the meaning) and you would richly deserve to have your “contract” thrown out of court.

Thus, the point is that if you want to protect your invention, a contract of the kind you mentioned is a poor choice. You need to think harder. You need to come up with a new business model that serves the purpose. You need to recognise the fact that you cannot sell me a product that becomes my property and then require that I should not try to understand or replicate the idea. Laziness should not take you (or me for that matter) to seek the help of a thug to settle disputes in our favour. If you invite the devil over for a feast, it won’t be long before you become the devil’s feast yourself.

REPLY

Brian Drake October 2, 2009 at 7:25 pm

Bala,

Why can’t you contract away your Liberty? What is wrong with slavery by contract?

REPLY

Bala October 2, 2009 at 7:36 pm

Brian,

Actually, the problem is with slavery, contractual or otherwise. You need to decide whether human beings can be bought and sold and, more importantly, owned like other assets. We do that to other animals and physical goods, but are we ready to do it to ourselves?

The point is that it is in the principle. If you accept the principle that slavery is alright if it is by contract, the same can be turned back on you. So, in enlightened self-interest, you would turn around and say precisely what I said.

Further, please specify how you would enforce “slavery by contract”. I can imagine what it would involve and it really puts me off. I would feel like the lowest life-form on earth if I were to act thus. How about you? In addition, no one who accepts Liberty as inalienable would help you enforce your contract. You will need to take the help of someone who does not see Liberty as inalienable to enforce it. That person is sure to be armed to the teeth to make this enforcement possible. Where does that leave your Liberty? Please make a choice.

REPLY

Libertarian Bullshit October 2, 2009 at 7:55 pm

“A contract will become unenforceable if it includes vague and unspecified terms the meaning and value of which are subjective and can never be estimated with certainty.”

Nothing vague about “no unauthorized reproduction”. You can use it but you can’t copy it as a condition for being able to use it; why is that so hard to understand?

“You need to decide whether human beings can be bought and sold and, more importantly, owned like other assets.”

People are bought and sold all the time. It’s called employment. A worker sells himself for a paycheck every week. The employer can specify whatever terms he wants, including 16 hour days with 8 hours sleep, 7 days a week, if both parties agree. If a worker doesn’t want to do it any more, he can “buy his freedom” by forfeiting future earnings.

REPLY

Bala October 2, 2009 at 8:11 pm

Libertarian Bullshit,

” Nothing vague about “no unauthorized reproduction”. ”

I agree. There is nothing vague about it. The infringement of Liberty and the clear intent to do so is so obvious that even a blind man can see it. I must have been worse than blind to miss it the first time around.

Simply put, the term “unauthorised reproduction” implies that in order to do something with MY property, I need to seek your authorisation. So, I am to use MY property with YOUR permission. How sweet of you!!!

I hope the problem with patents is becoming clearer.

” People are bought and sold all the time. It’s called employment. A worker sells himself for a paycheck every week. ”

Most ridiculous argument. Slavery is when a person’s Liberty is taken away. A person who can walk away from a job can by no means be said to have lost his Liberty and hence be called a slave.

By any chance, are you used to working in a place where people are chained to their seats and whipped to do the job with no option of walking off?

In summary, employment is not slavery. It is a promise to work against the commitment from the employer of payment of a specified (fixed and/or variable) amount. Failure to deliver (on the part of the employee) does not imply anything other than the loss of the job. Please show me the “slavery” bit.

REPLY

Libertarian Bullshit October 2, 2009 at 9:08 pm

“I need to seek your authorisation. So, I am to use MY property with YOUR permission. How sweet of you!!!”

That’s right, just like ANY OTHER CONTRACT that REQUIRES you to use YOUR property in a particular manner.

REPLY

Bala October 3, 2009 at 2:27 am

Libertarian Bullshit,

” That’s right, just like ANY OTHER CONTRACT that REQUIRES you to use YOUR property in a particular manner. ”

You have no business telling me what I do with my property unless it infringes on your Liberty. Therefore, it is precisely clauses of the kind you are hinting at that will be declared null and void in court because that would be a violation of my liberty. You really seem to be saying that slavery is alright if it is contractual. Quite an interesting viewpoint.

REPLY

Vanmind October 3, 2009 at 11:49 am

Great post, exposes guild mentality.

REPLY

Travis October 23, 2009 at 11:10 am

How much do you charge and where are you located
I live in Watertown MN. It is about an hour away from Minnapolis and close by St. paul.
I is about patents for inventions
I can’t wait to hear back from you!

Thanks

Comments from Quinn’s article, Reality Check: Anti-Patent Patent Musings Simply Bizarre (newest comments appear first)

  • Stephan Kinsella

    October 1, 2009 11:48 amCowboy:

    “I said “Patents are the thing the little guy has that can make the government side with him against big business.” and Stephan replied: You really think the government is on the side of the small businessman? This is insane.

    “Stephan, you misconstrue my argument. The courts and the enforcement mechanisms of the courts are the parts of government that I had in mind.”

    I repeat my comment: you think the (courts of the) government are on the side of the small businessman?

    “I agree with you that the Congress/Administration complex can be very destructive.”

    CAN BE? How about ALWAYS IS.

    “Stephan, you seem to be opposed to the government backing individuals claims of intellectual property rights, and simultaneously champion rights in other forms of property like realty, personal property, money and finance. Do you endorse the government aiding those property claimants from those who would threaten to take them away from the claimant?”

    The state is inherently criminal and thus the only thing I “endorse” it doing is closing its doors. I’m an anarchist libertarian. But we can still distinguish between the state doing things that are not inherently wrong, such as protecting property rights, and doing things that are inherently wrong, such as committing aggression (taxing, bombing Iraqis, jailing pot smokers, granting patents). The problem with the state doing the latter is not that it is the state doing it–it is that these things violate rights, no matter who does them. The problem with the former is not what the state is doing, but *that* the state is doing it–it has no right to monopolize the justice system.

    ” Should we tell the government to stay out of the way of theives and fraudfeasors?”

    Yes, it should stay out of it and let people alone.

    “I assume your answer is no, but I don’t see your argument for why the line should be drawn to allow that sort of government aid but not aid to those who document that their new developments meet the standards for a patent.”

    Because if the state is going to outlaw competition and monopolize the business of law and security, at least it shoudl stick to things that are legitimate–protecting property from invastion is a legitimate type of thing to do; the state should not assume the sole role of doing this, but if it does, it should stick to protection of actual property rights. It should not commit aggression, which it does when it enforces others types of laws, such as IP law.

    “Do you favor protecting the rights of authors of novels? photographers? painters? companies that we now call trademark owners?”

    I explain this in detail in my Against Intellectual Property. Try doing a bit of reading.

  • [Avatar for American Cowboy]
    American Cowboy

    October 1, 2009 10:30 amStephan, you seem to be opposed to the government backing individuals claims of intellectual property rights, and simultaneously champion rights in other forms of property like realty, personal property, money and finance. Do you endorse the government aiding those property claimants from those who would threaten to take them away from the claimant? Should we tell the government to stay out of the way of theives and fraudfeasors? I assume your answer is no, but I don’t see your argument for why the line should be drawn to allow that sort of government aid but not aid to those who document that their new developments meet the standards for a patent.

    Do you favor protecting the rights of authors of novels? photographers? painters? companies that we now call trademark owners?

  • [Avatar for American Cowboy]
    American Cowboy

    October 1, 2009 10:19 amI said “Patents are the thing the little guy has that can make the government side with him against big business.” and Stephan replied: You really think the government is on the side of the small businessman? This is insane.

    Stephan, you misconstrue my argument. The courts and the enforcement mechanisms of the courts are the parts of government that I had in mind. I agree with you that the Congress/Administration complex can be very destructive.

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    October 1, 2009 09:58 amPeter: Good points, all.

    You wrote: “Even if you assume that the curve in question is just a nice “bump”, rising monotonically to a maximum at some point and then falling again (which we have no particular reason to believe), and that the maximum point doesn’t change over time, how can you determine where it is?”

    Not only that–why would you trust the state to be able to–or even try to–find this optimum, even assuming it exists?

  • [Avatar for Peter]
    Peter

    October 1, 2009 07:46 am

    Do you know anything about picking the right point on the curve that maximizes revenue based on Price vs. Quantity? The same thing obviously applies to picking the right patent term.

    Even if you assume that the curve in question is just a nice “bump”, rising monotonically to a maximum at some point and then falling again (which we have no particular reason to believe), and that the maximum point doesn’t change over time, how can you determine where it is? You’d can change the term, and then wait and see the effect…but how long do you have to wait? It’s going to have to be at least several decades, right? And meanwhile you can’t account for many other variables that would affect the outcome (like the rate of potential innovation — new inventions don’t happen on a schedule). And if the curve is a wiggly line, even if there’s a global maximum, you can’t even tell if you’ve moved toward it or away from it (even if the total innovation, other variables accounted for, goes down, you might have moved to a locally lower point on the curve in the direction of the global maximum, so the right thing to do is to adjust the term further in the same direction, but if you think it’s a “bump” you’ll move it in the other direction instead!)

    {Many economists make the same error, with the so-called “Laffer curve” stupidity}

    Because I recognize the obvious, that patent term should be set at an appropriate level to provide enough incentive and encouragement to generate maximal activity I am being arbitrary.

    No. But if you claim that 20 years is closer to that level than 1000 years, or 0 years, or any other number, you’re being arbitrary, because you have absolutely no way to know that. Besides, it’s only “obvious” if you’re a utilitarian — even if you could know that a patent term of x (for non-zero x) would “generate maximal activity”, that doesn’t make enforcing patents moral.

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 30, 2009 11:44 pmGene,

    It is bizarre to see your umbrage here. You have the majority opinion, and you have won: your favored system is in force, and it is foisted on us dissenters. I am part of a small minority, and have no choice but to comply with the unjust rules that you favor and that your state is foisting on me. All I’m doing is disagreeing, inefficaciously. It’s not enough for you that you are part of the majority and are *getting your way*? I assure you, I’d be happy to have the tables turned: to have the immoral patent system abolished, and have a few interventionists whining about it–I wouldn’t begrudge this to you.

    Your attempt to turn this personal doesn’t work, I”m afraid, because I don’t take the bait, and because it’s plain to anyone that the normative fabric of the universe does not depend on the actions of a 44 year old attorney in Houston, Texas. It’s not about me, man. It’s about whether patent law is justified. (But on that score: calling me a sellout and hypocrite is bizarre; I’ve taken a stand contrary to my financial interest; if anything, it is the pro-patent opinions of those who have a financial interest in the patent system that should be suspected of bias.)

    Anyone reading can see that I’ve given ample, systematic, thoughtful reasons for doubting the IP case. I’m happy to let them read my careful, sincere, informed arguments, and your own scattershot offerings, and decide between them.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 30, 2009 10:18 pmStephan-

    I am not going to play by your facts, which are not facts whatsoever. I have presented questions for you, and you ignore them. We all know that is because you cannot answer them without agreeing with me, so you simply change the questions and claim you are answering me. This is old, tired and I have no interest any more. Arguments are not facts, and ignoring reality, human nature and laws of economics while asserting your credentials as a response to substance is nothing more than smoke and mirrors.

    I get it, we cannot have a debate. That is fine. The fact that human history on my side is obviously not facts you would support. Go ahead and be a patent attorney who believes 0 years of patent is appropriate. If that is your view you are entitled to it, but don’t get on your high horse because I have the audacity to point out that you are a hypocrite and sell out. Stand up for what you believe, practice what you preach, or leave us alone. Acting on beliefs and facts is not immoral, although participating in a regime you fundamentally disagree with to the detriment of your clients is exactly immoral if not unethical.

    -Gene

  • [Avatar for David Koepsell]
    David Koepsell

    September 30, 2009 03:49 pmGene,

    By retuning to the issue of whether something else “works” you are ignoring my claim that utilitarianism doesn’t justify IP rights, but nontheless yes, I can point to periods of significant innovation in which there were few enforced IP rights. Specifically, at the beginning of the Enlightenment in Europe, and the burgeoning scientific age, plenty of innovations were created, a flourishing of industry and growing economy followed, and IP rights very still only modestly pursued. Similarly with a preceding age, the Renaissance. These were great times of art and industry, and the modern era essentially sprung from them, yet who can point to a single patented item or group of items or arts that caused this growth? Rather, it was science and empiricism as working paradigms for discovering truths that paved the way for the modern era. Only later, in the twentieth century, did industries begin to rely so strongly on IP rights to protect their market shares.

    Nevertheless, my argumetns against IP remain untied to utilitarian issues.

    best,
    David

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 30, 2009 03:17 pmGene:

    “It is getting extremely old for you to say I am not discussing the issue. It is you who ignore facts. It is time for you to address facts, rather than blow them off as if they are meaningless. How can you actually read what I write and see no discussion of the issues?”

    Gene, I am sorry to annoy you, but that is how you come across to me. You keep saying “address the facts” like a scientistic monomaniac, even though you are giving no facts at all; the only facts in issue are studies that almost universally support our view not yours; you just ignore these.

    I have carefully and systematically explained what is wrong with the various arguments in favor of IP. You have ignored every one of them. In fact, to be honest, I am not sure you even understand what I’m saying. You seem to be so mired in engineers’ syndrome and scientism (and I would guess you don’t even know what I mean by scientism, or why it’s a pejorative) that my normative reasoning sounds like babble to you. It is understandable many engineers have trouble following coherent, systematic, normative and political reasoning without resorting to their inadequate empiricist comfort zone, but why they think they ought to weigh in on matters in which they are out of their depth is beyond me.

    As the great Murray Rothbard once wrote, “It is no crime to be ignorant of economics, which is, after all, a specialized discipline and one that most people consider to be a “dismal science.” But it is totally irresponsible to have a loud and vociferous opinion on economic subjects while remaining in this state of ignorance.” HTTP://MISES.ORG/STORY/2197

    “I know this will come off as rude, but I am going to say it anyway. I am starting to question your intellectual abilities and honesty. Ignoring facts, dodging issues and then repeating pat non-answers is hardly intellectually honest. Either you have nothing to say and resorting to liberal debating tricks and tactics or you are a lightweight.”

    I don’t mind. But out of charity I will refrain from characterizing you. I’m certainly happy to let your comments speak for themselves, and for readers to judge which of us is the intellectual lightweight. But I might refer you to the Rothbard comment above.

    “You say: “You really think the government is on the side of the small businessman?”

    REPLY: I did not say that, you know I did not say that and it is absurd for even you to insinuate that is what I said.”

    Gene, as you can see from my reply, that was a reply to Cowboy.

    ” Businesses need to look out for themselves and use what tools the government provides to their advantage.”

    Sure, I agree. But that does not mean the state should provide the system in the first place.

    ” No one is on the side of anyone, which is why businesses and individuals need to stand up for themselves and be accountable for their decisions. A decision to knowingly not seek patents because of a philosophical objection is flat out stupid.”

    Sure. Did I imply otherwise?

    “REPLY: Once again I am baffled. You say 0 years of term is preferable, the patent system is a terrible thing and yet you look out for threats from competitors.”

    Yes, the patent system is terrible, because it lets people threaten my company (for example). Because of these threats. I have to look out for them. There is nothing here to baffle anyone.

    “Obviously, these things are mutually exclusive. Why not practice what you preach? Patents are evil and should be 0 years of term, so that means your clients should not seek patents and enjoy the 0 years of term that come with no patents. Looking out for competitors is silly if you want no exclusivity, with unchecked competition that allows complete and total copying and rip-offs.”

    Now you seem once again to be making a (lightweight, amateur) hypocrisy argument yet again. Your reasoning is laughable but let’s say you’re right. Okay, I’m a hypocrite. How, pray tell, does that show that the patent system is justified?

    Your response here is all beside the point. What is the relevance of whether or not I’m a lightweight, or a hypocrite? You have not responded to my careful reasons about flaws in the IP case; you have not responded to the dozens of studies we pointed you to nor provided any of your own (you only said to ignore the studies and focus on “the history”). You continue to presuppose a host of (false) normative assumptions (about the nature and purpose of law and rights, for example; the nature of science and economics) without, apparently, even realizing you are doing this or the need to make these explicit and to justify them. You continue to speak from a hampered scientistic perspective where norms collapse into “facts” (which you don’t have anyway) until you want to re-assert them back as norms again, using some crude intuitionism.

    Again, I will note that you need to show how you know that the patent system generates more wealth than it costs. If you know this, tell us how, and tell us what the net gain is–say, in billions of dollars. Until you do this, you are quite obviously just repeating the state’s own propaganda that it uses to defend its actions.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 30, 2009 03:02 pmDavid-

    I understand your causation vs. correlation argument, I really do. I also know you are not a socialist, and maybe I should have even gone there. I was just trying to point out that on paper a lot of things look good. Who wouldn’t want socialism if it worked? Living in the Garden of Eden where everyone gets along and does things that better society for the fact that it betters society. Who wouldn’t want to live in Utopia or Heaven? That was my point. I just don’t think it can exist given the human condition.

    I think a public funding model works VERY well in instances. Bayh-Dole is one of them, and in sponsoring research that is pure science and may not lead to anything is another. But how much money would need to be spent to equal that which is spent now? A public funded model just couldn’t approach those amounts, which would mean less spending, less looking and that has to lead to less discovery and innovation. I think Bayh-Dole works so well because it primes the pump and then gets out of the way.

    Let me try this. I know you don’t want to talk about history because of correlation vs. causation. Nevertheless, is there any evidence at all that you can point to of an historical, objective proof that could even suggest no or limited rights would be better? I can think of none. This is the same problem I have with the Obama agenda. Will it work? Who knows for sure, nobody knows. What can be said with great authority is that it has never worked at any point in history, and has repeatedly failed when tried. That being the case, why do we call plays from a playbook without any historical success. Doesn’t make any sense to me. Where it is causation or correlation, why deviate in hopes?

    The fundamental thought process of an engineer is that if it is not broken don’t fix it. What separates engineers from scientists is that engineers factor in reality and if theory says it can’t or won’t happen, but it does, then it does and that is to be accepted and factored into things, particularly when it is repeatable.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 30, 2009 02:43 pmStephan-

    It is getting extremely old for you to say I am not discussing the issue. It is you who ignore facts. It is time for you to address facts, rather than blow them off as if they are meaningless. How can you actually read what I write and see no discussion of the issues?

    I know this will come off as rude, but I am going to say it anyway. I am starting to question your intellectual abilities and honesty. Ignoring facts, dodging issues and then repeating pat non-answers is hardly intellectually honest. Either you have nothing to say and resorting to liberal debating tricks and tactics or you are a lightweight. I don’t know which it is, but it is obvious to everyone that there is no substance and you simply ignore valid points, facts and logic. Very sad indeed.

    By way of further answer…

    You say: “You really think the government is on the side of the small businessman?”

    REPLY: I did not say that, you know I did not say that and it is absurd for even you to insinuate that is what I said. Businesses need to look out for themselves and use what tools the government provides to their advantage. No one is on the side of anyone, which is why businesses and individuals need to stand up for themselves and be accountable for their decisions. A decision to knowingly not seek patents because of a philosophical objection is flat out stupid.

    You say: “My current client is a small company. I am continually on the lookout for threats to us from competitors. It’s a terrible thing, the patent system. It can put small companies out of business.”

    REPLY: Once again I am baffled. You say 0 years of term is preferable, the patent system is a terrible thing and yet you look out for threats from competitors. Obviously, these things are mutually exclusive. Why not practice what you preach? Patents are evil and should be 0 years of term, so that means your clients should not seek patents and enjoy the 0 years of term that come with no patents. Looking out for competitors is silly if you want no exclusivity, with unchecked competition that allows complete and total copying and rip-offs.

    -Gene

  • [Avatar for David Koepsell]
    David Koepsell

    September 30, 2009 12:58 pmDear Gene:

    Thanks for keeping a somewhat open mind about it. Please also note that my deontological argument precludes changing my mind unless you can successfully convince me about the injustice of my axioms. That said, I think the US is the best place to try the experiment, perhaps one technological or scientific sector that is already well funded through public funding. In fact, it’s the only way since it is the leading “innovator” according to your standards. The problem of proof in historical events are simply that: we can only see one thing following or proceeding another, but unlike physics, we cannot prove causation, we can only suggest it through correlation.

    And no, I’m certainly not a socialist. Clearly, since I don’t think governments should be in the business of providing monopolies to anyone, I oppose statism. I think science ought to be funded through voluntary public pools of money as well. All systems of government involving privilege will tend toward injustice, so I oppose patents and other legal artifacts that skew the free market.

    best,
    David

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 30, 2009 12:58 pmI see Gene has posted a followup. HTTP://WWW.IPWATCHDOG.COM/2009/09/30/RESPONDING-TO-CRITICS-MY-VIEW-ON-PATENTS-INNOVATION/ID=6421/ I do not see any serious attempt to discuss this issue, or even to really understand what we are saying, so I see no reason to respond there.

    Cowboy: “Stephan, I refer to you by name, not to be personal, but to focus the argument so that the points I make are considered in light of the points you make and are not intended as personal attacks.”

    I didn’t say they were. I answered you calmly and dispassionately.

    “The fact that Stephan usually has big corporations as clients may color his thinking.”

    My current client is a small company. I am continually on the lookout for threats to us from competitors. It’s a terrible thing, the patent system. It can put small companies out of business.

    I’ve represented individual inventors before but I dislike it. For one thing, they are usually very cheap and nickel and dime you. For another, they think their invention is the most important thing in the world so if they get a rejection, they are too stubborn to accept it–big companies know it’s a numbers game and are more sophisticated. Third, it’s often a waste of their money–they get the patent, and it papers their wall. $15k wasted.

    “Big corporations have less need of patents than little guys, because they have financial, market place, and staffing advantages that the little guys don’t have and can out-compete the little guys in a patent-free world.”

    They need patents to ward off suits from big competitors.

    “Patents are the thing the little guy has that can make the government side with him against big business.”

    You really think the government is on the side of the small businessman? This is insane. You know how the state can help the small businessman? How about not stealing half his income? Abolish the FDA. Abolish antitrust and minimum wage law. End the stupid drug war. Stop attacking other countries. To count on the criminal state which harms individuals in innumerable ways to “be on his side” is sheer lunacy.

    Noise:
    “As for Stephan – his views are clearly immersed in a politcal bent that obscures anything but his own view from being understood , much less “right”. His burden of proof is NOT as he states – it is up to him as he wants to change how the Law actually is. Sorry Stephan, the burden is on you.”

    You seem to believe the current law is presumptively valid, since you think the burden is on anyone who wants to change it. There is no reason to presume current positve law to be valid–it is just a statute enacted by a bunch of politicians. Why in the world would you presume it to be valid? Did Abolitionists have to prove slavery was wrong to want to change the law allowing slavery?

  • [Avatar for David Koepsell]
    David Koepsell

    September 30, 2009 12:41 pmwow, Noise, you continue to live up to the first half of your moniker, and to hide behind your anonymity.

  • [Avatar for David Koepsell]
    David Koepsell

    September 30, 2009 12:39 pmGene:

    Thanks for keeping a somewhat open mind about it. Please also note that my deontological argument precludes changing my mind unless you can successfully convince me about the injustice of my axioms. That said, I think the US is the best place to try the experiment, perhaps one technological or scientific sector that is already well funded through public funding. In fact, it’s the only way since it is the leading “innovator” according to your standards. The problem of proof in historical events are simply that: we can only see one thing following or proceeding another, but unlike physics, we cannot prove causation, we can only suggest it through correlation.

    And no, I’m certainly not a socialist. Clearly, since I don’t think governments should be in the business of providing monopolies to anyone, I oppose statism. I think science ought to be funded through voluntary public pools of money as well. All systems of government involving privilege will tend toward injustice, so I oppose patents and other legal artifacts that skew the free market.

    best,
    David

  • [Avatar for Noise above Law]
    Noise above Law

    September 30, 2009 12:38 pmBreadcrumbs,

    You waste your time. David Koepsell isn’t buying any rational arguments because he would lose any rational discussion. Thus he must engage in a false reductio ad absurdum – a tautological thrust to equate his failed view into an unassailable one. “It’s religion now – and thus I cannot be wrong”.

    Sorry, David, you are still wrong.

    Gene’s point (if I may be so bold to venture), is that it is useless to try to reason with someone who believes a point is religious and beyond reason. David, you have proven him correct with your statements here.

    You then have the audacity to post under the guise of science – More meaningless pontification. Lovely how such an impossible (but modest??) task is the only way you set to prove or disprove something. It appears that your level of understanding of science approaches your level of patent law. No wonder you want to phrase everything as a matter of religion.

    As for Stephan – his views are clearly immersed in a politcal bent that obscures anything but his own view from being understood , much less “right”. His burden of proof is NOT as he states – it is up to him as he wants to change how the Law actually is. Sorry Stephan, the burden is on you.

  • [Avatar for American Cowboy]
    American Cowboy

    September 30, 2009 11:56 amStephan, I refer to you by name, not to be personal, but to focus the argument so that the points I make are considered in light of the points you make and are not intended as personal attacks.

    The fact that Stephan usually has big corporations as clients may color his thinking. Big corporations have less need of patents than little guys, because they have financial, market place, and staffing advantages that the little guys don’t have and can out-compete the little guys in a patent-free world. Patents are the thing the little guy has that can make the government side with him against big business.

    Stephan says that his clients would invent anyway in a non-patent regime because some would use trade secrets or other mechanisms. What other mechanisms come to mind? John D. Rockefeller was in a commodity business (which is what would be much more common in a patent free world) and his way of staying comptetitive was to send out goons to attack competitors.

    In a non-patent world the other kinds of barriers to entry to a market become more valuable, such as having a bigger bank account than an innovator, a brand name that attracts a customer following, and an established network of users. Each of these tends to aid the success of incumbents against startups, allowing the incumbents to be able to rely on a monopoly protecting them from competition — just the sort of complacency that Stephan accuses of patent holders.

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 30, 2009 11:54 amGene: “I would also agree that free markets are the way to proceed, monopolies are evil and even socialism makes sense.”

    I am not sure what you mean by the last clause–socialism makes sense? is that a typo?

    In any event, I agree with you: free markets good, monopolies bad. It is mystifying then why you would favor socialism and monopolies. A free market means an economy in which private property rights are respected. Period. A patent is a grant by the state that gives license to its holder to use the state’s courts and police to force competitors not to use their own property in certain ways. A patent manifestly undermines and violates property rights. It is contrary to the free market. It is socialistic.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 30, 2009 11:47 amDavid-

    Can you explain what you mean by “problems of proof in historical events”?

    Not to be too cute, but I am all for the experiment you propose. I recommend it be tried first in a European country though. It seems there are a lot of candidate countries who would openly welcome the abolition of a patent system. I think they should go first, put their chips on the table, money where their mouth is, etc. etc. If it goes well then I could be persuaded. I am not unreasonable. We just have so much to lose not to get this right. The US is the dominant market in the world, and the most innovative country on the planet. Even if we are not industry leaders in certain areas, we are in the top 5, and being in the top 5 across all industries, plus being clearly No. 1 in some, perhaps many, indicates that we are doing something right and others are chasing us.

    I agree this is ultimately a religious debate on many levels. I would also agree that free markets are the way to proceed, monopolies are evil and even socialism makes sense (although I don’t think you are socialist and am not saying that you are). All kinds of things make sense on paper, sound great and just don’t play out in life for many reasons. If we could get innovation on the same level there would be no justification for a patent system, but history has shown that no patent system or weak patent system means no innovation and no investment.

    I would really love for someone to explain where the hundreds of billions or trillions of dollars in research and development will come from when there is no reasonable expectation to obtain monopoly rents. Innovation costs money, even simple inventions are enormously expensive and unless and until there is any kind of rational, reasoned argument that suggests it is likely that those with money, who are greedy by nature, will part with money on an altruistic base for the betterment of society and without expecting a return on investment. This just goes against human nature, or so it seems to me.

    Maybe we could test your theory with a Big Brother or Survivor like experiment, where we throw some folks on an island, maybe Gilligan’s Island. I am only half tongue in cheek here. I suspect it would wind up more like the Island of Dr. Moreau or The Lord of the Flies, rather than the Garden of Eden.

    -Gene

  • [Avatar for Sam Arvinson]
    Sam Arvinson

    September 30, 2009 11:35 amGreat article! I just wanted to point out that even though there are many hurdles invnetors and companys face when creating a new product, there is a website that helps with all those problems. It’s HTTP://WWW.INVENT.US Go and check it out.

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 30, 2009 11:29 amBreadcrumbs: “This master list could then be used as a base point of conversation, rather than the often times cross posting that satisfies neither camp.”

    I assembled a pretty large collection of them here: Yet Another Study Finds Patents Do Not Encourage Innovation HTTP://BLOG.MISES.ORG/ARCHIVES/010217.ASP
    I am aware of NO study that unambiguously concludes the patent system is “worth it” in utilitarian terms.

    Keep in mind the burden of proof is on the proponents of IP. IP is an artificial monopoly granted by the state–as Jefferson recognized–and is justified (according to the utilitarian logic of its proponents) ONLY if it DOES “increase the size of the pie.” Does it?

    Let me not again, however, that not everyone agrees with the utilitarian argument in the first place. Utilitarianism is incoherent, as an understanding of Austrian economics shows. Even if it was not economically incoherent, it is morally problematic: it is wrong to harm A, just because this benefits B and C. And even if it were not morally problematic or economically incoherent, the fact remains that IP proponents have not carried their burden of proof.

    I also note this interesting fact: some IP advocates sloppily trot out the off-the-cuff argument “well patents are good because look at the economic progress in America over the last 200 years.” What is curious about this is their “evidence” for the value of patents is America’s prosperity since 1790, when the first Patent Act was introduced (on the heels of the 1789 Constitution and its patent clause). Does this mean that when the patent clause was put in the Constitution, *before* “patent-induced” American prosperity had happened, the founders had no reason to include it in the Constitution?

    American Cowboy:

    “To you anti-patent posters who are patent lawyers, a couple of questions:
    Have you ever had a client come to you indicating that he was motivated to invent what he invented because he expected he could get a patent that would protect him from having his invention stolen?”

    No, for a couple reasons. First, that would be irrelevant. Why would they say this? They want someoen to help them patent an idea. Why would they need to explain their reasons for inventing? They are completely irrelevant. So even if someone had, I would not expect them to say this. Second, most of my clients have always been large corporations. They are too sophisticated to get all emotional about this.

    Finally, let me say that even if they had said this–so what? All this proves is that some innovation is engaged in partly for the lure of patent monopoly profits. That does not show that overall innovation is encouraged, or, even if it is, that it’s worth the cost of the patent system. For example, it could be that resources are shifted from basic R&D, which is not (as) protectable by patent law, toward invention of practical gizmos. Why is it good that the state distort the structure of innovation in an economy? The distortion could lead to reduced societal wealth and/or even reduced overall innovation. And it could also be that once someone obtains a monopoly, they have less incentive to continue innovating, leading to less innovation. Further, suppose we assume that the patent system does increase the overall amount of innovation. In this case, how do we know that the value of this extra innovation is greater than the cost of the patent system? Suppose the costs of the patent system are $100B and the value of extra innovation is $10B. So society is $90B worse off. To make this clearer, consider that instead of the patent system we had a system of tax funded prizes for innovation (a socialistic program which many IP proponents unfortunately support, see HTTP://WWW.STEPHANKINSELLA.COM/2009/08/04/WHATS-WORSE-80-BILLION-OR-30-MILLION/ , HTTP://BLOG.MISES.ORG/ARCHIVES/008396.ASP , and HTTP://WWW.AGAINSTMONOPOLY.ORG/INDEX.PHP?PERM=593056000000000206 ) Suppose there was a $1triillion “innovation award fund” funded with tax dollars. Would this spur more innovation? I’m sure it would. Lots of people would scramble to invent things, to apply for state welfare handouts. Would this be good for society? No. First, the theft of taxpayers is not good, period–from an ethical standpoint. Second, if the value of the new innovation is $100B then we have wasted $900B. Right?

    “Have you ever had a client come to you saying that he had to get a patent to attract the investment needed to take his invention from the lab to the market?”

    Yes. And this is because in our system, if you don’t protect your ideas with patents, investors are wary since you are not availing yourself of all legal protections. They are afraid you have not minimized your risk of being sued, etc. But that does not mean the patent system is justified. It means this state intervention has indeed succeeded in distorting the market. Consider: suppose the state socialistically taxed everyone to establish a $1Trillion annual innovation fund, that tech companies could apply for. Now, do you think a VC would fund a company who didn’t apply for this? No, because they would be at a competitive disadvantage with respect to other companies who do. So you would have to apply for the welfare handout in order to get VC funding. Does this mean the welfare program is a good idea? No. It only means it affects incentives in society (for the worse).

    “I have clients like that all of the time, which I consider completely adequate evidence that new inventing and the commercialization of new inventions are indeed driven and made possible because of the existence of the patent system.”

    Yes, it is evidence that if you offer someone the ability to extract monopoly profits from others, they have an extra incentive to do what is needed to obtain this monopoly position. So sure, *some* innovation is done in response to this incentive. But as noted above, this is at the expense of other innovation–such as basic R&D. And it is as the expense of innovation that is not done by patent-holders resting in their laurels, since they are now commanding monopoly prices. Further, if the patent system as a whole, and the state apparatus that is necessary for it to exist, makes us all poorer–as it certainly does — then everyone has less wealth remaining to invest in innovation in the first place. See on this, e.g., Rothard’s Toward a Reconstruction of Utility and Welfare Economics HTTP://MISES.ORG/STORY/2205 . What you are doing is seeing only a small part–you are seeing the results of state stimulation of part of the economy but you are not counting the costs, you are not seeing the costs; in fact the innovation lost or forgone is not even seen, since it does not exist. but it is a cost. For more on unseen costs, See Bastiat, and Hazlitt HTTP://MISES.ORG/STORY/2698 , HTTP://MISES.ORG/STORY/2868 )

    “Assuming that you have had similar experiences, how do you think those clients would react in a regime of no patents or patent term=0?”

    I think some of then would invent anyway; some may not; some would use trade secrets or other mechanisms; some would not; some would invent even more, after the initial invention, because they would not be able to rely on a monopoly protecting them from competition; some would invest more simply because they were richer, because they were in an overall richer society.

  • [Avatar for David Koepsell]
    David Koepsell

    September 30, 2009 10:55 amBread, Gene, and Cowboy,

    Still, I come back to my original comment above, that when it comes down to it, neither the pro-patent nor anti-patent “crowd” has proof one way or another. There is suggestive evidence on either side, but nothing conclusive given the problems of proof in historical events. What I have proposed is a modest experiment that might give us more convincing evidence. So far, I have seen nothing other than correlations, on either side, and none of these so far has shown causation. Moreover, there’s plenty of anecdotal offerings, which are worse than statistics. So, to make more modest my proposed experiment, let’s choose a sector of innovation for which we could eliminate patents for a time period, and see what effect this has on “innovation”… once we figure out how to measure that (not an easy task either).

    My arguments against patent are founded, as I have admitted, on beliefs which I thank Gene for recognizing are sincere. My beliefs are similar to Stephan’s but not identical, and they are based on a strong appreciation for property rights in moveables and real property, and a belief about the wrongness of usurping, via government-sponsored monopolies, peoples’ rights to profit as they wish from ideas. Yes, it’s true, I value ideas above real property. Our minds are the last bastions of our individual autonomy. So much so that I am unwilling to accept the morality of granting a governmental monopoly over the use of one’s ideas based upon something so arbitrary as filing something with a bureaucracy and getting that bureaucracy’s imprimatur. This isn’t the place to expound on this argument, but I wanted to point out that ultimately, points of view regarding the morality or even the efficacy of patents are not yet substantiated by empirical evidence. My particular arguments are not utilitarian, so I won’t be swayed by evidence either way regarding the degree to which “innovation” is encouraged or discouraged by patents.

    So, I maintain, this is ultimately a religious debate for most of us. I might try to convince you of the truth of my axioms, but they are not prone to falsification or substantiation by traditional means. Thus, I am swayed by studies that tend to support my conclusions, as the “patent crowd” is swayed by those that tend to support theirs. I have yet to see anyone change their mind, however, based on any of these studies.

    best,
    David

  • [Avatar for American Cowboy]
    American Cowboy

    September 30, 2009 09:53 amTo you anti-patent posters who are patent lawyers, a couple of questions:

    Have you ever had a client come to you indicating that he was motivated to invent what he invented because he expected he could get a patent that would protect him from having his invention stolen?

    Have you ever had a client come to you saying that he had to get a patent to attract the investment needed to take his invention from the lab to the market?

    I have clients like that all of the time, which I consider completely adequate evidence that new inventing and the commercialization of new inventions are indeed driven and made possible because of the existence of the patent system. Assuming that you have had similar experiences, how do you think those clients would react in a regime of no patents or patent term=0?

  • [Avatar for breadcrumbs]
    breadcrumbs

    September 30, 2009 09:51 amGene,

    Often in such discussions (on this and other blogs), studies proving or indicating some finding or another are bandied about as “truth”. My limited research indicates that often the anti-patent crowd incorrectly takes a study or faulty paper as proof of their paradigm without rigorous or critical review of the merits of the paper (the somewhat recent computer program model comes to mind that had egregious errors in its base programming).

    I have noted on Patent Docs and Patently-O that many of the studies purporting to show the harm of patents on innovation have been debunked. Perhaps it might be a good topic for an academic paper to collect the various purported studies and create a master list. When I have pointed out the debunked papers that serve as the cornerstone of proof in personal discussions, I am met with silence – until the next person with the same studies is engaged.

    David K., I believe that we have had this conversation. I thought you retired from dancing at that point.

    This master list could then be used as a base point of conversation, rather than the often times cross posting that satisfies neither camp.

  • [Avatar for David Koepsell]
    David Koepsell

    September 30, 2009 07:53 amamen, Mike Masnick. Do you have a list of those studies with links? I can always use more as further ammunition. Stephan has a good collection of references as well.

  • [Avatar for Peter Surda]
    Peter Surda

    September 30, 2009 06:27 amDear Gene,

    reading your posts made me think that your views are professionaly deformed (i.e. biased) and prevent you from analysing the situation objectively. For example, you assert that “This shows an acute lack of understanding of property rights.” (towards Stephen Kinsella). If you investigated more instead of just making assumptions based on your work experience, you would know that Dr. Kinsella has written extensively about property rights. Not just the positivist view that is taught at schools.

    You are making an assumption, that there is allegedly “evidence” that supports the patent system, and that opposition is against the “laws of economics”. So let me ask you, what is this evidence that you speak about? What are these laws of economics that you speak about? If you take a step back, could it be that you are just making an assumption without a solid foundation? It is a very natural thing for people to believe that their area of expertise is crucial for the whole mankind and when they don’t have special privileges, the whole world is doomed. I would not blame you if it turned out that this is the case. It doesn’t make it true though.

    If you allow, let me show an opposing view. I have been a software engineer my whole carreer (a bit of businessman too), and I have some amount of formal education in economics and law too. As far as I know, neither copyright nor patents were at any stage relevant for me for earning money. Does this baffle you? I simply use a different business method than a monopoly rent. That’s all.

    The utilitarian justification for IP (both copyright and patent) is that a (temporary) monopoly is necessary for a business to be profitable. So what are the primary features of monopoly? The price goes up and supply goes down. Any economist will confirm that. This is good for the supplier and bad for the consumer. Of course the supplier is happy.

    Let’s switch to the cost accouting perspective. A supplier has costs and revenues. He is trying to increase his revenues. If exposed to competition, that puts a check on his revenues, so he is also trying to decrease his costs, otherwise he goes out of business. If he has a monopoly, there is no pressure to decrease the costs. There are no “inherent” costs for their output, it is a matter of entrepreneurial skills. If it costs too much, it doesn’t necessarily mean that he needs a monopoly. It could also mean that the monopoly made him a lousy businessman (i.e. it could be that the argument is confusing the cause and effect).

    So, if we have an IP system, the revenues increase. But IP doesn’t only apply to the outputs, it also applies to the inputs. Therefore, the costs will increase too, for example by having a defensive patent portfolio. Another reason why using the costs as a justification is a bad argument.

    In my opinion, the progress of society is characterised by increasing productivity. This results in decreasing market prices and increasing supply. IP is the exact opposite of that.

    Another implicit assumption of IP proponents is that monopoly rent is the ideal (or, only) way of earning money off immaterial goods. There are plenty of ways of earning money with immaterial goods even without a monopoly, for example: being the first on the market, selling services or derivative trading (if you invent something, buy options to your competitors’ shares and than make an announcement). Arguably, these are more difficult to pull of profitably than a monopoly rent. But that is not a sufficient argument for a monopoly justification. Anyone in any industry can make the claim that without special privileges, it would be more difficult to be profitable. So what? That’s competition. Deal with it or go out of business.

    I understand the need of patent attorneys to defend the patent system. Without it, they would go out of business and have to do something else. So, I’m a bit sympathetic. But it is a big argument leap to say that because of this, the society would be worse off.

    So, let me summarise:
    – monopoly rent is not the only business model for immaterial goods
    – high costs could also be the result of IP and not the cause (increased pressure on input prices from the bottom and decreased pressure from the top)
    – if someone is better off, it does not necessarily mean that the whole society is better off
    – competition is good, suppliers don’t like it but it forces them to behave
    – everyone likes special privileges, that doesn’t make them “necessary” though

    Therefore I find the arguments for IP unsubstantiated. To become persuaded, I would need:
    – hard evidence of net benefit to society
    – transparent and objective evaluation criteria to the former

    I see neither of these.

    Cheers,
    Peter

  • [Avatar for Mike Masnick]
    Mike Masnick

    September 30, 2009 02:24 am“Because I recognize the obvious, that patent term should be set at an appropriate level to provide enough incentive and encouragement to generate maximal activity I am being arbitrary. Do you know anything about economics? Do you know anything about picking the right point on the curve that maximizes revenue based on Price vs. Quantity?”

    As someone who knows quite a bit about economics — especially the economics of IP law, I have to ask: what if the models show that the optimal societal benefit is when patent terms are set at zero? Because there’s a fairly stunning amount of evidence that says just that. I’m not sure why people here keep insisting that the evidence says otherwise, because I’ve read tons of studies on patents and innovation, and never seen any that shows patents lead to more optimal innovation. I’ve seen studies that show that a lack of patents increases the rate of innovation. I’ve seen studies that show that patents distort the nature of innovation. I’ve seen surveys that show how a lack of innovation sped up innovation in certain industries.

    The only thing I’ve seen concerning what patents do is that they distort the market, and drive money into certain endeavors instead of others. But that’s no surprise. Give someone a monopoly and they’ll look to use it. But that doesn’t mean more innovation or optimal output at all.

    Why do you assume that a monopoly leads to more optimal societal output, when pretty much *all* of economics has shown that monopoly rents are inefficient?

  • [Avatar for David Koepsell]
    David Koepsell

    September 30, 2009 02:07 amCowboy:

    The US has a high rate of public funding for science, much higher than many places (except Europe which is now surpassing it in some sectors), which is likely why much of the basic science that produces pharmaceuticals comes from the US. Lately, however, pharma invests inordinate sums in blockbusters that are frankly not life-saving drugs. They do this to get valuable patents, rather than meaningful drugs that could save lives. What’s the last, big blockbuster that actually was medically necessary? I’d love to hear about it. We can defer the costs of investments by eliminating this scramble for patentable blockbusters (like new impotence drugs, baldness cures, or a new pain reliever – aspirin works and it’s been off patent for a long damned time) and pool public resources into the public science from which good drugs (like the polio vaccine that never got patented) came from. To satisfy libertarians, we could make donations to the pool entirely voluntary. I think the experiment isn’t that dangerous, and could potentially save more lives by shifting the focus toward basic science regarding life-saving drugs. Life saving drugs will never be profitable blockbusters because the target market is generally way too small. Of course, pharma justifies their marketing costs and research costs on medically useless blockbusters by claiming they generate the funds they use to investigate actual life saving drugs, but much of that research occurs firstly with public funds in universities, and secondly the costs of the entire process would go down if pharma’s focus wasn’t on the next big impotence drug or anti-depressant.

    David

  • [Avatar for P.M.Lawrence]
    P.M.Lawrence

    September 30, 2009 01:53 amGene Quinn wrote “Edison did not invent the light bulb, he just invented light bulbs that were far superior to the point where his original light bulb is still lit after being continuously lit for decades”.

    This example actually demonstrates the opposite of what he concludes about the value of patents. Edison didn’t even do that, Joseph Swan did. It was just that Edison worked the US patent system to block Swan, after adopting Swan’s developments. With a “proper” patent system, Swan would have gained. With no system in the USA, everybody there would have gained. With no system anywhere, Swan would have manufactured on a trade secret basis and Edison or others would have reverse engineered his product and sold it cheaply to the world. As it was, Edison gained.

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 30, 2009 12:43 amGene:

    Let’s try to start over on a more civil, mutually respectful basis. I will assume your views are sincere. It’s just that they seem not well developed to me, and to rely on too many hasty or false assumptions or on nonrigorous reasoning. But who knows–maybe you’re right. So let me try to respond to your points, in a spirit of open inqiry:

    “Obviously, I was not trying to prove patents are justified by asking why someone would hire a patent attorney that thinks 0 years of term is appropriate. It is disingenuous of you to suggest that, you know it, I know it and everyone reading knows it. What exactly do you hope to prove by continuing to compare apples with elephants?”

    I am not being disingenuous. I am pointing out that this question is irrelevant. … are you simply curious? I mean, let’s say you are right: I make a bad patent lawyer because I don’t have the right view on politics. Okay, … so what? Or were you just making an offhand comment, or wondering out loud? I am genuinely curious. Not accusing you of anything. You seem to imply above that the fact (if it is that) that there is some inconsistency between “being” a patent lawyer and “believing” patent law is unjustified, is not after all relevant to whether patent law is justified. If that is your view, then I suppose we both agree that my own possible hypocrisy is not actually relevant.

    “Patents are justified because of how they encourage innovation, enable investment, build industries that create jobs and otherwise create a disclosure system that tolerates time limited rights in exchange for information.”

    Okay–but let me ask you, how do you know patents encourage innovation? I’m serious–how do you know? Even you said 20 years is too long–presumably this means you think the benefits gathered from a 20 year term don’t justify the costs of the patent system… but a shorter term, say 5 years, would. How do you know this? I don’t know it. No patent attorney I know, knows it, as far as I can see. How do you?

    And how do you know that patent law is justified just because it encourages innovation? I’m serious–what is your theory of law, rights, justice, that tells you this? I mean in such a system, let’s say there is overall innovation spurred on the patent law, and overall wealth created–the benefits outweigh the costs. But let’s say one cost of the patent system is that some guy who slaved away for years creating a new device, sunk his life savings into it, independently invented it–let’s say he gets shut down by another guy who filed a patent on the same idea–his life work ruined. This is clearly unjust. Why is such a law justified, just because it encourages innovation? Tell me why you think it is. It apparently seems obvious to you. It’s not to me.

    “I am not telling you anything you don’t already know, but for some reason you choose to ignore it, which puzzles me greatly.”

    I do realize the reasons the state and the patent bar and companies that benefit from the patent monopoly give for such laws. But I do not agree with them. So I do not agree with you that the patent system encourages innovation, nor that it would be justified even if it did. So what exactly am I ignoring?

    “Let me ask you this: Why do you help clients obtain patents when you seem to be of the position that they are immoral, or at least unjustified?”

    The state institution of granting patent monopolies to supplicants is what is immoral. The state gives you a license to use its courts to harm innocent people. What is wrong is to use this license to harm innocent people. It is similar to using a gun to shoot an innocent person. But just as it is permissible to use a gun in defense, it is permissible to use a patent in a countersuit. why? Because it is not aimed at an innocent victim then: it is aimed at someone using the state to aggress against me.

    “You railed against me in your post, towing the party line, etc. Everyone who knows me knows that is crap. I tow my own line, period. But it seems that you are a sell-out. You want 0 term patents, yet you are a patent attorney.”

    Gene, I do not mean any insult. The argument you are giving is the standard one courts repeat and congressmen and that we are taught in law school. It’s a line I disagree with. I think there is no foundation for it. That’s why I’m asking you above to explain why you believe these things to be true. What is your evidence or argument for it? (And BTW it’s toe, not tow.)

    ““I know enough about economics to know that people who talk in these terms do not.”
    “Do you realize that is not an answer? You do realize that is not substantive, right? I made a substantive point,”

    Gene, I didn’t answer you because I didnt think you were asking a sincere question. I thought you were just trying to accuse me of being economically illiterate. But let me wipe such uncharitable assumptions from my mind, and try again: You wrote, “Do you know anything about economics?” Well, yes. My writings are informed by Austrian economics, the radically free market, private property school of economics best represented by economist Ludwig von Mises; I am a Senior Fellow of the Ludwig von Mises Institute HTTP://WWW.MISES.ORG. My monograph Against Intellectual Property won the Mises Institute’s O.P. Alford prize and is imbued with Austrian economic reasoning and insights.

    Austrian economics is individualist and maintains that value is subjective, ordinal not cardinal, and not interpersonally comparable. This is just one reason your utilitarian approach is flawed, as I elaborate at length in my monograph Against Intellectual Property, which is at my site. It also treats the social sciences — the study of human action, teleological behavior — differently than the natural sciences and the study of causal laws. It realizes that scientism has corrupted most of modern economics and that it goes off track when it apes the methods of the natural sciences and speaks in terms of “picking the right point on the curve that maximizes revenue based on Price vs. Quantity”–which is why I derided this comment of yours as un-economic. I meant no offense; my apologies for being too blunt or brusque. BUt you can see that this comment was anchored in a certain view of economics.

    Coming back to your comments about economics–you seem to think that if one understands economics, it is obvious why patent law is justified. (Am I incorrect in this assumption?) The problem is, as I pointed out in my links above, that study after study, based on standard economic paradigms and assumptions, does not conclude what you do. I’d sincerely be curious to know why you disagree with all these economic studies, and how you know that the patent system is indeed justified.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 29, 2009 09:00 pmStephan-

    I will point out only one thing with respect to your long comment above. You say:

    “I know enough about economics to know that people who talk in these terms do not.”

    Do you realize that is not an answer? You do realize that is not substantive, right? I made a substantive point, which everyone who knows economics to be fundamentally true. I mad a comparison to patent term using this universal truth, and all you can come up with is this? Why is it that you never answer any questions, never provide any facts and simply think that a non sequitur will somehow act as proof?

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 29, 2009 08:55 pmStephan-

    Obviously, I was not trying to prove patents are justified by asking why someone would hire a patent attorney that thinks 0 years of term is appropriate. It is disingenuous of you to suggest that, you know it, I know it and everyone reading knows it. What exactly do you hope to prove by continuing to compare apples with elephants? Patents are justified because of how they encourage innovation, enable investment, build industries that create jobs and otherwise create a disclosure system that tolerates time limited rights in exchange for information. I am not telling you anything you don’t already know, but for some reason you choose to ignore it, which puzzles me greatly.

    Let me ask you this: Why do you help clients obtain patents when you seem to be of the position that they are immoral, or at least unjustified? You railed against me in your post, towing the party line, etc. Everyone who knows me knows that is crap. I tow my own line, period. But it seems that you are a sell-out. You want 0 term patents, yet you are a patent attorney.

    In terms of the copyright image, that is used with permission. If you have other information that suggests it is not being used with permission let me know and I would be happy to review the terms of my permission and investigate whether the rights I believe I have are superseded by another who is actually the owner of the rights.

    -Gene

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 29, 2009 07:31 pmGene, another question: what is the possible relevance of your view that “why would someone hire an anti-IP patent attorney”? Let’s say they shouldn’t. So what? How does this prove patents are justified? Isn’t this off-topic?

    Another question: are you violating any copyright by your use of that little image HTTP://IPWATCHDOG.COM/IMAGES/CONFUSED.GIF in the beginning of your post? If you respect IP, be careful! 🙂

  • [Avatar for anon]
    anon

    September 29, 2009 06:19 pm“OK your premise is that sombody among the rest of us would have thought of it sooner or later, and that may be true.”

    That’s really only half of what is required for the patent. The key is to share it, in an understandable way. I’ve thought of lots of awesome ideas, but I certainly haven’t followed through with all of them. To get the patent you not only have to be the one (of possibly many) to have thought of it, but you also have to reduce to practice, and then explain your work so others can reproduce it. The monopoly may be what gets the funding, but it’s the teaching part that actually makes the system beneficial to the public at large.

    The simple fact is that without patents, the only backup most inventors would have is to keep their invention secret. Many inventions couldn’t do this and be sold on the market – the reverse engineering is painfully obvious once you have your hands on one (like say, my clicky top pen). The ones which aren’t so easily reverse engineered would create a totally redundant scientific and engineering community, devoted to wasting their time reproducing things that were already invented. Aside from the exhorbitant cost (every competitive company paying a sizable workforce of reverse engineers, instead of what is probably a relatively modest sum for patent prosecution/litigation), it’s a giant waste of resources. Intel makes a fancy new graphics processor, and now AMD, IBM, Via, ATI, nVidia, and so on are going to have to reverse engineer it to keep up. Redundant work is not progress.

    Before becoming educated on the subject, I too had many doubts about the benefit of a patent system, but you don’t need to consider numbers to realize that there’s a huge public good incentive behind the patent system. That said, there’s still plenty of room for improvement in various aspects of the implementation, but that doesn’t mean that the system as a whole is inherently flawed.

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 29, 2009 06:16 pmGene:

    I can reply in more detail later or we can discuss later, but let me have brief replies for now:

    “I read your response, which is terribly short on facts, but that is par for the course in the debate.”

    Gene, you can see from my site I have written a great deal on this. I provided plenty of facts, e.g. in the post collecting the results of dozens of studies on this topics. Your emphasis on “facts” seeks to employ the empiristi-scientistic flawed method of using the methods appropriate to the natural sciences, for a discussion of norms. See HTTP://WWW.STEPHANKINSELLA.COM/TAG/ENGINEERS/

    “you chose to ignore facts, ignore reality and the facts and my analysis of the facts as me being a puppet for some broader government propoganda machine.”

    What facts did I ignore? As for propaganda–it is true the state and the law schools propagandize us with the pro-IP line. It is true patent attorneys have a financial interest in keeping IP alive. Whether you are immune to this, I cannot say.

    “I did not say you should be punished,”

    Okay. I thought you were implying I should not be hired, and I am not a good patent attorney.

    ” and I don’t expect anyone to tow any particular line.”

    It’s toe. I spelled it right in my post title on purpose. 🙂

    “While you say what I wrote is disingenuous, I did not mischaracterize your position,”

    Fine. I do not mean to imply you were ill-motived. But I do think it’s disingenuous to imply that people who are anti-IP are anit-technology and innovation. It’s a perhaps unwitting attempt to short-circuit the debate and to sneak in your assumption. the debate is over whether IP *is* pro-innovation. I think it harms innovation–in fact I think every single thing the state does harms innovation, because it robs us and makes us poorer, and that leads to less innovation and free market activity.

    “What I did say is I can’t understand why any individual or company would hire a patent attorney with your views.”

    I frankly find this baffling. My employer doesn’t care what my policy views are, any more than they care what my gender, religion, or sexual orientation is. In fact my dislike of the patent system and revulsion at its use by patentees to harm innocent companies drives me to fight hard to defend them, and to obtain patents they can use defensively. I can assure you I would not hesitte to pull out all the stops to defend my client. They know this. I think it is unfortunate that I have to be paid to obtain patents so that they are somewhat defended from patent suits. But given the system, it’s necessary. If I were a tax defender I would think it unfortuante that the company has to waste money paying me a salary to defend itself from tax evasion charges-since all taxes should be abolished and my job should made unnecessary. If I were an oncologist I would hope cancer would be defeated and all oncologist jobs wither away. If I were a criminal defense attorney trying to keep some marijuana smoker or cocaine dealer from being jailed by the evil state, I would hope that the drug laws would be repealed so innocent people would not have to waste money on defense attorneys.

    “I stand by that, and it is my opinion that anyone who hires a patent attorney that thinks patents are the problem and inventions should be free and not protected is getting the representation they deserve.”

    I never said inventions should be free. I never said they should not be protected. You can do whatever you want with your own knowledge or property. If you seek to make it public, without NDAs or other mechanisms, then you cant expect others not to learn what you know. But I find your comment utterly bizarre. I have never in my life had a client care whether I think the patent law should exist. They want someone who can obtain patents for them and give them advice about the existing law. Why do I need to “believe” the law is just, in order to do this? Do you honestly think most patent attys do this out of passion? No, they do it to make a living, and I guarandamtee you 99% of them would quit tomorrow if they won the lottery.

    “In your article you say: “I oppose patents because they undercut private property rights, not because they are private property rights.” This shows an acute lack of understanding of property rights.”

    Gene. I suggest you peruse my libertarian publications before making such a claim. E.g HTTP://WWW.STEPHANKINSELLA.COM/PUBLICATIONS/#RIGHTSTH and HTTP://WWW.STEPHANKINSELLA.COM/PUBLICATIONS/#BOOKS

    “It also demonstrates that you believe there is some inherent right in people to ignore intangible rights”

    Gene: do you realize this is known as the fallacy of question-beggin? You are assuming there are “intangible rights.” But this is what our debate is over.

    “You are certainly entitled to your opinion, but why would anyone who has an invention and needs rights want someone representing them who doesn’t believe?”

    Because I believe they need patents to defend themselves.

    American Cowboy:

    “How about the ongoing experiment involving pharmaceuticals? In most countries of the world, patents on pharmaceuticals are either prohibited, closely circumscribed or subject to compulsory licenses, but that is not the case in the United States. Is it merely a coincidence that most pharmaceutical invention takes place here, even in the face of the barriers to entry imposed by the FDA?”

    Read the Boldrin and Levine book if you wnat your eyes opened on this. I respectfully submit you don’t know what you are talking about (very surprising in a nym, I know…)
    Gene:

    “you really don’t understand why an “arbitrary” term is needed. Do you understand nothing about free riders? You want a free market, and what that means is everyone is free to copy, take and be lazy.”

    Gene, do you really think “lazy” is an argument for what property rights exist? What does this have to do with anything?

    I approach this systmatically. First I ask what is the function of law, and what rights do we have. Etc. If you approach it systematically, as I have (HTTP://MISES.ORG/STORY/3660 HTTP://WWW.MISES.ORG/STORY/2291 HTTP://MISES.ORG/STORY/3682 ) you will see that the state granting artificial monopolies to people cannot be justified and indeed does undercut property rights. I suggest you read a bit of what I’ve written to understnad my position before jumping in with such off-base criticisms.

    “No one with ambition would ever invest only to be scooped by a copyist.”

    You don’t mean that as a serious argument for IP, do you? how does this nonrigorous, controversial, vague observation demonstrate that there are rights in inventions?

    ” That is why socialism and communism fails everywhere it has been tried. If you take away incentive you take away ambition and that least to lethargy.”

    And… law is about giving incentives? Is that your theory of property rights?

    “Because I recognize the obvious, that patent term should be set at an appropriate level to provide enough incentive and encouragement to generate maximal activity I am being arbitrary.”

    What is it then? 7 years? 5? How will we know when it’s a maximum? How do you konw it’s not 6 months? 1 month? How do you know the state can be trusted to ever implement this optimal system?

    How do you know the CURRENT system (which you yourself thing is nonoptimal) is better than NO system?

    “Do you know anything about economics?”

    I’m an Austrian, yes.

    “Do you know anything about picking the right point on the curve that maximizes revenue based on Price vs. Quantity?”

    I know enough about economics to know that people who talk in these terms do not.

    “A patent attorney that thinks 0 years of term is the appropriate solution, now that is someone that any inventor or company should hire!”

    Again: they hire me to obtain patents and give them advice about the system–not for my policy views!

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 29, 2009 05:50 pmGene:

    I’ll reply in more detail later (or maybe we will have a different discussion format as we are privately talking about), but a minor point: I note you tout your LL.M. on , BUT YOU MAKE THE COMMON MISTAKE OF WRITING “L.L.M.” IT’S LL.M., BECAUSE IT MEANS “MASTER OF LAWS,” WHERE L MEANS “LAW,” AND LL MEANS “LAWS” (PLURAL). SORT OF HOW § MEANS SECTION BUT §§ MEANS SECTIONS. 🙂

  • [Avatar for American Cowboy]
    American Cowboy

    September 29, 2009 05:24 pmOn this patent term stuff, remember, Stephan, that we are talking about subject matter that the world never knew until the inventor came up with it and indeed subject matter that workers in the field did not consider obvious to them. What a patent does is say that, in addition to 14 billion years since the big bang that you could not make, use or sell the invention at all, the patent tacks on another 20 years during which you cannot make use or sell the invention without the OK of the person who brought it into being.

    OK your premise is that sombody among the rest of us would have thought of it sooner or later, and that may be true. But if sooner or later turns out to be, say, 22 years, then the world is better off with the inventor’s work and his protection for 20 years. During the 20 years of patent term the invention still be discussed, analyzed, and debated, things that would be impossible during the 22 year wait of the hypothetical.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 29, 2009 05:14 pmKinsella-

    WOW! All or nothing, huh? And you really don’t understand why an “arbitrary” term is needed. Do you understand nothing about free riders? You want a free market, and what that means is everyone is free to copy, take and be lazy. No one with ambition would ever invest only to be scooped by a copyist. That is why socialism and communism fails everywhere it has been tried. If you take away incentive you take away ambition and that least to lethargy.

    Because I recognize the obvious, that patent term should be set at an appropriate level to provide enough incentive and encouragement to generate maximal activity I am being arbitrary. Do you know anything about economics? Do you know anything about picking the right point on the curve that maximizes revenue based on Price vs. Quantity? The same thing obviously applies to picking the right patent term, and if you choose not to acknowledge that it is because you have an agenda or simply don’t get it. I sense you are a smart guy, and you get it, you are just being obtuse to forward your agenda.

    A patent attorney that thinks 0 years of term is the appropriate solution, now that is someone that any inventor or company should hire!

    -Gene

  • [Avatar for American Cowboy]
    American Cowboy

    September 29, 2009 05:13 pmHow about the ongoing experiment involving pharmaceuticals? In most countries of the world, patents on pharmaceuticals are either prohibited, closely circumscribed or subject to compulsory licenses, but that is not the case in the United States. Is it merely a coincidence that most pharmaceutical invention takes place here, even in the face of the barriers to entry imposed by the FDA? Is it merely a coincidence that you see so many Indian companies producing only generics? They don’t innovate because the Indian patent laws are about as hostile to pharma as anywhere in the world. US-developed pharma spreads to the world to cure disease and prolong life.

    If the US patent system did not protect pharma, many lives worldwide would be shortened and burdened with disease, in comparison with what American inventors, protected by the US patent system, have been able to achieve. Just think how much more progress could be made if scientists in the other countries had the incentive to invent, too.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 29, 2009 05:03 pmStephan-

    Thanks for your comment. I read your response, which is terribly short on facts, but that is par for the course in the debate. Rather than address any of the points I raised you seemed to take the tried and true path of just questioning the question and questioning the one who asked the question. So much for debate. If you care to answer the points I raise rather than ridiculing them and acting as if they are not valid or some “party line” that would be GREAT! Please let me know. I would love to engage in a debate, but you prove my point that there is little hope for a debate when you chose to ignore facts, ignore reality and the facts and my analysis of the facts as me being a puppet for some broader government propoganda machine.

    I did not say you should be punished, and I don’t expect anyone to tow any particular line. While you say what I wrote is disingenuous, I did not mischaracterize your position, like you did with what I wrote. What I did say is I can’t understand why any individual or company would hire a patent attorney with your views. I stand by that, and it is my opinion that anyone who hires a patent attorney that thinks patents are the problem and inventions should be free and not protected is getting the representation they deserve.

    In your article you say: “I oppose patents because they undercut private property rights, not because they are private property rights.” This shows an acute lack of understanding of property rights. It also demonstrates that you believe there is some inherent right in people to ignore intangible rights because if they have to respect them they are somehow giving up personal rights. You are certainly entitled to your opinion, but why would anyone who has an invention and needs rights want someone representing them who doesn’t believe? Would anyone want a surgeon operating on them who doesn’t believe in modern medicine and instead openly questions whether invasive procedures are good in general?

    I knew I won this round of debate when I read this: “But think about it: would you hire only oncologists who were pro-cancer?” Really! Is that the best you can do? Yeah, I was suggesting that hiring a patent attorney who thinks patents are immoral is like hiring an oncologist who doesn’t think cancer is wonderful. Get a grip man. But this is to be expected. Just another typical, absurd debating trick pulled by those who cannot (or won’t) argue the facts. But diverting attention with such a ludicrous statement? That smacks of desperation.

    -Gene

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 29, 2009 04:54 pmQuinn: “It would be a dangerous experiment to undertake, and if you are wrong and I am right the consequences would be enormously negative. Is there any other way to test what you say?”

    The experiment is under way now. If you are wrong it is costing billions every year.

    “I would love to engage in a debate about whether patent protection is to long, because in many respects it clearly is. Having 20 years after filing for software makes no sense, and when the investment necessary is enormous and there is an FDA process the resulting exclusivity in the market may not be enough.”

    If 20 yeras is too long, what is the optimal term? And how do you know this? In my view, any term you choose other than 0 (no patents), or in perpetuity (like other property–if inventions are actual property why does title to them expire?) is utterly arbitrary. A perpetual term is clearly insane, however. So the only choice left is the obvious one: implement freedom; abolish state privilege and artificial monopoly grants; let people compete on the free market. Easy.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 29, 2009 04:43 pmDavid-

    I understand your beliefs, and I respect them, I really do. I think you are wrong, but allow me to state for the record clearly that I appreciate you always engaging in fair debate.

    It would be a dangerous experiment to undertake, and if you are wrong and I am right the consequences would be enormously negative. Is there any other way to test what you say?

    I would love to engage in a debate about whether patent protection is to long, because in many respects it clearly is. Having 20 years after filing for software makes no sense, and when the investment necessary is enormous and there is an FDA process the resulting exclusivity in the market may not be enough.

    -Gene

  • [Avatar for Stephan Kinsella]
    Stephan Kinsella

    September 29, 2009 04:12 pmI replied in detail here: HTTP://WWW.STEPHANKINSELLA.COM/2009/09/29/PATENT-LAWYERS-WHO-DONT-TOE-THE-LINE-SHOULD-BE-PUNISHED/

  • [Avatar for David Koepsell]
    David Koepsell

    September 29, 2009 03:28 pmRight, Gene, I see you believe firmly that the correlation is due to causation but the only way to truly test that, since every example you have given is unidirectional, is to reverse one trend and see if the other follows. That’s the only scientifically valid way to test it. Meanwhile, we have our beliefs.

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 29, 2009 02:32 pmDavid-

    I think there is plenty of evidence and not just correlation. I will have to do some research into it, but I think it can rather easily be proved that when a country moves from no intellectual property rights to a regime that offers intellectual property rights, and then again from a modest regime to a strong regime, that is exceptionally good for the economy, creates jobs, causes investment funds to flow into the country and the country then embarks on an innovative path. So there really is plenty of places to look. Look at all those countries that had nothing, recognized rights and then grew their own innovation culture. I think you might be able to look at China and see that development. I know you can look at US history and see that development, and there are likely scores of developing nations with the same story.

    -Gene

  • [Avatar for David Koepsell]
    David Koepsell

    September 29, 2009 11:41 amDear Dale and Gene,

    I asked you not to confuse correlation with causation. What you cannot prove, nor can anyone disprove, is that the rates of innovation in strong-patent regimes would have been different without those regimes. There are a nearly infinite number of other potential sources of causation, but it is you religious belief in the patent system that causes you to view the system as causal. Perhaps patents are likely candidates for causing innovation, there may be good reason to believe that they cause innovation, but perhaps not. Maybe it’s coincidental. In science, we demand experiment to prove something, so I suggest an experiment: let’s do away with patents entirely for a couple decades and see how the rate of innovation in the US works in its absence. That way we might better weed out potential causal factors that we hadn’t contemplated before. Perhaps geography is at the root, or something about US culture, or maybe it’s the influx of highly skilled immigrants in knowledge industries. Who knows? My modest proposal to experiment might very well confirm your hypothesis, but for now, there is simply no evidence that patents are necessary for rapid innovation. To prove my point, I’d need to conduct this experiment, and I’m willing to take up that burden. 🙂

    best,
    David

  • [Avatar for Gene Quinn]
    Gene Quinn

    September 29, 2009 11:22 amDavid-

    I would love to engage in a debate with anyone who is up for it. In my experience those who do not appreciate the patent system choose to ignore the fact that taking even a simple kitchen gadget from idea to market can easily cost $500,000, and we all know that pharmaceuticals cost easily upwards of $500 million. These facts are simply ignored and the argument is made that innovation will happen even without patents. That is not true, and the economics prove it. I am happy to have a debate, but how about we start with funding for inventions and innovations when there is no expectation of return on investment. If I spend $500K and others can copy me and not have to spend that amount in development then they can under sell me and will, so I invent for the betterment of society and to my own bankruptcy detriment.

    I hope all is well.

    -Gene

  • [Avatar for Dale B. Halling]
    Dale B. Halling

    September 29, 2009 11:00 amActually, David there is extensive evidence that patents increase the rate of innovation. Those countries with the strongest patent laws have the fastest rates of innovation and diffusion of innovation. Those countries with weak or non-existent patent laws have the weakest patent laws. Before patent laws became widespread in the western world, the rate of innovation was slow enough that the per capita income of the west had not changed in centuries. Note that many of the other conditions of a free market, such as low taxes, property rights, etc existed for centuries before per capita income started to increase in Europe. If you believe this is just correlation, the burden is on you to prove it since all the evidence is against you.

  • [Avatar for David Koepsell]
    David Koepsell

    September 29, 2009 10:03 amI am curious, Gene, what is the “evidence to the contrary” that innovation would somehow not occur at the same rate in the absence of a patent system? And let’s not confuse correlation with causation in the process, ok? I think there is a lack of evidence either for or against the following propositions: innovation would occur more/less quickly absent a patent system.

    And, I’d take issue with your statement “there’s simply no talking” with people who oppose patents. I think you and I have had some great discussions, although neither of us shifted our opinions. Absent evidence on either side, both of us simply believe we are right, as a matter of nearly religious belief. I would love to see a real experiment in which patents are abolished, and we could get evidence for whether they encourage or inhibit innovation. Absent such an experiment, we are left with our (more or less) religious convictions about the matter.

    best,
    David

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  • steven September 30, 2009, 7:34 am

    I’m a tax CPA who would like to see taxes abolished. I look on my role as that of protecting my clients (and myself) by helping them to navigate through the tax laws and minimize the damage these laws do to their lives, as well as to advise clients about the possible consequences of non-compliance. But I would never hesitate to tell anyone what I think about taxes, including the times when I go to these ethics seminars and some idiot starts talking about “paying your fair share.”

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