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Courtesy of Andrew Torrance, mentioned in his 2011 Open Science Summit talk,1 a quote from this book: Patents in the Knowledge-Based Economy, Cohen & Merrill, eds. (2003) (Google books):

There are theoretical as well as empirical reasons to question whether patent rights advance innovation in a substantial way in most industries. …The literature on the impact of patents on innovation must be considered emergent. One reason is that the effect of patent policy has many dimensions … and these continue to challenge scholars both theoretically and empirically.

Discussed by Torrance here. See also Yet Another Study Finds Patents Do Not Encourage Innovation; and Torrance and Tominlson, PATENTS AND THE REGRESS OF USEFUL ARTS.

In other words, people who say patents encourage innovation do not know what they are talking about and have no clear evidence to back it up.

This reminds of similar conclusions and comments by other researchers, as discussed here:

A hundred and fifty years after the first US patent law and the Founders’ “hunch” that copyrights and patents might “promote the Progress of Science and useful Arts2

As economist Fritz Machlup concluded, in an exhaustive 1958 study prepared for the U.S. Senate Subcommittee On Patents, Trademarks & Copyrights:

No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.” ((Fritz Machlup, An Economic Review of the Patent System 79-80 (1958), c4sif.org/resources; Fritz Machlup, An Economic Review of the Patent System 79-80 (1958); see also my post The Economist on the American Patent System. ))



And the empirical case for patents has not been shored up at all in the last fifty years. As George Priest wrote in 1986:

[I]n the current state of knowledge, economists know almost nothing about the effect on social welfare of the patent system or of other systems of intellectual property.3

Similar comments are echoed by other researchers. François Lévêque and Yann Ménière, for example, of the Ecole des mines de Paris (an engineering university), observed in 2004:

The abolition or preservation of intellectual property protection is … not just a purely theoretical question. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determine whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup’s day [1950s].4

More recently, Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen conclude that on average, the patent system discourages innovation. As they write: “it seems unlikely that patents today are an effective policy instrument to encourage innovation overall” (p. 216). To the contrary, it seems clear that nowadays “patents place a drag on innovation” (p. 146). In short, “the patent system fails on its own terms” (p. 145).5

And in a recent study, economists Michele Boldrin and David Levine, authors of Against Intellectual Monopoly, conclude:

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity. This is at the root of the “patent puzzle”: in spite of the [enormous] increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R&D expenditurein addition to the discussion in this paper, see Lerner [2009] and literature therein. As we shall see, there is strong evidence, instead, that patents have many negative consequences.6

See also Legal Scholars: Thumbs Down on Patent and CopyrightThe Overwhelming Empirical Case Against Patent and Copyright.

  1. See KOL101 | The Future (the End?) of Intellectual Property (Open Science Summit, 2011) . []
  2. U.S. Const., Art. I, Sec. 8, Cl. 8), there was still no evidence to back up this assumption. (( Eric E. Johnson, “Intellectual Property’s Great Fallacy” (2011): “The monopolies now understood as copyrights and patents were originally created by royal decree, bestowed as a form of favoritism and control. As the power of the monarchy dwindled, these chartered monopolies were reformed, and essentially by default, they wound up in the hands of authors and inventors.” []
  3. George Priest, “What Economists Can Tell Lawyers About Intellectual Property,” 8 Res. L. & Econ. 19 (1986). []
  4. François Lévêque & Yann Ménière, The Economics of Patents and Copyrights 102 (2004). []
  5. James Bessen & Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (2008, excerpts available at researchoninnovation.org/dopatentswork/). []
  6. Michele Boldrin & David K. Levine, “The Case Against Patents”  (June 29, 2012 draft; available at http://levine.sscnet.ucla.edu). []

How can you be an anti-IP patent attorney?

I started practicing law in 1992, and patent and intellectual property law about a year later, in 1993, and became a registered patent attorney in 1994. Right around the same time, I also became anti-IP around that same time and started speaking and publishing about my anti-IP views around 1994–95.1

At first, I was cautious about revealing my views, as I thought it might hurt me in my career—with colleagues, bosses, or clients. I also thought that my status as a practicing IP attorney might add extra weight to the credibility of my arguments. I was mostly wrong in both. As for the former, it turns out that in over twenty years of being increasingly outspoken in my opposition to IP, I’ve yet to see any client or employer even notice or care, much less object. In fact my prominence on the political aspects of this issue has led to many situations where inventors or others contact me to ask me to do IP work for them. They know I’m against IP but don’t care; they assume I must know my stuff if I have articulate policy views about it. And some want a libertarian patent attorney, because they are libertarians. The only way it might have negatively affected my career is that I refuse to participate in the aggressive (offensive) enforcement of IP rights. But there are enough non-aggressive specialty niches in IP law that this self-imposed boycott is not a big deal: e.g., patent prosecution and counseling, licensing, trademark prosecution, copyright counseling, patentability opinions, and defensive patent litigation support.

I’ve also never noticed that people give my arguments much extra credence just because I’m a patent attorney. This could be because the field is so arcane and specialized that most laymen do not quite understand what it’s about. It also could be because I have always maintained that patent lawyers who are pro-IP have no special policy wisdom on IP, and that any intelligent person is just as able to form normative and policy views about this matter as the Inside-the-Temple “experts”. And I have always studiously tried not to “talk down” to laymen, or to “baffle with bullshit” by rattling off the minutae of legal details just to cow them or shut them up. I think my expertise has helped only insofar as it has helped me to be more aware of the way actual IP works so that my arguments are more legally precise, so that people reading my work don’t think I don’t even understand the system I am pontificating about (which often happens when I read the confused arguments of laymen in favor of IP).

In any case, over the years I keep getting a number of questions and criticisms, such as: “How can you be anti-IP if you are a patent attorney?” “Aren’t you a hypocrite?” “No client should hire you if you are anti-IP!” and so on. I’ve replied to these and others on a number of occasions, and when they recur, I usually repeat myself or find one of my previous replies. So here, I am collecting many of them into one location, in chronological order, so I can just send the link to this very post to people next time they ask! The most relevant ones are bolded.

  1. See Letter on Intellectual Property RightsIOS Journal 5, no. 2 (June 1995), pp. 12-13; also Intellectual Property Legitimate? (local copy), Winter 2000, Federalist Society, based on version previously published in Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3; Roderick Long: Bye-Bye for IP. []

Planet Money: The Case Against Patents

Good episode of NPR’s Planet Money, Episode 551: The Cast Against Patents, featuring economists Michele Boldrin and David Levine, authors of Against Intellectual Monopoly and The Case Against Patents, and members of the Advisory Board of C4SIF.  Embedded below. From the shownotes:

Tesla, the electric car company, recently decided to, basically, give up its patents. Anybody who wants to is now free to steal the company’s ideas.

Elon Musk, the company’s CEO said he isn’t really into patents — and, he said, he thinks giving them up is best for everybody.

On today’s show, we take this idea to its logical conclusion. We talk to two guys who say we should get rid of patents altogether. If someone has an idea, anyone else is free to steal it.


What You Need to be Solid on IP

From a Facebook thread, in which I was pinged to explain how Rothbard erred on intellectual property–my comment, edited somewhat:


  • We stand upon the shoulders of giants. Rothbard was such a monumental figure and genius, and did so much for libertarian theory and to advance Misesian Austrian economics. Even so, there are some gaps in his framework, and a couple of missteps. I’d say the gaps include a fully developed rights framework (which he basically admitted in his comments on Hoppe’s argumentation ethics), and his lack of attention to and emphasis on the importance of scarcity to human action and property rights. Hoppe’s own focus on this feature is why Hoppe was able to easily see the truth about IP, without even much reflection, apparently, when it takes others (including me) several years to finally see the IP issue properly.

    Another thing is that most Misesians, somewhat surprisingly, even if they accept praxeology, mostly ignore the “knowledge” part of action, and they analyze only the “scarce means” or “economic goods” aspect–even though in praxeology these two factors of action each have deep significance: in acting, we are guided by knowledge of causal laws, in choosing which scarce means to employ, to achieve our ends. Both knowledge and the scarce means are essential to human action but most Austrians and economists focus on the latter only. Rothbard was no exception to this. If he had drilled down into the knowledge side of praxeology more deeply, perhaps he would have realized more easily that IP is incompatible with property rights: that property rights apply to the scarce means part of action but not to the knowledge/recipe part of human action. Ironically, some people do focus more on knowledge–Hayek, people like George Gilder–but they do so not from a praxeological framework, and therefore, this insight is not as easy to obtain for them. The insights about IP have to come from a combination of (a) praxeological awareness, (b) deep analysis of the nature of and distinction between the roles of knowledge and scarce means in the structure of human action, including (c) extensive analysis into the role of knowledge in guiding human action; (d) a searing focus on the connection between economic scarcity, conflict, cooperation, and ownership-property rights. It also helps to have a (e) Rothbardian-Lockean type understanding of property rights and politics. (f) An awareness of actual legal systems, in a sophisticated sense, helps, too. Hoppe basically had all of these factors to one degree or the other, even if he was a bit light on (b), and not extremely deep on (f), he was deep enough into them due to his foundations (Rothbardian and Misesian and other) and wide reading and frankly systemic genius. That is why he was able to see the answer to the IP issue instantly, in 1988, in response to a random audience question. Rothbard did not go far enough into (b) and (c) and (d) to arrive at the right answer. (I am frankly a bit confused as to why Mises did not. He seemed to have all factors covered sufficiently, except perhaps, for (b) and (e). But the main problem is that he did not turn his attention to IP. Nor did Rothbard.

    Rothbard’s mistake on IP is a bit surprising given his trenchant analysis of defamation law–which is a type of IP law. He did not extent this analysis to other types of IP. (In this, he is similar to Rand, who had somewhat schizophrenic strands in her thought: on the one hand, she recognize we cannot metaphysically create anything; that we rearrange material to make it more useful. This line of thought ought to lead one to recognize that IP is incompatible with normal property rights. But she didn’t.)

    Incidentally, none of this is to criticize Rothbard at all. He could not do everything or be infallible! I am quite confident that had Mises and Rothbard really realized what IP would be come, they would have revisited the issue and had they analyzed it closely, they would have come to the position Hoppe and I hold.
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Pro-IP “Anarchists” and anti-IP Patent Attorneys

Two sets that you would think are exceedingly rare. Over the years I’ve noticed when someone falls into either group. My notes are not comprehensive, to be sure, but here is what I’ve gathered so far.

As for the second category: I collected them previously here: Patent Lawyers Who Oppose Patent Law. They include me, my friend Tony Diehl, and a few others. However, to be honest, of everyone I’ve listed—as far as I know only Tony and I qualify as as (a) being actual practicing, registered patent attorneys who are also (b) completely opposed to the patent system. As far as I know we are the only two people in the whole world who actually understand IP and oppose it completely and on private property grounds. Everyone else either only understands IP incompletely (non-registered patent attorney) or is in favor of “reform” but not abolition or is against IP on leftish grounds. Well, two out of 7 billion people—that’s a start. I guess. But it’s always shocking to me someone can pose as a radical anti-state libertarian, and then turn around and argue for state-granted monopoly rights. Amazing.

As for the former. It’s always surprising to me when someone who claims to be an anarchist—and a libertarian anarchist, no less—still supports IP…. even though IP is a state-granted monopoly, requires the state, requires legislation, and is utterly incompatible with free markets, libertarian property rights, etc. Prominent examples include:

(I am not even including here non-anarchist and utilitarian libertarians, since so many of them have been horribly wrong on IP, namely Ayn Rand, Jan Helfeld, and … most others.)

Libertarians who were surprisingly good on IP before the Internet era include:

(In the post-1995/Internet era, more libertarians starting paying attention, and getting it mostly right, namely me, Roderick Long, Jeff Tucker, Sheldon Richman, and a few others—collected here.)

And honorable mentions:

For more, see: The Origins of Libertarian IP Abolitionism and The Four Historical Phases of IP Abolitionism.

  1. KOL 038 | Debate with Robert Wenzel on Intellectual Property. []
  2. KOL076 | IP Debate with Chris LeRoux ; Can you own ideas? Chris LeRoux debates Daniel Rothschild. []
  3.  “Locke’s Big Mistake: How the Labor Theory of Property Ruined Economics and Political Theory,” Liberty in the Pines Conference (March 2013) ; []

As discussed on this Facebook thread.

Conversation with a student (this happens pretty frequently). (some formatting has been lost)


“Hi Mr Kinsella,

My name is []. I’m a student journalist from the University of [], Australia. I’m currently researching a story on file sharing, particularly focussing on a proposed anti-piracy code the Australian federal government has recently endorsed. I wanted to get the perspective of those opposed to copyright laws, and, as you are a prominent academic opponent of intellectual property, I was wondering if you would agree to provide some comments regarding the libertarian (and your) position on these issues? I just have a couple of questions about intellectual property and copyright in general that I could send through if you are willing.

As a budding libertarian myself, I’m in sympathy with libertarian critiques intellectual property, which is why I wanted to include your perspective in the piece if possible. I’d really appreciate your contribution.

Hope to hear back from you,

[click to continue…]


Liberty Rejects my 1996 Anti-IP Article

Just came across this old letter from Liberty (and my now-friend Timo Virkkala) rejecting an anti-intellectual property piece I submitted to Liberty in 1996. A brief history: my first anti-IP writing also appeared around 1995.1 Here’s the text of the rejection letter:

June 27, 1996
N. Stephan Kinsella
Suite 3600
1600 Market Street
Philadelphia, PA 19103-4252

Dear Mr. Kinsella:

I am very sorry for taking such a long time to get back to you regarding your proposal for an article on contract theory and intellectual property rights. We’ve been kicking around the idea, and have decided that it is probably not our fare—though interesting.

In reviewing your proposal, I notice that your argument resembles that of Williamson M. Evers “Title Transfer Theory of Contract,” which appeared in JLS early on. Are you familiar with Evers’ argument?

Thanks for thinking of us. I’m glad Wendy McElroy suggested us to you, and I hope you will consider us again.

Timothy Virkkala

Interestingly, in the meantime, IP has become of intense interest among libertarians, and, in 2009 I published “Intellectual Property and Libertarianism” in Liberty.2  As for the Rothbard/Evers contract theory, in 2003 I published “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability” in the Journal of Libertarian Studies 17, no. 2 (Spring 2003), which elaborates and expands on their views.

Update: On Facebook I mentioned “The weird thing was you guys sent me a couple of rejections of other people’s articles — a weird mismatch.” Here is what I meant. See below, from earlier correspondence to Liberty (the Bank of England submission was published; see here):

Monday, March 1, 1993

Timothy Virkkala, Assistant Editor


P.O. Box 1167

Port Townsend, WA 98368

Dear Mr. Virkkala,

In your letter of February 25, 1993, you inform me that my essay, “The Hard-Core Juvenile Defender,” has not been selected for publication in Liberty. However, I did not write nor submit such an article. I did submit, in a letter dated December 18, 1992, an essay entitled “The Perpetual Federal Budget Surplus?”. If I recall, I also submitted some time thereafter a copy of my recent article “Estoppel: A New Justification for Individual Rights,” published in the latest issue of Reason Papers, along with a proposal to write a shorter, more popular version of the article for you. I would appreciate it if you would check your records and inform me of your decision on these two submissions.

Additionally, I would like to propose to you an idea for an article or perhaps for a “Guest Reflection,” which I would be happy to write if you think you would be interested in considering it for publication. The essay would concern the following:

I spent last year in London. On the pound notes, for example the £5 note, is the language: “BANK OF ENGLAND: I promise to pay the bearer on demand the sum of five pounds.” Well, since there is no longer any metal standard, I wondered what this could mean. The note is five pounds; what could it mean to promise to pay the bearer of it five pounds? This promissory note language is a facade, a completely illusory promise. I decided to visit the Bank of England, located in downtown London, in the Financial District, to call their bluff, to make them make good on their promise. What would they do, I wondered—hand me back another five-pound note in exchange for the one I offered?

I made it there, and was stopped at the door by security, and I could not get past the main front desk without having a three-piece suit and “official business.” In other words, the doors of the Bank were not even open to all the holders of notes which promised them that the Bank would give them five pounds “on demand” upon presentation of their “note”. I explained that my note said the Bank would give me five pounds upon demand for my note, and that I was hereby demanding that the Bank fulfill its obligations under the note. The man behind the front desk had little patience and told me that perhaps I’d find some information if I went to the Bank of England Museum around the corner.

So I left and went to the Museum, which is quite nice, actually. I explained to a curator what had happened, and that I was interested in finding out exactly what the language could mean, since obviously it didn’t function as an actual promise to pay me five pounds—they wouldn’t even let me in the door! She went into a back room, and finally dug up an old photocopy, from God knows what source, which attempts to explain the meaning and evolution of the “I promise to pay the bearer” language. I took the pages home, and tried to understand them. Apparently, the Bank is contending now that the language only means, and only ever meant, that the Bank has an obligation to replace old, out-of-circulation pound notes with new, in-circulation ones. Right. That’s what “I promise to pay bearer on demand the sum of five pounds” means.

If you would be interested in this essay idea, please let me know and I will be happy to submit a finalized version, which would contain more elaboration on the nature of money and the “legal tender” language in the U.S., to you for your consideration. If you have any questions or comments, please do not hesitate to call or write.


Friday, May 7, 1993

Timothy Virkkala, Assistant Editor


P.O. Box 1167

Port Townsend, WA 98368


Dear Mr. Virkkala,

I have previously submitted to you several pieces for your consideration for possible publication in Liberty. These include:

A. In a letter dated December 18, 1992, an essay entitled “The Perpetual Federal Budget Surplus?”;

B. a copy of my recent article “Estoppel: A New Justification for Individual Rights,” published in the latest issue of Reason Papers, along with a proposal to write a shorter, more popular version of the article for you

C. in a letter dated March 1, 1993, a proposal for an article concerning my visit to the Bank of England and my attempt to collect on the ten-pound note’s “I promise to pay bearer on demand the sum of ten pounds” language.

I am still awaiting word from you regarding these items. If you recall, we did have a mixup where, after submitting item 1 above, you, in your letter of February 25, 1993, informed me that my essay, “The Hard-Core Juvenile Defender,” had not been selected for publication, although I did not write that article.

I would like to submit some further articles and items for publication in your magazine. They are enclosed with this letter and a description of them is provided below.

1. A poem entitled “Big Enough”;

2. a short story entitled “The Subjectivist’s Lament”; and

3. an article entitled “Freedom vs. Government”, which was published in July 1989 in an obscure underground LSU student newspaper called The Wonderland Times.

  1.  Letter on Intellectual Property RightsIOS Journal 5, no. 2 (June 1995), pp. 12-13 ; see also  My IP OdysseyRoderick Long: Bye-Bye for IPRoderick Long Finally Realizes IP is Unjustified; The Four Historical Phases of IP Abolitionism; and The Origins of Libertarian IP AbolitionismMy IP Odyssey.  []
  2. Vol. 23, no. 11 (Dec. 2009), p. 27;   blog postlocal PDF; Liberty‘s online version; see also “Intellectual Property and Libertarianism,” Mises Daily (Nov. 17, 2009); based on speech at Mises University 2009 (July 30, 2009; audio; video); speech podcast on The Lew Rockwell Show, #131, as The Intellectual Property Racket (Aug. 19, 2009). []

Can you own ideas? Chris LeRoux debates Daniel Rothschild

Amusing “debate” between Daniel Rothschild and perennial pro-IP “libertarian” pest Chris LeRoux (aka Sid “Non Vicious” Leroux, Chris Propertarian, etc. etc.). Rothschild has amazing perseverance trying to penetrate the muddled thinking and confusions and ever-shifting positions of LeRoux, or whatever his name really is.


There may be some others but I can’t recall them offhand—there are a few perennial pro-IP “libertarian” pests, like Shayne Wissler, Silas Barta (aka “Person,” “John Sharp,” “Richard Harding”).


To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.