≡ Menu

Dispatch from the Open Science Summit: Citizen Science, Microfinanced Research, Patent Trolls, and Pharma Prizes

Good post from Reason magazine a year ago, which had a nice yeasty IP argument between me and Koepsell, on one side, and patent shill Dale Halling, on the other.

Citizen Science, Microfinanced Research, Patent Trolls, and Pharma Prizes

A final dispatch from the Open Science Summit.

| August 3, 2010

(Page 2 of 2)

Two years ago, the National Institutes of Health required that all its grantees make their research publicly available 12 months after it appears in a scientific journal. In one of the more clueless comments made at the hearing, one member of Congress worried that providing free access to journals would amount to giving away our country’s intellectual property to foreign competitors. A lobbyist for journal publishers apparently argued that mandating open access would destroy American jobs. The coalition favors the passage of the Federal Research Public Access Act which would extend the NIH policy to 11 other government agencies that fund research and shorten the embargo time from 12 to 6 months. “You can’t build on cutting edge science if you don’t know where the cutting edge is,” quipped Shockey.

Cheap Drugs for Poor People

Nobody, egalitarians and libertarians alike, showed much love for Big Pharma. One of the concerns is that the current model of drug development means that drug companies must focus on developing pharmaceuticals that they can later sell for high prices. High prices mean that poor people can’t get access to life saving treatments. To overcome this problem Aiden Hollis described the Health Impact Fund (HIF) proposal [pdf]. The proposal would offer drug companies a choice between seeking to recoup their investments using high prices as usual or registering their drugs with the HIF, which would require the firm to sell its product worldwide at an administered price near the average cost of production and distribution. The company would be compensated by a stream of payments based on the assessed global health impact of its drug. The HIF would be funded by governments to the tune of about $6 billion annually. James Love of Knowledge Ecology International wants to accomplish much the same thing by offering big prizes to the developers of medicines that aim to treat diseases rife in developing countries such as malaria, TB, and HIV. He would fund his prizes through a one percent tax on pharmaceutical sales which would raise about $4 billion annually in the U.S.

Many of the summiteers are oddly unaware of the role that Food and Drug Administration (FDA) regulation plays in creating high drug prices. For example, a PR consultant for the summit argued that the chief problem is that Big Pharma and Big Finance want to protect their unconscionable profits by crushing the nascent biotech open science movement. Perhaps so, but what summiteers miss is why this particular dysfunctional business ecosystem exists. Three letters: FDA. As annoying as the FDA regulators are to Big Pharma, the truth is that FDA regulation creates a huge barrier to entry for any new competing firm. This means that start-up biotechs have no chance of getting any therapeutic product approved since it takes years and hundreds of millions of dollars to get it past the hypercautious FDA.

A contrast with the IT industry is instructive. With information technology, a company develops a cool product, runs it out the door, and makes billions (or flops quickly). In biotech and pharmaceuticals, a company can’t do that. Developers of new treatments have to run an expensive and time consuming regulatory gauntlet before they can sell a single pill or shot. I suspect that if the information technology industry was regulated by the FDA we would still be using 50-lb. IBM 5100 “portable” computers costing over $80,000 in today’s dollars.

The foregoing is a taste of the smorgasbord of topics offered at the summit. Others included how do academic researchers get credit for open source contributions, how cure entrepreneurs are reshaping the research enterprise to focus on the development of new treatments, how open source biotechnology can enhance biosecurity, and how open source drug discovery can advance innovation. The summit wrapped up this weekend, having made a slight bit of progress toward its stated goal of organizing the various sub-communities of the Open Science Movement into an effective global force for rapid change in science and innovation policy. It’s a start.

Ronald Bailey is Reason’s science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is now available from Prometheus Books.

Page: 12

Reason needs your support. Please donate today!

  • more sharing

Try Reason’s award-winning print edition today! Your first issue is FREE if you are not completely satisfied.

Editor’s Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.

Jason Savage|8.3.10 @ 5:01PM|#

Oh wow, OK this makes a lot of sense dude.


LarryA|8.3.10 @ 5:04PM|#

Why do I keep flashing on villagers coming up the road with torches and farm implements? 😉

C-SPAN|8.3.10 @ 5:08PM|#

You mean Congress?

Virginia|8.3.10 @ 5:07PM|#

Many of the summiteers are oddly unaware of the role that Food and Drug Administration (FDA) regulation plays in creating high drug prices.

did you learn ’em, Ron?

Ron Bailey|8.3.10 @ 5:14PM|#

Just there as a reporter.

Virginia|8.4.10 @ 9:45AM|#

Well, maybe some of them found their way over here and read your follow-up.

“The smarter the journalists are, the better off society is. [For] to a degree, people read the press to inform themselves-and the better the teacher, the better the student body.”

Old Mexican|8.3.10 @ 5:38PM|#

On the more egalitarian side, the summit featured a panel of scholars who really, really hate gene patents.

I really, really hate gene patents.

Whatever one may think about the patentability of genes, the crucial question is, do such patents hurt or help innovation?

Wow – an utilitarian question. So Stephen Kinsella was RIGHT after all. Who woulda thunk it?

By the way, it hurts innovation – see: http://libertariannation.org/a/f31l1.html#3

Old Mexican|8.3.10 @ 5:51PM|#

Numerous studies have so far failed to find that gene patents are a big impediment to either research or innovation.

Wow – ANOTHER utilitarian conclusion.

By the way, from the cited report that purports to show “very little evidence” of the problem:

“For each country surveyed, most respondents—if not all—indicated having experienced some degree of difficulty and adverse effects associated with accessing or disseminating copyrighted materials. Of those effects, delays in conducting one’s research—typically lasting less than one month or more than one month—were among those that were cited by enough respondents to warrant further inquiry into the relationship between access to scholarly literature and the ability to conduct research in a timely manner.”

Old Mexican|8.3.10 @ 5:55PM|#

Bergelt asserted that patent trolls have invested more than $6 billion to aggregate patents for which they lie in wait for the unwary to develop into successful products.

Then again, it is their property . . . Right, Brian Doherty???

Sam Grove|8.4.10 @ 2:08PM|#

Perhaps patents should expire in a short period if not developed into a product and marketed.

Miku|8.4.10 @ 9:31PM|#

Just because the government declares something property does not mean it is justly acquired. Patent trolls patent something they have no intention on doing anything, no adding value to anything, and then use it to freeload wealth out of productive people. It is little better than legal theft.

Don Barche|8.3.10 @ 6:30PM|#

While I concede that there are problems with the Food and Drug Administration (FDA) and its approval process, the comparison of the pharmaceutical industry to the IT industry is demonstrably poor.

The purchase of a useless IT gadget or application is unlikely to affect someone’s health. Whereas the use of various pharmaceuticals can help or harm the user. There is far more at stake with health care. Unverified or under-verified treatments can either harm people directly or distract from effective treatments.

Liam|8.4.10 @ 12:04PM|#

That would be the precautionary principle in action and also missed the point entirely.

The FDA serves three purposes; To ensure that the mortality and side effects of a drug are known, to ensure that the drug treats the conditions it claims to and that the labelling expresses both accurately.

On the last two issues organisations and individuals within those organisations can be held criminally liable for representing a drug irrespective of if the FDA is around or not. Further the best forum to decide if a drug is “good” is the market, particularly in a well connected world where people can instantly report and investigate a particular drug. We do not live in 1910 anymore so people do have the ability to independently establish does something work or not. Finally on this its worth pointing out that in recent years the first “alarm” with regards to problematic drugs (both safety and effectiveness) has often been raised in consumer and medical forums, crowd sourcing is an extremely fast and effective tool for researching drugs.

On the first issue drug companies already have a massive incentive to ensure this takes place, in the form of civil courts. This particular hurdle also causes demonstratable harm both in terms of the cost burden, drug accessibility and how it is applied. Based on drugs released to market last year and the accounts of the pharma companies responsible the average cost to market was $1.7b (both R&D and approvals), of which about $900m was due to regulatory approval.

On accessibility the FDA mandates the size and scope of trials which increases costs, increases time to market and effective freezes out smaller organisations. The situation has got to the point now where small companies simply don’t have the money to go to market, they complete R&D and then look to be acquired which significantly reduces the useful drugs to reach market as often they are bought up to take them off the market. Ultimately the regime which forces them to be quite so proactive with removing competition to their drugs is to blame, that is the FDA.

A great example of this is with the DCA trials running in Canada right now. DCA has shown promise as an effective cancer treatment, and has a well established human safety record stretching back decades. Some private clinics are offering treatment, as significant risk, but the most interesting thing has been the crowd response to it. For regulatory purposes only the clinical trial with a few dozen people will be considered but for everyone else there are the thousands of people taking it off-label who have collectively found the correct dosage and the regimes it needs to be combined with to increase usefulness. The crowd has established how useful it is, how it should be taken and how safe it is in a matter of months rather then the 5 years it would have taken otherwise.

While this data might not be useful for regulatory purposes and has fairly limited non-marketing purposes to pharma it does serve as a useful tool for consumers looking to make a choice which is what the FDA is supposed to be.

Sam Grove|8.4.10 @ 2:12PM|#

Also, drugs that have been approved and are in use in foreign markets must go through the same process (again) before they can be made available in the U.S.

Robert|8.3.10 @ 7:57PM|#

Damn. 2 yrs. ago in my effort to stave off destitution, I found a local plastics fabricator and thought I’d make & sell gel electrophoresis tanks cheap. However, after doing much research on parts and drawing up specs, I concluded there’d be no saleable market for my cheapo product and forgot about it. Maybe I was too conservative.

I’m an office temp for the US Census Bureau currently. I’m also the chief scientist of the Natural Clinical Trials Program, headquartered in the Panama highlands, but we haven’t any clients yet.

Stephan Kinsella|8.3.10 @ 11:12PM|#

Bailey characterizes the anti-IP “faction” as the “more egalitarian” one, as opposed to the more libertarian bloc at the summit. Yet libertarianism is, in my sense, now predominantely anti-IP, and increasingly so (see Dohert’s post Intellectual Property: Dying Among Libertarians? http://reason.com/blog/2010/08…..y-dying-am) and Intellectual Property and Libertarianism.

Stephan Kinsella|8.3.10 @ 11:13PM|#

Further, David Koepsell is lumped in with the egalitarians even though he’s pretty libertarian and his argument is compatible with my libertarian anti-IP argument; I (a libertarian) was interviewed for his gene patent documentary. http://www.stephankinsella.com/?s=koepsell

Stephan Kinsella|8.3.10 @ 11:13PM|#

Bailey writes, “Whatever one may think about the patentability of genes, the crucial question is, do such patents hurt or help innovation?”

That is not actually the crucial question for libertarians who are not wonkish utilitarians. The question is: are the laws just. And they are clearly not. They are state-granted monopoly privileges that transfer rights from existing owners to those favored by the state–by giving patentees and copyright holders the right to veto others’ uses of their own property.

But even if we were to adopt utilitarian standards, the question is still not: does it help or hurt innovation. The question would be: does the value of the marginal innovation stimulated by the law exceed the cost of the IP system (which includes the value of innovation lost)? (See my There’s No Such Thing as a Free Patent.)

And this has not been shown at all. (See Yet Another Study Finds Patents Do Not Encourage Innovation http://blog.mises.org/10217/ye…..novation/.) In fact, contra Bailey, most studies that conclude anything conclude that not only is the patent system a net loss, innovation itself is hampered overall. Bailey says, “Numerous studies have so far failed to find that gene patents are a big impediment to either research or innovation.” Yes: some studies are inconclusive (no wonder given the subjective, non-cardinal, and non-interpersonally comparable nature of value), and do not conclude that they are an impediment. Others do. But advocates of state IP law try to justify it based on these wealth-maximization claims; they bear the burden of proof. They can’t just say there is no proof that the laws are a big impediment. Rather, they must show that they are correct, that such laws give rise to net societal wealth. They do not do so.

David Koepsell|8.4.10 @ 12:08PM|#

Ron knows I’m a libertarian, I don’t think he meant to imply anything. I agree with Kevin, below, that free markets bring equity (as opposed to govt-granted privilege, which doesn’t). Moreover, the utilitarian argument is both weak (as the evidence cited stands for the proposition that gene patents only hurt a little) and contradicted by more recent evidence, see my recent post: http://whoownsyou-drkoepsell.b…..omics.html

Miku|8.4.10 @ 9:35PM|#

IP can be good, and in some uses it is just. The issue with IP is it is very difficult to create a patenting system that justly divvies out IP, and I would contend our system does not.

Kevin Carson|8.3.10 @ 11:51PM|#

IP one example among many in which the cliched dichotomy between “egalitarianism” and “libertarianism” is a false one.

The whole “egalitarian vs. libertarian” dichotomy implicitly assumes something that requires demonstration: that existing levels of inequality result from the market rather than privilege, and that increased liberty would increase inequality rather than reducing it. And IP is clearly a case in which increased liberty — the abolition of state-granted monopoly privileges — would increase equality by eliminating rents on artificial property.

Stephan Kinsella is right that the utilitarian question is a distant second to the moral one. Favoring state policies to structure society in a way that best promotes innovation is not libertarian; it’s the kind of technofascism associated with people like Jerry Pournelle.

André|8.4.10 @ 12:19AM|#

The link to the precautionary principle article is bad.


should be


Douglas Fletcher|8.4.10 @ 7:11AM|#

Ron Bailey’s final dispatch?

My sympathies to his family.

Dale B. Halling|8.4.10 @ 4:11PM|#

David Koepsell has purposely ignored the fact that “isolated” forms of genes do not occur in nature. Nor does nature tell humans how to use those genes. Koepsell has ignored the precedents in this area including patents on vitamin B12, insulin and adrenaline. All of these occur naturally, but not in a purified on isolated form.

Stephan Kinsella’s arguments against intellectual property all hinge on the idea that Locke’s Natural Rights theory of property is incorrect. He replaces Natural Rights with the scarcity theory of property rights. This theory is incorrect historically, logically, and does not have the explanatory power of Natural Rights. Scarcity does not explain how people acquire property morally and legally or how property is distributed. Logically it is incorrect when it states that intellectual property is not subject to scarcity. The creation and dissemination of intellectual property takes real resources, so it is subject to scarcity. For more information see Scarcity – Does it Prove that Intellectual Property is Unjustified? http://hallingblog.com/2009/06/22/scarcity-–-does-it-prove-intellectual-property-is-unjustified/

Kinsella is also wrong about the evidence of the utility of patents. The evidence is overwhelming that patents increase real per capita income. Advances in technology are the only way to increase real per capita income/GDP. Real per capita income did not take off in the world until modern patent systems (private property rights in inventions) were introduced. Japan’s real per capita income does not take off until they copy the US patent system. Countries with weak or non-existent patent systems are the poorest countries in the world, have the fewest inventions, and have limited technology diffusion. Most of the studies suggesting that patents do not encourage technological advance are based on misunderstandings of how the patent system works. All of them ignore the overwhelming evidence outlined above. For more information see Source of Economic Growth http://hallingblog.com/2010/05…..c-growth/.

Ayn Rand stated that “What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values: these laws protect the mind’s contribution in its purest form: the origination of an idea.” Kinsella’s theory is more consistent with Marx’s physical labor theory of value and if followed will have the same disastrous results that Marxist have had throughout the world.

Stephan Kinsella|8.4.10 @ 10:44PM|#

Halling apparently hasn’t learned yet that correlation is not causation. The “argument” that postwar Japan succeeded because it adopted a patent system is ludicrous.

David Koepsell|8.5.10 @ 4:44AM|#

Actually, I took direct aim at the “isolation and purification” charade, I didn’t ignore it at all. Ron knows this because he was there. My slides can be found here: http://www.slideshare.net/Open…..o-owns-you and the video will be available soon on fora.tv

David Koepsell|8.5.10 @ 2:01AM|#

Moreover, Halling did not read my slides, nor hear my talk, in which I directly attack the ridiculous logic and flawed precedent and other patent attorneys rely on. Kinsella’s reply to the tired old refrain about patents and innovation is spot-on. Patents are 100 percent profitable for patent attorneys, whereas they are enormously inefficient for the economy as a whole. Only 1% of patents ever become profitable in a system that otherwise slows progress and drags the economy, costing millions of dollars, and with no real evidence of necessity. http://www.inventionstatistics…..ntors.html it isvessentially a tax on innovation that funnels money to lawyers. Read Boldrin and Levine for historical counter-evidence to Halling’s apocrypha.

Dale B. Halling|8.5.10 @ 11:44AM|#

Isolation and purification is not a charade. It is clear evidence that the genes in Myriad do not occur in isolation in nature. Koepsell’s argument is that purified O2 could also have been patented. (I apologize for not having knowledge that David had covered this point). This not an absurd result, as long as there was utility for purified oxygen. Nor is it absurd that electrolysis would have violated the patent on purified oxygen, assuming it was invented within the lifespan patent on purified oxygen. It is common for later inventions to build upon and violate earlier patents. This is the essence of the debate between Joseph Swan and Thomas Edison over who invented the light bulb. See http://hallingblog.com/2009/07…..ght-bulb/. If an inventor is the first one to isolate a useful substance, then they have provided the world with a new, useful, substance. Every invention is a combination of naturally occurring substances – you cannot create something from nothing. Why should it matter if have combined two or more naturally occurring substances or isolated a naturally occurring substance?

Some of the first patents were on glass. Glass is naturally occurring substance created in nature by lightning. The glass created by lightning is not in a useful form for human beings. Naturally occurring forms of the genes are not in a useful form for human beings. A patent on glass itself (to the inventor) does not violate the property rights of anyone, because no one knew how to create (or isolate) glass before the inventor. If a subsequent inventor creates a new way producing glass, he can obtain a patent on this invention. However, practicing his invention would violate the earlier patent on glass. This is how patents work and if they did not work in this manner it would create a winner takes all situation. The Swan-Edison controversy illustrates this. Swan invented an incandescent light bulb, but it was a low resistance light bulb and therefore not practical. Edison subsequently invented a high resistance incandescent light bulb, which made electric lighting practical. Both Swan and Edison obtained patents. If they had non-overlapping rights then Edison would have made all the profit from the light bulb and Swan would have received no financial reward for his efforts. No doubt, Edison would argue that he invented his incandescent light bulb without any knowledge of Swan’s design. Either way Swan contributed to the knowledge of how to create an incandescent light bulb.

David Koepsell|8.5.10 @ 11:51AM|#

Thank you, Dale, for helping to demonstrate the madness of the patent bar. I can think of no stronger argument that the inmates should stop being left to guard the asylum than your defense of patenting O2.

Dale B. Halling|8.5.10 @ 12:01PM|#

Kinsella’s argument that property rights in inventions do not encourage invention is absurd and contrary to every human experience with property rights.

Koepsell’s statement that “Only 1% of patents ever become profitable in a system that otherwise slows progress and drags the economy, costing millions of dollars, and with no real evidence of necessity” is false. Jacob Schmookler is the only economist to systematically study the issue of the number of patents that are profitable and his research showed that the answer is closer to 50%. The lie that only 1% of patent are profitable is based on licensing data. Most companies who obtain patents are not attempting to license there technology. According to Koepsell most people do not make money from their real property rights either. I obtain nothing from having title to the computer on which I am typing. This does not mean that having title to this computer is meaningless. I doubt Koepsell would argue that we should eliminate real or personal property rights. However, few people make money on just having title to real or personal property rights (except leasing companies) and our system of real and personal property rights cost millions of dollars a year to administer.

Strong patent rights are only found in free, capitalist countries. These countries are the most technologically advanced and have the highest per capita incomes. But like the socialist of old, Kinsella and Koepsell argue that this is just coincidence. They point to hypothetical academic studies while ignoring studies based on real world evidence and the obvious evidence in front of their faces.

David Koepsell|8.5.10 @ 12:12PM|#

“99.8% fail. Only 3,000 patents out of 1.5 million patents are commercially viable. “In truth, odds are stacked astronomically against inventors, and no marketing outfit can change them. ‘There are around 1.5 million patents in effect and in force in this country, and of those, maybe 3,000 are commercially viable,’ [Richard Maulsby, director of the Office of Public Affairs for the U.S. Patent & Trademark Office], says. ‘It’s a very small percentage of patents that actually turn into products that make money for people. On top of all that, to get ripped off for tens of thousands of dollars adds insult to injury.” What percent of patents make money? How many patents become products? Percent of patents commercialized. Percent of patents that get approved. (Richard Maulsby, director of public affairs for the U.S. Patent & Trademark Office, quoted in Karen E. Klein, Smart Answers, “Avoiding the Inventor’s Lament,” Business Week, November 10, 2005)”

of course, every patent application succeeds…. for the patent attorney who makes his fees.

Stephan Kinsella|8.5.10 @ 3:47PM|#

Halling, you are such an amateur arguer and dishonest shill. “Kinsella’s argument that property rights in inventions do not encourage invention is absurd and contrary to every human experience with property rights.”

“experience” doesn’t prove anything by itself–you need a theory.

Let us assume, Halling, that IP laws do encourage innovation. Let’s assume there is X innovation sans IP law (where X is of course not zero, contrary to the hyperbolic lies of dishonest IP amateurs), and with IP law, we still have X innovation, and now Y additional innovation.

Even in this case, if the value of Y is $10B and the cost of the IP system is $20B, then it’s still not worth it. Right?

Now, if you are confident it’s worth it, please tell us what X and Y are so we can figure out the difference. Please just venture a guess.

The studies I’ve seen conclude it’s a NET LOSS. The ones that even try. Why do you dismiss these? Why can’t you produce a single case of clear net gain? If so, tell us what it is, in dollar terms?


And even the worse for your “argument”: the assumption that X stays the same is obviously false. Yes, patent laws might stimulate some new Y of innovation. But it takes away some of the X too–for example there is undeniably SOME R&D that is discouraged now b/c of patents, for example if you know a competitor has a product line locked up b/c of tons of patents then you don’t even try to compete–so you don’t come up with improvements and related innovations you would have. There is no doubt that this happens; patents skew the amount of reseach done in some areas and pushes it to others. So there can be no doub that X is diminished. By how much? I don’t know. Let’s say it’s diminished by Z.

Thus, before patents, we have:
innovation = X.
After patents, we have innovation = (X-Z) + Y.

Now, forget about the costs of the patent system itself. Lawyers’ salaries, inflated product prices, etc. Let’s just say that’s zero. How do you know Y > Z? It must be for the patent system to create MORE innovation. What is Y? What is Z? Please tell me.

In fact, many of the studies pointed to above conclude that innovation ITSELF is driven down by patents. REGARDLESS of the immense costs of the system.

That means we are SPENDING, say, $20B in patent system costs, and for what–for LESS OVERALL INNOVATION. So it’s a double-hit to the economy.

Dale B. Halling|8.5.10 @ 10:47PM|#

Oh Stephan, your ad hominem attacks are Sooo brilliant I have to wear shades.

As for a theory – my theory is Natural Rights. Perhaps you have heard of it. It’s the basis of the Declaration of Independence, common law, and private property rights. Wherever it has been tried it leads to freedom and prosperity and intellectual property rights. Property rights are moral basis of economics. Property rights ensure that parasites, both government and private, cannot live of the effort of other people. As a result, people have an incentive to invest and work hard. Patents are property rights and they provide the assurance that parasites are not able to steal the labor of inventors. This provides the framework in which it makes sense to invest in new technology.

On the other hand, your theory is based on scarcity as the reason for property rights. This theory ignores the value of the human mind and is perfectly consistent with Marx’s physical labor theory of value. It allows parasites to steal the product of other people’s mind. As a result, it destroys the value created by people, particularly inventors, and destroys the incentive to invest in inventions.

Providing a bunch of pseudo math in which none of the variables are measurable is an excellent way to pretend that you have a rational scientific theory. It has worked great as a propaganda technique for the purveyors of nuclear winter and man made global warming. Mathematical formulas for modeling the real world, where none of the variables are measurable is not science it’s fraud.

David Koepsell|8.6.10 @ 2:17AM|#

Dale, as Stephan and I, and even some of our founders argued, there is no natural law basis for IP, and IP violates naturally- grounded rights. If you want a refresher, here is a start: http://www.wikio.com/video/eth…..ll-3274052

Stephan Kinsella|8.6.10 @ 9:30AM|#

Of course there is no natural right to IP and nobody but modern Randroids and Galambosians and patent lawyer know-nothings would make the audacious claim that artificial PATENT AND COPYRIGHT STATUTES decreed by the legislature–mere positive law designed to achieve utilitarian goals–have a “basis” in natural rights:

See http://www.stephankinsella.com…..s-liberty/ : even Thomas Jefferson, the first patent examiner, and a reluctant supporter of the patent/copyright clauses, and no slouch on natural rights (no offense, modern know-nothing patent lawyers) knew this. As he wrote, to question the contention that property rules “which emerged to avert social conflict over tangible objects are also appropriate to intangible things”:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

(As an aside, notice what Jefferson writes immediately before the quoted language above:

It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. [emphasis added]

Stephan Kinsella|8.6.10 @ 9:31AM|#

As I note in n62 of Against IP http://www.stephankinsella.com…..againstip,

Jefferson recognized that because ideas are not scarce, patent and copyright are not natural rights, and can be justified only, if at all, on the utilitarian grounds of promoting useful inventions and literary works (and, even then, they must be created by statute, since they are not natural rights). See Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach,” p. 278 n. 53. Yet this does not mean that Jefferson supported patents, even on utilitarian grounds. Patent historian Edward C. Walterscheid explains that “throughout his life, [Jefferson] retained a healthy skepticism about the value of the patents system.” “Thomas Jefferson and the Patent Act of 1793,” Essays in History 40 (1998).

Stephan Kinsella|8.6.10 @ 9:18AM|#


As for a theory – my theory is Natural Rights. Perhaps you have heard of it. It’s the basis of the Declaration of Independence, common law, and private property rights.

You initial-caps Natural Rights like an amateur/crank.

I was unaware Natural Rights was the “basis” for “the common law.” Where did you get that idea from?

It’s not even “the basis” for “private property rights”. Both these systems emerged naturally without any grounding or backing in a theory of natural law.

Wherever it has been tried it leads to freedom and prosperity and intellectual property rights.

This is so confused. First you talk about natural rights, which is deontological, and then right away switch to empirical data…. And further, do you really think IP has always arisen in lock step with “natural rights”? No, it (in its copyright and patent incarnations, which is the issue under debate) has always been a creature of STATE LEGISLATION, which has nothing to do with “natural law” or “natural rights”).

“Property rights are moral basis of economics.”

Economics is the study of the catallactic (market) implications of human action. I didn’t realize that a discipline or study “has a moral basis.”

” Property rights ensure that parasites, both government and private, cannot live of the effort of other people.”

Property rights provide protection for owned scarce resources, if and to the extend they are respected and enforced. They do this by providing visible property borders that are arrived at by a fair assigning process (that is, rooted in Lockean homesteading).

As a result, people have an incentive to invest and work hard.

jumping again to modern “incentive” arguments. Not all rights are about “incentives,” though there is a natural harmony of course.

Patents are property rights

Mere assertion. Sloppy-thinking amateurs apparently do not even know what question-begging is.

and they provide the assurance that parasites are not able to steal the labor of inventors.

Using information to guide your actions does not “steal” anyone’s “labor.” What do you live in, metaphor land?

On the other hand, your theory is based on scarcity as the reason for property rights. This theory ignores the value of the human mind and is perfectly consistent with Marx’s physical labor theory of value.

You keep showing how confused your thinking is. You are so out of your depth is is comical. You have no idea what you are talking about. You should stick to being a good patent-scrivener minion specializing in interfacing between monopoly-seeking clients and the state-bureaucracy that grants them to suitable supplicants.

It allows parasites to steal the product of other people’s mind.

Wow, two question-begging assertions in one short sentence. Impressive.

As a result, it destroys the value created by people,

There is no property right to “value.” Only to the physical integrity of one’s property and its borders.

particularly inventors, and destroys the incentive to invest in inventions.

Once again switching to utilitarian reasoning when you started out talking about “Natural Rights.” Or should I say, Utilitarian reasoning?

Providing a bunch of pseudo math in which none of the variables are measurable

YOU are the ones claiming that IP law creates net wealth. Implicit in this claim is that the net innovation-based gains of the system exceed the costs. You are urging a law that infringes prima facie on property rights and liberty; you have the burden of proving that your proffered justification is correct. If you cannot measure these thigns–and I agree, you cannot, not really–then this just means you can NEVER satisfy your burden of proof. Thanks for conceding!!

Mathematical formulas for modeling the real world, where none of the variables are measurable is not science it’s fraud.

I quite agree with you that when people like you assert that IP law generates net innovation and net wealth and that it’s essential for innovation blah blah blah, this is pure pseudoscience by a bunch of amateurs, poseurs, and dishonest patent shills.

You are in favor of patents because it pays the bills. I get it. Your reasoning is nothing more than this. the rest of your flimsy non-arguments are nothing but makeweights to justify your own source of income. Everyone knows this. Patent lawyers know this. You just recite a few bullshit bromides that judges and law professors toss off, because that’s “good enough” to satisfy most mainstream statist-minded types who will be listening. You are not serious, and everyone knows it. The game is up.

Dan|8.6.10 @ 2:34AM|#

Halling, I guess that means you don’t have an answer to the question Kinsella asked? Or do you always go back to talking points like a politician when you get over your head.

Stephan Kinsella|8.6.10 @ 9:22AM|#

Of course, he cannot and will not answer it, and his type never even try. I have had this same conversation with innumerable patent lawyer jerks who spout off this crap, and when you just ask them a simple question: how do you know? they just look at you with glazed eys, shut up, walk away or change they subject. I have NEVER had one of them even try to answer this question. What’s worse, they won’t even acknowledge that it’s a valid question, or that the burden of proof is on them, since they trot this out as a justification.

When no knowledgeable critics are around they’ll dishonestly state that IP promotes innovation, as if there is well-known empirical support. they’ll even lie and say “the studies” show this. In fact, it’s excatly the opposit. All studies are methodologically problematic (meaning they could never meet their burden of proof, fully); but the ones that do exist are either inconclusive or say that IP is unnecessary or harms innovation or net wealth. When you point this out, you get blank stares and a change of subject.

This thread is a good example. Halling simply refuses to even try to ansewr the qeustion. He knows his position is totally doomed if he does. He can’t even grant that it’s a valid question, since by doing so he would set himself up for certain failure. In other words, he is knowingly peddling bullshit.

Michael Barnett|8.6.10 @ 9:42AM|#

Game. Over.

Now that Kinsella has effectively annihilated the amateur Halling, what’s the next topic for debate?

{ 7 comments… add one }

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.