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
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:
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.
[Comment at 09/29/2009 02:03 PM by Crosbie Fitch]
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.
[Comment at 09/29/2009 02:46 PM by CT]
Quinn responds by saying “quit reading studies”.Laughable.
[Comment at 10/01/2009 03:52 PM by Gilgameshsoul]
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.
[Comment at 10/01/2009 05:55 PM by Bill Stepp]
The masses listen to people like him. Their propaganda is unstoppable if they have no audible opposition.
[Comment at 10/01/2009 11:12 PM by Samuel Hora]
Tow the line not toe the line
[Comment at 10/05/2009 05:14 AM by Anonymous]
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.
[Comment at 11/24/2013 10:48 AM by SpaceCorp Technologies]
Mises blog archived comments:
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.
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.
What does this,
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.
seems quite confused. In a free society, there won’t be a monopoly patent system.
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.
butte, trusts tend to break down because the companies constantly salivate at the money they could make by reneging on the agreement.
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?
randians just aren’t open to proselytizing. rogue ip attorneys should turn their direct their efforts at winning over “real” people.
kinsella used as a “propaganda tool by anti-patents folks”? yeah, that sounds in character!
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.
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…
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.
” 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.
“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.
“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.
gil, how can there ever be “ongoing correlation”? it always refers to a past relationship.
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.
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.
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.
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?
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.
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.
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?
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?
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.
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?
“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.
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.
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?
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?
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.
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.
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?
” 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.
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.
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.
“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!
@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!
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.
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.
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.
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.
” 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.
” 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.
And Liberty also means I have the right not to sell you my invention unless you agree not to reproduce or reverse engineer it.
And if you try to reproduce or reverse engineer it, I can sue you for fraud in the Utopian Private Court System.
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”.
Wow Bala! Thank your for your very sound arguments!
” 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.
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.
“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.
rarely do people change positions once heated words have been exchanged over strongly-held views. all credit to you.
“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).