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 [Hostey] 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 theirevidence?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 areprivate 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?

[SK cross-post; Mises cross-post]

 

Are anti-IP patent attorneys hypocrites?

Over the years I’ve been accused of being a hypocrite for practicing patent law while opposing its legitimacy, or similar charges–such as the charge that I must not or cannot be a very good patent attorney if I don’t believe in the system, or why do I “copyright” my own books if I don’t believe in copyright. Below is a collection of posts addressing these and related arguments.

 

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Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

from the not-at-all dept

I know a fair number of patent lawyers and copyright lawyers who are quite skeptical of what’s become of patent and copyright law — and who readily admit that the law has gone way beyond what is reasonable or what the law was designed to do (i.e., “promote the progress…”). And yet there are some in the patent or copyright legal business who somehow seem to think that it’s traitorous for a patent or copyright lawyer to ever dare question the idea that patents and copyrights work. I had a patent lawyer argue with me the other day that of course patents encourage innovation, because the Constitution says they do. This sort of logical blunder blows my mind. How can otherwise intelligent people assign such backwards logic to things? Do these same people also believe that when Congress passes any law, it automatically achieves its goals?

I have a good friend, who has recently made it through law school. Since he spent over a decade as a computer scientist, the law firm he went to work for made sure he did a rotation in the patent group (but of course). He was telling him how sick the experience made him feel. He said the stuff he was working on was disgusting. Helping companies patent blatantly obvious ideas, and using those patents to sue other companies who were innovating. Even worse, he said that many of the partners in the group seemed gleeful at how they were abusing the system, solely because of the amount of money such projects bring in. None of them bothered to consider that the overall impact of what they were doing wasn’t “promoting the progress” but was harmful to society as a whole.

So, I can understand how lawyers can be on both sides of the equation (though, it says something to me about how they view the world). And, yet, there are still some IP attorneys who seem to think that it’s somehow ridiculous that a patent attorney could ever find patents a net negative on society (leaving aside the many, many recent studies done by lawyers who have shown exactly that). Stephen Kinsella, a patent attorney who is against patents has responded to one such claim by a patent attorney, explaining why of course a patent attorney can disagree with the patent system, and still do his job. He notes plenty of patent attorneys who have become skeptical of the patent system.

But what’s really stunning are the claims of the patent lawyer, Gene Quinn, who prompted Kinsella’s claim. He was actually writing in response to a Techdirt post, where he makes numerous odd claims that don’t make much sense. He assumes that it’s factual that patents must promote innovation based on “the basic laws of economics.” This makes me wonder which laws of economics Quinn is talking about, seeing as the laws of economics I know say that monopolies almost always lead to suboptimal societal benefit. He claims that “all the evidence” say that patents increase innovation. Except that’s not true at all. We can start listing off all the studies that have shown the contrary, but I’ve yet to see one that actually supports Quinn’s position. In response to that, Quinn amazingly claims that the studies that prove him wrong don’t matter:

Would you please stop reading studies and look at history! Studies are done by academics with an agenda, are based on thought experiments, do not take into consideration important factors and are preconceived in order to come out with a particular answer.

That’s a neat trick to dismiss the actual evidence (after insisting all the evidence was on his side), but it’s flat-out, almost 100% wrong. And provably so. Because most of the studies I was talking about aren’t “based on thought experiments” but are “looking at history.” And, among those “biased academics” are at least two Nobel prize winning economists (Maskin and Stiglitz) and someone who was a very successful entrepreneur before moving to academia (Bessen). Besides, most of the academic studies that Quinn dismisses as irrelevant was peer reviewed. There are problems with peer review, of course, but to claim that these are far out ideas, while insisting that “the basic laws of economics” supports patents is simply not supported.

There are plenty of reasons why people might believe patents increase innovation — but they’re the same theories of the mercantilists in the 18th century, who believed that monopolies on other products spurred more development in those businesses. That theory was debunked and is considered laughable by pretty much any economist today. And yet, when it comes to patents, why do people automatically reject what economists realized two hundred years ago? Monopolies may temporarily benefit the monopolist, but at the expense of society as a whole. And, if Quinn wants to look at history, let’s take a look at people who did actually look at the history, from Eric Schiff (showing rapid innovation and industrialization of the Netherlands and Switzerland without the use of patents) to Petra Moser (showing no less innovation in comparable countries with no patent laws to those with patent laws) to Lerner’s work (comparing various countries before and after they changed patent systems, showing that stronger patent laws do not lead to greater innovation) to Qian’s research (patent system changes across countries in the pharma industry, showing stronger patent laws did not lead to greater innovation, and, in fact, that weakening IP enforcement often led companies to become more innovative to stand out from the competition) and onward (there are a lot more where that came from). Hell, even the World Intellectual Property Organization (which usually is pretty damn supportive of IP) has noted that there’s been no real evidence that IP protection leads to any economic payoff.

Quinn says to ignore the studies and look at the history, but the history says exactly what he claims it doesn’t.

Those who insist that patents must lead to innovation fallback on a few, rather basic, logical fallacies. They point out that countries with strong patent laws tend to see much greater innovation. This is what Quinn means by “look at the history.” But they are mixing up correlation with causation — not recognizing that the stronger patent laws almost always post-date a period of much greater innovation, and then the patent system gets strengthened, not to promote more innovation, but to limit competition from those who innovated in the past (and, in fact, research by Park and Gigante found evidence of this very thing in looking at “history”). Or, they claim that since we still see some innovation, then clearly patents don’t hold innovation back. But compared to what? The argument we’re making has never been that patents stop all innovation cold. Of course innovation still occurs. But the question is at what rate? As we’ve seen in countries without patents or with much weaker patent systems, you tend to have much greater competition among smaller, more nimble firms. Since competition is a great driver of innovation, it’s no surprise that there would still be great innovation in such societies. Separately, the fact that there may be fewer major innovations coming from societies with weaker patent laws today is again, not evidence that patents work. There are numerous factors that influence innovation — and picking a country with poor infrastructure or widespread poverty, isn’t exactly an apples to apples match with someplace like the US.

But just thinking logically, you can realize why the argument that, without patents, there would be no innovation, is provably false. When it’s easy to copy someone copying losing all value by itself. Just being a copycat is pretty useless, because anyone else can do it. So, the real value is not in copying, but in leapfrogging. And that leapfrogging is (*gasp*) innovation. It’s only in a world with patents where copying has value. That’s because those patents create monopoly rents — and thus, there’s an artificial profit bubble, that others want access to. That creates a societal net loss.

Given all of this, it makes plenty of sense why patent attorneys could certainly recognize the harm that patents can cause. In fact, I would think such individuals are a lot more trustworthy on patent issues, since you know their position is not influenced by the fact that they make money off of the system. So, no, there’s nothing odd about patent attorneys who find problems with the patent system. They’re people who recognize the simple fact that just because a system is set up to do one thing, it doesn’t mean that it automatically occurs. They’re people who recognize that innovation is not synonymous with patents, and are able to take a step back and say what is truly best for innovation.

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

 

September 29, 2009 by Stephan Kinsella

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, 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 [Hostey] 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?

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Reality Check: Anti-Patent Patent Musings Simply Bizarre.

 

Responding to Critics: My View on Patents & Innovation.

 

Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?