by Dennis Crouch

Professor Adam Mossoff recently posted a draft of his essay Trespass Fallacy in Patent Law. The essay is quite short (17 pages) and accessible. Mossoff is able to encapsulate his basic idea in one paragraph. He writes:

One common refrain [from patent critics] is that patents fail as property rights because patent infringement doctrine is not as clear, determinate and efficient as trespass doctrine is for real estate. This essay explains that this is a fallacious argument, suffering both logical and empirical failings. Logically, the comparison of patent boundaries to trespass commits what philosophers would call a category mistake. It conflates the boundaries of an entire legal right (a patent), not with the boundaries of its conceptual counterpart (real estate), but rather with a single doctrine (trespass) that secures real estate only in a single dimension (geographic boundaries). Estate boundaries are defined along the dimensions of time, use and space, as reflected in numerous legal doctrines that secure estates, such as adverse possession, easements, nuisance, restrictive covenants, and future interests, among others. The proper conceptual analog for patent boundaries is estate boundaries, not fences. Empirically, there are no formal studies of how trespass or even estate boundaries function in litigation; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function; it’s the nirvana fallacy. Furthermore, anecdotal evidence and related studies suggest that estate boundaries are neither as clear nor as determinate as patent scholars assume it to be. In short, the trespass fallacy is driving an indeterminacy critique in patent law that is both empirically unverified and conceptually misleading.

In this essay, Mossoff makes an important contribution to the rhetoric of patent policy.  The most convincing element of his argument is that the trespass metaphor fails. In my view, his broader real estate metaphor also fails because it also does not fit well with the U.S. patent system except in its level of complication and dispute potential.  The reality is that all metaphors fail to fully mirror their subject — by definition a metaphor is something different from its subject.  With that in mind, I see the essay as raising a cautionary flag against over-reliance rather than a complete indictment.

My more important critique of Mossoff’s argument is derived from his suggestion that we hold-off improving the patent system until we know which metaphor is best and whether issued patents are more indeterminate than real estate deeds.  Mossoff writes:

Until firm factual grounding for this normative critique is first established, commentators, legislators and courts might want to pause before continuing to make fundamental structural changes to the American patent system.

Even if Mossoff’s base critiques of the trespass metaphor are all correct, we still know that the U.S. patent system has room for improvement.  The fact that the real estate market is in shambles should not serve as a justification for officials (or comentators) to fail in their duty to make our system the best that it can possibly be.

COMMENTS:

119 thoughts on “Why Isn’t Patent Law as Straightforward as Real Estate Law?: Maybe it Is”

1. 119

   Great post. I found this searching for the title of your article. Thanks.
2. 118

   He wasn’t there in the room. Documents are signed and not dated? I wouldn’t sign a Document and not date it if there was a line, and neither would my husband. These have to be forgeries. I also never received any communication on what we could or could not do while in …. because we never discussed nor did we ever receive copies! and he would never ever speak with me.
   So apparently no date and they have to be a forgery… we are in FLUX! We were in FLUX!
3. 117

   That you have no answer to my question how, in the absence of a patent system, we would ever have any new pharmaceuticals: now for me that IS an argument in favour of having a patent system.
4. 116

   And your response at 2:21 PM is neither an answer nor an argument – it’s a dodge pure and simple.

   Try again.
5. 115

   This is not an argument for the patent system–that Stephan Kinsella has not “revealed to MaxDrei” how the pharmaceutical industry would work in the absence of state regulations. It is fine to have questions. But questions are not arguments.
6. 114

   Thanks for taking the time to reply, and reveal to me your anarchic prescriptions. If “State” means Rule by Putin or Rule by Party, then I can see why you’re against it. We just disagree on whether that sort of state would be better or worse than complete anarchy.

   But my experience in England is that it doesn’t have to be one or the other. I imagine a State with a legislature, a judicature and an executive branch. I would take all the good bits of the Constitution of the USA but tweak it just enough to prevent politicians being bought by interest groups. For me that’s a much better way than anarchy, to raise an individual’s quality of life.

   And you still haven’t told me how without a patent system your anarchy would deliver the new life-saving drugs that we will need to survive on planet Earth.
7. 113

   anon, I probably am more of the Ayn Rand variety than of the anarchist variety. We need government to establish and protect rights in property. However, the government needs to stay out of people’s private lives. Unless one actually hits the other man’s nose, our freedom to swing our fists should not be impaired. If you want to drink yourself into oblivion, or use other means, that is your right in my view.

   I’m not so sure libertarianism extends to the non protection of property. That is communism.
8. 112

   “Stephan, you write “…the mammoth state you need to impose patent law, also imposes crushing taxes and FDA and other regulations on pharmaceutical companies….” Emotive words like “mammoth” and “crushing” do nothing to get me on board. Quite the opposite.”

   Your loss. The state is mammoth and engages in huge distortions and puts impediments in the place of companies prospering and innovating. If your goal is to improve innovation and prosperity, get the state out of the way, don’t ask for it to do more!

   “I said “new” drug, and you answer with century old staple industrial product aspirin. That’s no answer.”

   Aspirin, Tylenol, were new at one poitn. The point is they are still being sold at a premium. why is this? Because of reputation. Many people pay 50-100% more for the name-brand drug when the generic is sitting next to it. THe point is there is a way to recoup costs and make ap rofit by selling something even in the face of competition.

   “You invite me to read Boldrin & Levine. Of course, you have done that already. If, having done that, you still can’t answer my question well you know what, I’m not going to bother with B&L.”

   The answer is simple: engage in R&D, make the product, sell it for a profit. The only reason you would not accept this is be/c you have accepted false claims and have a utilitarian concept of law. I do not. I have a principled, propertarian view. THe utilitarian, empirical case is strictly illustrative or lagniappe for me. It is secondary. BUt you seem to care about it. So do B&L. They give exhaustive detail about the numbers–they show clearly that people like you are resting your conclusions on simply false assumptions.

   “Where does this idea come from, that Big Corp are angels and Big State the opposite?”

   I do not think they are. My argument does not rest on this idea. Just b/c Big Corps are not angels does not mean patent law is justified. Further, one reason there are Big Corps is the state props them up with various policies such as patnet law, which helps create oligopolies, and other policies like minimum wage and other regulations, which larger corporations can afford more readily than smaller ones (e.g. Walmart pays workers above minimum wage already, so of course it lobbies for a higher minimum wage; raising it will not affect Walmart, but it will hurt some of their smaller competitors). The state and big business are in bed together.

   “For me, The State is there to protect its citizens and to promote the general welfare,”

   The State’s nature is that of a territorial monopolist of the services of law and justice, with it being the sole decider even in cases between its subjects and itself; leading to predictable results.

   ” while Big Corp is there to feed on them. Perhaps the FDA is “mammoth” but even so, I personally would rather live in a world with an FDA than one without one.”

   What you would “rather” does not justify the state’s forceful imposition of these laws on innocent companies and individuals–thousands of people suffer and die every year because the FDA denies them access to treatments.
9. 111

   Stephan, you write “…the mammoth state you need to impose patent law, also imposes crushing taxes and FDA and other regulations on pharmaceutical companies….” Emotive words like “mammoth” and “crushing” do nothing to get me on board. Quite the opposite.

   I said “new” drug, and you answer with century old staple industrial product aspirin. That’s no answer.

   You invite me to read Boldrin & Levine. Of course, you have done that already. If, having done that, you still can’t answer my question well you know what, I’m not going to bother with B&L.

   Where does this idea come from, that Big Corp are angels and Big State the opposite? For me, The State is there to protect its citizens and to promote the general welfare, while Big Corp is there to feed on them. Perhaps the FDA is “mammoth” but even so, I personally would rather live in a world with an FDA than one without one. Little me, even with the help of my big insurance company, is no match for innovative pharma (even if I were still alive to go after them).
10. 110

    [cont]

    The short answer is: people would make drugs in the absence of patents, to sell products to people. Just like any other company goes into business to make hamburgers. A burger join knows it will face competition from others but goes into business anyway. Same with name-brand drugs like Bayer Aspirin or Tylenol. In fact, the mammoth state you need to impose patent law, also imposes crushing taxes and FDA and other regulations on pharmaceutical companies; if you really want to promote innovation, lower taxes and regulations and get rid of the FDA; don’t ask the state that is HARMING business to add yet another state regulation to slightly make up for the harm it’s doing already; stop doing the harm!
11. 109

    [cont]

    Moroever there is NO evidence that the patent system DOES enable such things as you want. Further, there is no empirical evidence that without the patent system there would not be innovation. To the contrary: if you will just see ch. 9 of Boldrin & Levine’s Against Intellectual Monopoly, available free online against monopoly, they explain how the patent system is emprically not necessary for pharmaceutical development and how nations in the past like Italy have gone without patent protection for drugs for decades and been at the top of innovation in this area.
12. 108

    [cont]

    “I’m now wondering what are the “factors” (as you call them) that go into the making of a new drug molecule, and how useful to me is the drug that I have made out of those “factors”. Unless I am dying of the disease in question, no use at all. But I still don’t see how, absent a system of patents, there are ever going to be any drugs created, to save any lives at all. I asked that before, and got no answer. Can you answer now?”

    Well, I am reluctant to answer such questions because they are worded as if it’s obvious that unless I can show you how, we have to have a patent system. That is, you are smuggling in a utilitarian/consequentialist mentality, which I believe is not so obvious. In fact that is now how we decide what laws are just: we don’t just sit around thinking of end goals we think “should be met” In society (like: there ought to be ‘enough drugs’ created) and then just rubber stamp any artificial legal scheme dictated by a bunch of politiicans that they claim might help you achieve this predetermined “goal.” The only goal of the law is: justice; which means: giving someone his due; whihc means: protecting his property rights from invasion by others. That is the sole goal of law.

    [cont]
13. 107

    [cont]

    “Nice to read though that creation and production increase wealth. We would want to encourage creation and production then, I suppose. What can we do to encourage creation? Anybody got any ideas?”

    Yes, it’s called “private property rights.” You are free to transform objects into a more valuable configuration,a nd your incentive is: that if your property rights are secure you get to use it, or sell it for a higher price to a customer. This is even though others might see what you are doing, notice that it is popular, that you are making a profit, and start to emulate you and compete with you. Imagine you are the first guy who thinks of building a log cabin, instead of living in caves? What is your “incentive”? Why, to improve your situation. Or to get a reputation as the “First and best” log cabin builder so others will hire you. Who konws? The fact that as soon as you build the log cabin, others will realize this is possible and get the idea and start building their own cabins, does not mean you are unable to do it.

    [cont]
14. 106

    “When the State has not set up any system of IPR, there is no “property” in a creation.”

    Depends on what you mean by “creation.” If I own some marble and carve a statue into it, the statue is my “creation” and I own it b/c it is physical object the material of which I was already the owner. So I do own my creation. If I make a million ipads, I “create” them and own them. That’s why I can sell them.

    [cont]
15. 105

    This system if not posting my reply, for some reason.
16. 104

    Ned,

    Aspiring to be Stephan Kinsella (or accepting comparisons as favorable) will not improve your reputation.
17. 103

    Sarah, I’m glad you believe I am Kinsella. I too am a libertarian at heart.

    What about your politics? Are you a Jacobin?
18. 102

    I know who Kinsella “really” is, cousin to Ned and Michael never removed. Stephan Sockpuppet Kinsella.
19. 101

    That helps. Thanks. When the State has not set up any system of IPR, there is no “property” in a creation. Nice to read though that creation and production increase wealth. We would want to encourage creation and production then, I suppose. What can we do to encourage creation? Anybody got any ideas?

    I’m now wondering what are the “factors” (as you call them) that go into the making of a new drug molecule, and how useful to me is the drug that I have made out of those “factors”. Unless I am dying of the disease in question, no use at all. But I still don’t see how, absent a system of patents, there are ever going to be any drugs created, to save any lives at all. I asked that before, and got no answer. Can you answer now?
20. 100

    Do you really think that the insult was masquerading as an argument?

    And you think MaxDrei talks like a total amateur?
21. 99

    “You know, you lose me when you assert that a new and inventive blockbuster drug is no creation but just the same property as the carbon raw material in its molecule, and that the supercomputer is no further creation than the silicon raw material in its chips. Then you point out that IPR can exist only within a State and, as States are illegitimate, so is IPR.”

    I never said that a new drug is not a creation. I have explained, however, that creation is not a source of property rights. There are only two sources of property rights: original appropriation (that is, homesteading a previously unowned scarce resource), or contract–that is, acquiring an owned thing from a previous owner contractually. “Creation” is not a source of property rights, nor is “production”. Creation or production are means of increasing wealth, bu not property. Production presupposes you already own the raw materials that you rearrange into a more valuable configuration–so when you use your intellect to re-shape existing, already-owned materials, into a more valuable configuration, then you increase wealth or value. But you own the resulting product because you already owned the factors of which it is composed. If you had not already owned them you would not have been entitled to transform them. If I shape metal into a sword, I own the sword not because I produced it, but because I already owned the metal. By shaping it into a sword I have increased my wealth, because the sword is presumably more useful and valuable to me than raw iron ore.
22. 98

    “I had not realised your theory was quite so fatuous”

    The tinfoil hat should have been your first clue.
23. 97

    Stephan, thanks for the Link to your Concise Guide above. It explains a lot. I commend it to other readers.

    You know, you lose me when you assert that a new and inventive blockbuster drug is no creation but just the same property as the carbon raw material in its molecule, and that the supercomputer is no further creation than the silicon raw material in its chips. Then you point out that IPR can exist only within a State and, as States are illegitimate, so is IPR.

    I had not realised your theory was quite so fatuous. I’m very disappointed in you Stephan.
24. 96

    My point has been made clearly and explicitly over and over: patent and copyright are unjust invasions of property rights and should be abolished. As for the “separation from reality” remark–this is lazy insult masquerading as argument. You have no argument for IP. There is no argument for IP. I have never heard a good argument for IP. The best one is: “I want Mickey Mouse’s copyright extended so I can make a few more billion bucks.” Yeah. Good argument.
25. 95

    So here we have a nym ( Kinsella Tinfoil Hats For Sale) whose argument seems to be that … my anti-IP views are not popular. Yes. I am aware that most people believe in IP. Most people also believe in taxes and the drug war. And at one time chattel slavery was popular enough to exist, and the abolitionists then were mocked and ignored, but finally won. Will the IP and drug war and tax abolitionists ever win? Time will tell. But copyright is already being largely neutered thanks to the Internet, digital information, encryption, torrents, etc. This is a good thing. One would hope that legal reality would eventually be forced to comport with human reality (as one law professor recently suggested — link to surprisinglyfree.com), but unfortunately this is not what has happened in the case of the horrific drug war.

    I have a cogent set of arguments against IP (see , The Case Against IP: A Concise Guide and link to c4sif.org). I’ve practiced patent law 20 years, and have looked into this issue in depth. My approach is rooted in respect for individual rights, property rights, and the free market. Once you understand the origin, nature, and purpose of patent and copyright, and the purpose and role of property rights in social life and in the market, you cannot help but come to realize that patent and copyright are completely unjustified derogations from the free market–incursions into it, distortions of it, by a meddlesome, destructive state. IP rights harm human lives, impose literally hundreds of billions of dollars of net cost on the economy every year, and reduce overall innovation and creation in addition to heavily distorting the market, research, and culture.

    None of your rambling potshots addresses this. Your argument amounts to: most people don’t agree with you, an argumenten ad populum. The fact is that neither you nor anyone else is able to justify patent and copyright; like all socialistic measures, like all crime against property, they might be committed but they cannot be justified. You may be able to get away with foisting these schemes on society, but that does not make it right.
26. 94

    Well, there always will be cases where both sides think they ought to win, so I agree it is pure fantasy to suppose that there will ever be a time when the courts are not needed.

    But take the EPO’s Annual Update to its Caselaw Digest (on validity of course, not infringement). More than a thousand new Decisions each year to digest. The most recent issue has 146 pages of interesting new caselaw. But there are only 8 pages on novelty, only 11 on obviousness and only two on enablement. The mine on those topics is more or less worked out.
27. 93

    “I’m for legal certainty so high that parties in dispute know at the outset whether the asserted claim is good or bad”

    [More Eyeroll]

    Talk about fantasy land. If that were actually the case, the courts would not be needed.
28. 92

    “You know, like patent litigation works in England.”

    Because English patents are the envy of the world…

    [eyeroll]
29. 91

    “You know, like patent litigation works in England.”

    LOLZ.

    Here, wear my glasses, they work for me…
30. 90

    Cas, it’s really quite simple actually. Much simpler than you make out.

    I’m for swift (within months, not years) injunctive relief from infringement of claims that are finally determined to be not invalid. I’m for a “Polluter Pays” rule, that operates to lay proportionate cost on parties that persist in asserting bad claims, or persist in their defiance of good claims. I’m for legal certainty so high that parties in dispute know at the outset whether the asserted claim is good or bad, thereby obviating any need to trouble the court, much less the Court of Appeal.

    You know, like patent litigation works in England.
31. 89

    “Your argument is not going to convince Kinsella”

    Do you think the post of KTHFS is meant to convince Kinsella, or more to spotlight the separation of Kinsella from reality?
32. 88

    “does not mean that Kinsella doesn’t have a point.”

    What is Kinsella’s point?

    (this is a really simple question, as Kinsella has already stated his point in response to posts including 6’s and Ned’s)
33. 87

    It seems that we agree that the requirements of obtaining patent rights (the height of the hurdle) is adequate, but that it is in the execution of examining applications to achieve those rights that falls short. Is that a correct statement of the genesis of the problem (regardless of that problem’s scale)?

    It seems we also agree that the objective facts indicate that the minor (based on enviable percentages) problem is a major concern of your feelings, and that the combination of that minor objective-fact-based problem with the conjecture and unprovable level of assertions of dubious rights outside of the court system (the same court system whose records are used to arrive at the far less than 2% objective number) makes you feel that the scope of the problem is not overblown. It seems that you want to arrive at your reasoning through an over-dependence on the conjecture and unprovable state, while I ground my view in the objective and reasoned state. C’est la vie.

    As I have observed your writings, you are of the camp that it is OK to kill the patient (the strength of patents) in order to fight the patient’s illness (the fact-based minor problem of assertion of bad patents). If you want to play doctor to your perceptions of the objectively known and the subjectively unknowable problem, you might want to understand why doctors take the Hippocratic Oath (just as you might want to stay away from unfounded assertions and understand the background of someone {Kinsella} who has made themselves to be a public figure before stating that a certain fact pattern encourages anyone to listen to that person’s rhetoric).
34. 86

    Tin, just because no country has abolished IPR does not mean that Kinsella doesn’t have a point. What if he were asserting instead that our spinal column is not perfect for two-legged gait. What if you were challenging him to name a two-legged animal that has done away with its imperfect spinal column. Just because there is no such animal does not prove that the spinal column is perfect for an optimal 2-legged life.

    Your argument is not going to convince Kinsella, because he is not living in the real world of politics and “the art of the possible”.
35. 85

    “So long as countries have IP, I cannot argue that they should not?… you can never change the law, ever!”

    That’s some fiction Stephan. The problem is that I never indicated that you did not have a right to say anything, or that you cannot say anything. Additionally, your taint of “ultimate conservative” when you have no clue as to my political beliefs belies your playing of an emotion-laden card instead of using reason. Your “they are the gestapo” mantra wears a little thin.

    If I strip away the non sequiturs, if I strip away the strawmen, and if I strip away the emotion-laden but otherwise naked philosophical polemics, the answer to my question of “why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property? is

    None.

    Not a single solitary modern advanced society in the entire world values YOUR ideological framework enough to pursue what (to you so clearly) is “right and just”? How can the world be so blind?

    And the shocking perpetrators (conspirators who have been successful throughout modern history of usurping control from EVERY government to prevent the “just” annihilation of all state-sponsored intellectual property protection) is a cabal of vested (special) interest groups h3ll-bent on preventing competition (completely ignoring the fact that patents provide the power of competition to the little guy to compete with the established big guy and render moot non-innovative, anti-competitive factors of established power and size).

    Focus and focus clearly on the information that my question and your answers provides.

    How are the shiny hat sales going Stephan?

    Further, since you insist on creating strawmen and making deductions from arguments not even put on the table, it is evident that you want to argue both sides here. You do this because you want to control what conclusions are reached. But you cannot even argue your own side effectively, much less both sides. You remind me of the pro-pedophile groups who have their own “studies” of how beneficial under-age relations are and demand studies to show the dangers of their belief system, while ignoring the reality of the world around them that do not accept those beliefs. It is not a matter of my saying that you can “never change the law,” it is a matter that no one cares to change the law based on your belief system.
36. 84

    No I was not aware that Kinsella is a patent attorney. Thanks for that.

    But maybe he doesn’t practise?
37. 83

    It seems we agree that there is a problem and that you don’t know the scale of it. Nevertheless, you are sure that “the problem is being overblown”. I’m not.
38. 82

    Oh, and I forgot. Not only are we looking for technical disclosures about things that are not easily reverse engineered, we are also looking for straight up technical information. Patents give them incentive to put pen to paper and write theys sht down and share it with others. The fact that our current system discourages people reading patents (treble damages) is regretable and r tarded, but I cannot change it.
39. 81

    ” I oppose the patent system on principled grounds.”

    I know you do bro. I don’t.

    “The system should be reformed. But not abolished!”

    Tell you what bro, if you come up with a better way to drag technical secrits which are not easily, or not at all, reverse engineerable, out of the technical people that would like to keep it a secrit then I will support ya.

    “Look, even if you require reduction to practice, that solves NOTHING”

    Well, it solves something, just not everything.

    “would do nothing whatsoever to solve the A-B problem I explained above. ”

    I agree, but the compulsory licensing enabled by Ebay should take care of pretty much all cases where they can’t license.

    “A invents it and reduces it to practice FIRST”

    One does wonder why A didn’t stroll down to his patent office or to his interwebs and publish.

    “If A had only reduced it to practice but was not making it yet, then he can be enjoined by B.”

    Perhaps he will put a little bounce in his step to the patent office next time eh?

    “This is blatantly and obviously unjust.”

    I agree, but it is the gun we hold to inventor’s heads to disclose fast.

    “”Oh, I’m not in favor of THAT”

    No, I am in favor of THAT. At least in so far as we have the current system in place. If we want to start from scratch then perhaps we change the lawl somewhat.

    Look brother, I am fully aware of how bad the patent system is. But we have nothing better to drag technical goodies out of techies. The fact that our country is enamored with allowing the system to be abused more than is necessary is unfortunate 🙁
40. 80

    “How could any patent attorney have any other opinion than that?”

    MaxDrei, are you aware that Stephan Kinsilla IS a patent attorney?

    If I were a client of his, I would have to ask him how my applications were being zealously pursued given that Stephan firmly believes that all patents are evil.
41. 79

    No need to be sorry, and no need to be skeptical.

    What I wrote is objectively true. The rate of active patents in court is far below 2%. That is not a debatable point.

    You may feel that even at those low percentages, the problem is serious, and your feelings would be perfectly valid. You may also feel that “95%” of assertions settle before trial (which has a two-fold issue: the numbers in court and pre-settlement are captured in the far less than 2% and the numbers that settle before any court action are unknowable).

    Bottom line is that there will always be patent assertion and there always will be patents granted that should not have been granted. But the objective numbers and levels of this is at a low rate (other areas of law would love to have this low rate), and that the problem is being overblown.
42. 78

    Stephen, I may have misunderstood your position.

    I still think the problem is over claiming, and allowing patents on trivial and obvious advances.

    But I would hope that you would support the concept that theivery is not fair competition.  If one steals an invention from another and then uses it to compete, I would hope that you would support some form of protection for the originator.

     
43. 77

    I’m sceptical of what you write. Sorry.

    My experience at the EPO is that there are hundreds of interfering patent applications per year. So when you tell me there are only tiny numbers of declared interferences that don’t impress me much. I’m also not much impressed by a low ratio of patents to trial relative to patents issued. In England 95% of asserted patents setle before they get to trial.

    How good a search would have been needed, to found the proper objection to the Magsil claim? The Magsil claim isn’t the only mischief that the USPTO has issued. The flow has been ridiculous. And all presumed valid. And all good blackmailing intimidatory material. The idea that a jury is fit to judge what evidence of obviousness in an esoteric technical field reaches the level of “clear and convincing” is absurd. I gather that litigators try out their obviousness theories on their own young children, as stand-ins for the members of the jury. When is a jury ever “clear” on technology which cannot possibly understand?
44. 76

    That’s it. How could any patent attorney have any other opinion than that? But that’s the easy bit. The hard bit (as with any grand scheme) is the implementation.
45. 75

    I would further observe that the fact that the Patent Office issues bad patents that are corrected in a court system should not encourage people to listen to Mr. Kinsella.

    People should understand the more reasonable idea that the patent office does not (and cannot) perform exhaustive or perfecct searches and that there will always be patents overturned in court.

    One needs to recognize as well that the number of patents in courts is miniscule. At far under 2% of active patents (and far under 1% total overturned through the courts), reasonable people should recognize when a problem is being overblown.
46. 74

    Thanks Max,

    So to paraphrase, you are against “excessive” patenting when the patents are granted that do not actually meet the law and earn their Quid Pro Quo, and you are not against patents (however numerous) that are rightfully earned and granted according to law.
47. 73

    Excessive patenting is issuing claims like in Magsil, that go beyond the contribution to the art. Take ubiquitous performance measure X. Every customer asks what value of X your product offers. Every year, manufacturers get a little better. Last year it was 10% and this year it is up to 11%. You invent a way to get to 12.1% X. You claim “Every value >12%” and the USPTO issues your claim. That’s not just excessive. That’s ridiculous, hinders progress in that field, brings the patent system into disrepute, and encourages people to listen to Mr Kinsella.
48. 72

    Mr. Heller, you say you share my concerns. But then you just point to “abuses” of the system. My concerns have almost nothing to do with “abuses.” My concern is that patent law is inherently anti-competitive and violates property rights. This has nothing to do with corrupt patent attorneys or incompetent PTO examiners or patent trolls. Even with perfectly valid patents used by practicting entites, just as the patent law intends, this is bad. It lets company A use the force of law to prevent B from competing with him. this is anti-property, anti-market. The patent system is a relic of mercantilism and protectionism. It ought to be completely abolished. We would all be richer, freer, and have more innovation if this were to happen. The patent system is completely evil.
49. 71

    Max,

    I do not think KTHFS credits Stephan with a “world view.” Instead, he states that Stephan has a view that is not aligned with the real world. There is a huge difference. I agree with KTHFS.

    I like your allusion to not being paid to post, but that is an illusion to being a shill (TSSC has posted that money is not the only driver for shilling).

    I am curious though, what do you mean by “excessive patenting” (below)? Do you mean instead unearned patents, or not properly granted patents? Or do you mean that the patent requirements are not strict enough? Or so you really mean that some people who have properly and justly earned patent rights nevertheless should not have those rights? I have a hard time accepting the notion that someone who has passed the requirements for a patent is less deserving of the rights earned just because the level of activity in that particular art field may be high. Especially for US law, which provides a positive right with an open invitation language (35 USC 101: Whoever invents or discovers any new and useful… or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title).

    Lastly, I do not think that holding a proper view of patenting encumbers either a Ms Rand or Tea Party view of the subject. Do think so improperly validates the charge leveled by the fringe element.

    Clearly, Mr. Kinsella is on the fringe of patent philosophy, if not beyond. I don’t begrudge him speaking his views, but they are eccentric and out of place with how society views intellectual property.
50. 70

    “This right, if it exists”

    Are you talking about the inchoate right that patent law turns into a full legal right?
51. 69

    Kinsella:
    “Patents don’t give anything to the public, except perhaps an invention disclosure that the inventor is forced to make public in exchange for receiving the monopoly grant from the state. IF you mean the invention: well that is what the inventor does, but not the patent. But patents prohibit competitors from using similar inventions that they independently come up with. And they also prevent people from competing with the patentee, by emulating what they are doing. “

    Mr. Kinsala, let me say that I share your concerns. The Supreme Court has long tried to confine the scope of protection of inventions to what is disclosed and equivalents, which they do not believe extend to the independent inventions of others. However the patent bar as long tried to claim inventions not so much in terms of the particulars of an embodiment, but in terms of abstractness such that the principle of the invention is claimed without regard to the particular embodiments. Such claiming was condemned by the Supreme Court in O’Reily v. Morse, where the Supreme Court emphasized that the patent should extend only to what is disclosed and equivalents. They should not extend to the independent inventions of others.

    Even this year we had a Federal Circuit case that had debated whether the doctrine of equivalents could extend to an independent invention of another. The alleged infringement was patented by third-party in the particular case, meaning that it had the presumption that the patented variation was nonobvious. I believe the Federal Circuit held that the nonobvious status of the alleged infringement should be ignored in determining equivalents.

    But the problem with the patent system are patent attorneys and courts who aid and abet indefinite functional claiming and thereby allow claims to literally cover the independent inventions of others. Patent attorneys do not confine themselves with claiming particular features of the disclosed embodiments. They functionally claim abstract results, just as in O’Reilly v. Morse. When we allow claims like this to be routinely issued, and and when they are not routinely struck down by courts on well understood principles such as indefiniteness, then the patent system becomes, as you say, what you say this. It is an abomination, and I will agree with you that it is broken and needs to be fixed.

    This is not to say that the patent system is not working in some areas, for example chemicals, pharmaceuticals, or the like where ancient rules require particular claiming. But outside of these particular areas, the patent bar and the Federal Circuit have run amok and have virtually destroyed any credibility the patent system may have had in the public eye.
52. 68

    Max, I’ll read through these posts and provide a comment.
53. 67

    Mr Kinsella, I see you are hanging on in there, and I sympathise to the extent that excessive patenting hinders rather then promotes the progress of useful arts.

    But now let’s take what for me is the best argument in favour of a patent system, the blockbuster drug that took 13 years and a half a billion dollars to bring to market, that would never have got there without a patent to protect it.

    The enabling disclosure issues 18 months after conception of the drug, so all of India has more than 10 years to gear up its copying industry. Only thing is, without the patent system there would have been no conception, no publication and no treatment for the disease that, absent the drug, is going to wipe everybody out.

    Mr Kinsella, I like the thought of life-saving drugs. Where are we all seeing it wrong?
54. 66

    Kinsella Tinfoil Hats For Sale:
    “You do realize that correlation is not causation, right? ”

    ‘You do realize that that pet phrase is a non-sequitur, right? I did not say anything about cause or correlation.”

    Ah, I thought you were making (by implication) the tired old argument that we know the patent system “works” since the prosperous west has had these systems in place from the get-go. I’m glad you now implicitly reject this argument.

    ” Please put your cop-out parroted answer away. I asked you a direct and easy question. Here, let me repeat it for you:

    why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?”

    For the same reason that they impose tariffs on trade, impose minimum wage and pro-union legislation, provide corporate subsidies to agriculture, and so on–a combination of corruption, economic illiteracy, and special interest group lobbying.

    “If these studies of yours are so good, the ones that show “or eliminated,” then why are they unilatererally ignored?”

    Same reason Mickey Mouse keeps getting a lifeline–copyright terms extended by disney lobbying even though no one in their right mind can say that the copyrgiht term needed to be extended from life + 50 to life + 70, etc. The movie and music industry, pharmaceutical, etc., obviously all have a vested interest in maintaining the IP systems that protect them from competition. That is why they lobby the US gov’t to bully other countries into adopting US-style IP laws too.

    See, e..g.: China and Intellectual Property, Intellectual Property Imperialism, Free-trade pacts export U.S. copyright controls, Wikileaks cables reveal that the US wrote Spain’s proposed copyright laws. As for Disney-MickeyMouse-copyright lobbying: Copyright Length And The Life Of Mickey Mouse link to techdirt.com

    “Let’s see you answer the question; give me ONE advanced modern day country that has eliminated intellectual property rights. Just ONE.” None have, obviously. I am arguing that they should.

    “Until you can do that, all you are doing is attempting (and failing) to demagogue.”

    So long as countries have IP, I cannot argue that they should not? Wow, that’s the ultimate conservative position: you can never change the law, ever!
55. 65

    6: “Which is why I would also require reduction to actual practice.”

    This is so frustrating. I oppose the patent system on principled grounds. Someone replies with a list of ad hoc pragmatic or utilitarian concerns, and I explain why even these are wrong, using examples. I give examples of how the IP system results in outrageous, obvious wrongs. My interlocutur then backs down, “Oh, I’m not in favor of THAT. The system should be reformed. But not abolished!” AAAuughgh.

    Look, even if you require reduction to practice, that solves NOTHING. It would not even solve the troll problem–unless you also add a “working” requirement. And even if you have the reduction to practice requirement, it would do nothing whatsoever to solve the A-B problem I explained above. A and B aer both working on an invention; A invents it and reduces it to practice FIRST; then a month later B does this also, independently. B then files a patent. He is first to the PTO. He gets a patent and now can STOP A from making and selling his own products–unless A was already in production and thus grandfathered in under the prior use right exception. If A had only reduced it to practice but was not making it yet, then he can be enjoined by B.

    This is blatantly and obviously unjust.

    I know, I know, you will now say “Oh, I’m not in favor of THAT. We need to modify the law to stop that….”

    Basically, any obvious abuse I can point to, people like you start crawfishing in your defense of patents, but you will never give it up entirely, and you will not have any problem with more subtle forms of abuse, apparently having never read Bastiat or Hazlitt (the seen and the unseen).
56. 64

    Tin, you credit Stephan with a “world view”. I have to disagree with you there. I don’t see one. I see that you and Stephan agree that I talk “like a total amateur”. That’s OK. I had no idea that amateurs and professionals have different ways of talking. But in the context of contributions to a blog, I am happy to be an amateur rather than a paid professional.

    Just curious, but what exactly did Ms Rand have to say about patents (Wikipedia isn’t much help)and what is official Tea Party policy on patent rights.
57. 63

    “So EVERYONE in the world is wrong”

    I could have sworn he was talking about every government that has implemented IP lawls, not EVERYONE.
58. 62

    “Is it some giant large scale conspiracy?”

    Nah, governments know that they are beholden to the companies that are showering their nation in wealth (and taxes lol). So they are willing to help them out in return for a meager disclosure. Not to mention that it is simply a legacy system, like so many others we have that are hard to get rid of. Hardly a conspiracy.
59. 61

    “In patent law this is sufficient for the patent application”

    Which is why I would also require reduction to actual practice.
60. 60

    “The good patent gives the public something it never had before whereas the bad patent deprives it of something it already had.”

    That something is supposedly the disclosure. Which, obviously, in today’s world, most of which are worth less than my po op, even if they turn out to be the subject of a valuable patent. When disclosure was the rarest thing of evar, or if it is a disclosure of something beyond the skill of ordinary men in the field (not beyond what is obvious to them) then perhaps it has/had some value. And things which are merely non-obvious have meh, about as much value as my po op, especially when the disclosure is only published 18 mo after filing. If, for instance, patents published the day after filing then of course patents would be immensely valuable, and everyone would sing their praises. But companies apparently would ha te this and not want to file. Ok, I say, let them do that, and take the chance of competitor man coming along and filing. Imo, the only way to make patents truly relevant and beneficial to today’s society is to demand quicker publication, practically the next day after filing. But, since the old people in power can’t understand this just yet, I’ll take what disclosures I can in my field.

    What Mr. Kinsella takes as granted is that you have a property right in your physical property to do with it as you please, including transform it into whatever new arrangement you please without being beholden to anyone. This right, if it exists, is obviously abrogated by patent lawl.
61. 59

    Stephan: “blah blah blah”

    Translation: “so what? They are wrong.”

    So EVERYONE in the world is wrong and Stephan is right.

    So there.

    And Stephan tells MaxDrei that MaxDrei talks like a total amateur…(well, ok, he does, but Stephan, you are right there with him).

    Bottom line Stephan, it is your anti-real world views that are “all irrelevant.”
62. 58

    Thanks for your answers. And thanks for printing out my words all over again. I’m happy now for readers to form their own opinions on these issues.

    Ned, are you there?
63. 57

    Thanks for your answers. And thanks for printing out my words all over again. I’m happy now for readers to forrm their own opinions on these issues.
64. 56

    MaxDrei:

    “First I will declare an interest. Half the time I work for patent owners. The other half I work with a client who is trying to get authority to revoke an issued patent. So my interest is to see valid patents uphald and invalid ones wiped out.”

    This does not mean patents are justified.

    “The valid ones give to the public something it didn’t have before, namely early publication of an enabling disclosure of a new and non-obvious contribution to a useful field of technology.”

    First: wrong. Valid patents do not “give” this to “the public.” Second: so what? If you come up with a way to improve an existing technological produt, and you want to profit from this improvment, you have to reveal to the world that you have this new idea, by selling it. When you do you oepn yourself up to competition. so what?

    “Of course there is a price to be paid by the public for the early disclosure. Call it emotively “negative servitude” if you like but what you call it doesn’t change what it is. No end of countries have considered whether it is a price worth paying, and have concluded that it is.”

    And they are wrong. You cannot name a single study that proves what you say. Go ahead: I dare you.
65. 55

    MaxDrei:

    “Of course there is a price to be paid by the public for the early disclosure. Call it emotively “negative servitude” if you like but what you call it doesn’t change what it is.”

    It is not “emotive.” this is what is is. Anyone on the receiving end of a thuggish, fascist patent suit can attest to this.

    ” No end of countries have considered whether it is a price worth paying, and have concluded that it is.”

    so what? They are wrong.

    “At least in Europe, the “right of continued use” extends to those who have made “effective and serious preparations” to work the patented technology before the patent owner filed. So, if you have invested before the other fellow filed, your investment is not lost. And you can’t so invest without first having an enabled invention, right? If you had that but nevertheless failed to file, and you failed to invest either, tough luck. But what’s wrong with that. Society benefits from early investment in innovation, and early disclosures of new and non-obvious contributions to useful technical fields, but not from mere conceptions. Investment and disclosure are what promotes the progress. Mere conceptions do not.”

    You talk like a total amateur. This is all irrelevant.
66. 54

    First I will declare an interest. Half the time I work for patent owners. The other half I work with a client who is trying to get authority to revoke an issued patent. So my interest is to see valid patents uphald and invalid ones wiped out.

    The valid ones give to the public something it didn’t have before, namely early publication of an enabling disclosure of a new and non-obvious contribution to a useful field of technology.

    Of course there is a price to be paid by the public for the early disclosure. Call it emotively “negative servitude” if you like but what you call it doesn’t change what it is. No end of countries have considered whether it is a price worth paying, and have concluded that it is.

    At least in Europe, the “right of continued use” extends to those who have made “effective and serious preparations” to work the patented technology before the patent owner filed. So, if you have invested before the other fellow filed, your investment is not lost. And you can’t so invest without first having an enabled invention, right? If you had that but nevertheless failed to file, and you failed to invest either, tough luck. But what’s wrong with that. Society benefits from early investment in innovation, and early disclosures of new and non-obvious contributions to useful technical fields, but not from mere conceptions. Investment and disclosure are what promotes the progress. Mere conceptions do not.
67. 53

    Let me add, that what I like is that the idea he broaches that the first to actually build one should have priority over the one who simply files a paper design.
68. 52

    Stephan, I find some merit in this:

    “Consider: A and B are independently working on a new transistor design. Of course, they are buildilng on the innovations of others in the past, and the reason this new design is feasible now is becuse its “time has come” because the prerequisite technology is now available to people like a and B. Well A finalizes his idea first, and B a month later. Neither one of them has a working prototype or any produced goods. They just have designs on paper. In patent law this is sufficient for the patent application. B files first. A files a week later. Under the new rules, B gets the patent, A’s is denied, and when A tries to make and sell the new transistor design that he came up with, B can use goverment goons to stop him. Literally. To view this fascist process a part of the free market is obscene. ”
69. 51

    “You do realize that correlation is not causation, right? ”

    You do realize that that pet phrase is a non-sequitur, right? I did not say anything about cause or correlation. Please put your cop-out parroted answer away. I asked you a direct and easy question. Here, let me repeat it for you:

    why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?

    If these studies of yours are so good, the ones that show “or eliminated,” then why are they unilatererally ignored?

    Let’s see you answer the question; give me ONE advanced modern day country that has eliminated intellectual property rights. Just ONE.

    Until you can do that, all you are doing is attempting (and failing) to demagogue.

    “you again do not know what you are talking about.”

    And you still don’t know what you are talking about. You ideological mantra is old, boring and trite. You have to ignore real human nature in order to arrive at the basis of your beliefs. thus, the tinfoil hat reference is fitting.

    “I notice you have no justification for state-granted IP monopoly privileges. Your “argument” amounts to”

    Nice fallacy. Just because the topic was not addressed does not mean that I do not have a justification. Let’s see if you can take baby steps first Stephan. Give me the ONE successful modern day advanced society, and then we can discuss the cavalcade of your pipedream beliefs.
70. 50

    “If patents are so “e_vil,” why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?”

    You do realize that correlation is not causation, right? There is simply no empirical proof that patents or IP have increased wealth, innovation, or social welfare; to the contrary, the studies are ambiguous or conclude that IP should be scaled back or eliminated. see link to stephankinsella.com

    As for anarchy and anti-law–you again do not know what you are talking about. Anarchists are anti-state but not anti-law. The state is not the source of law any more than it is the source of roads or, in state-religion based countries, the source of religion. Or of morality.

    I notice you have no justification for state-granted IP monopoly privileges. Your “argument” amounts to (a) but the west has patent law and is richer (ignoring that it also has/had war, slavery, taxation, central banking, corporatism, inflation, regulation, tariffs, mercantilism, protectionism, racism, etc. over this time too–are they the cause of western prosperity too?); and (b) I don’t like anarchists because I think they don’t believe in law. Good …. “argument”.
71. 49

    Stephan,

    If patents are so “e_vil,” why is it that NOT ONE SINGLE modern advanced society has seen the light of what you preach and banned all intellectual property?

    Is it some giant large scale conspiracy?

    What you preach is anarchy, anti-law, as ALL law to some degree takes away from peoples’ ability to do what ever they want to do. The “free market” is not synonymous with an unregulated market. It never has been.
72. 48

    MaxDrei:

    “I’m having trouble following his logic, that patents take away what the public already had. He cites the RIM patents, but they were bad, were they not. As some judge once said, a long long time ago: The good patent gives the public something it never had before whereas the bad patent deprives it of something it already had.”

    Patents don’t give anything to the public, except perhaps an invention disclosure that the inventor is forced to make public in exchange for receiving the monopoly grant from the state. IF you mean the invention: well that is what the inventor does, but not the patent. But patents prohibit competitors from using similar inventions that they independently come up with. And they also prevent people from competing with the patentee, by emulating what they are doing. But of course this is a normal part of the unhampered free market: someone starts making a profit by engaging in some business, and the price system sends signals to others that this is an area they should look into–and so success draws competitors, who emulate and compete with you by doing what you are doing, or some variatn of it, maybe improving on it, etc., and thus the profit in the industry is gradually lowered, until more innovations and improvements are provided to the consumer. this is a normal part of the free market process. Patents short circuit this by prohibiting competition for about 17 years.

    “First to File patent law makes sure that nobody is deprived of what they already had.”

    This is untrue. What you are talking about is the prior-user rights, which were actually broadened in the Obama patent law a year or so ago–the first nontrivial improvement in patent law ever. But it’s not enough. YOu can still use a patent to stop others from doing what you are doing, and even people who independently invented it–even someoe who invented it FIRST.

    Consider: A and B are independently working on a new transistor design. Of course, they are buildilng on the innovations of others in the past, and the reason this new design is feasible now is becuse its “time has come” because the prerequisite technology is now available to people like a and B. Well A finalizes his idea first, and B a month later. Neither one of them has a working prototype or any produced goods. They just have designs on paper. In patent law this is sufficient for the patent application. B files first. A files a week later. Under the new rules, B gets the patent, A’s is denied, and when A tries to make and sell the new transistor design that he came up with, B can use goverment goons to stop him. Literally. To view this fascist process a part of the free market is obscene.

    “Enshrined in it is a Right of Continued Use.”

    that has nothing to do with first inventor to file rule. It is separate. And it would not protect A in the case presented above.

    ” Revocation of issued patents happens when the evidence of invalidity rises to a preponderance, or the “balance of probability” in civil law jurisdictions.”

    IT is costly to do so, so the patents can be used as a hammer against individuals or smaller companies. Patents have a “presumption of validity,” after all. Further, as i said above, the problem is not “invalid” patents that “should not have been” granted. the problem is good patents that are perfectly “valid”–the ones that cannot be challenged under nonobviousness or novelty grounds. Even if the patent system only generated 5% of the current patents it does, even if all of them covered existing product lines of the patentee (getting rid of the troll issue), even if all of htem are 100% “valid” (getting rid of the low-quality patent problem), it would still be a horrible, anticompetitive, anti-property, anti-free market system.

    “Of course a system that upholds bad patents whenever the party adversely affected cannot put together evidence of invalidity that rises to the higher asymmetric standard of “clear and convincing” (a problem found only in the USA) does help Kinsella’s point, that patents can (and do)impose negative servitudes on the public. Only the American public, mind you. That’s because only the uniquely “strong” US patent law can do this.”

    I think you are confused. This is not my point at all. I am explaining that the very nature of patent and copyright is a negative servitude. That is the right way to classify them. that is what they ARE. And seeing them in this light shows why they are illegitimate: because a servitude is a property rights that the burdened estate owner has to grant voluntarily to be valid. They are not granted voluntarily. the State just takes it from the property owner. YEs, he is deprived of his property rights: he no longer has the right to use his property in such-and-such ways pro patent claims.
73. 47

    Do you recognize your disconnect (also as simple as it is possible to be)?
74. 46

    Simple Answers (to questions that are about as simple as it is possible to be): YES, NO and NO.
75. 45

    Do you know that Kinsella is about as anti-patent as they come? Do you not recognize then, that points “in his favor” should be treated logically as polar opposites? Do you then recognize that the strength you attempt to denigrate is a good thing?
76. 44

    Kinsella writes:

    “The question is whether it’s just for the state to grant negative servitudes to innovators and artists”

    I’m having trouble following his logic, that patents take away what the public already had. He cites the RIM patents, but they were bad, were they not. As some judge once said, a long long time ago: The good patent gives the public something it never had before whereas the bad patent deprives it of something it already had.

    First to File patent law makes sure that nobody is deprived of what they already had. Enshrined in it is a Right of Continued Use. Revocation of issued patents happens when the evidence of invalidity rises to a preponderance, or the “balance of probability” in civil law jurisdictions.

    Of course a system that upholds bad patents whenever the party adversely affected cannot put together evidence of invalidity that rises to the higher asymmetric standard of “clear and convincing” (a problem found only in the USA) does help Kinsella’s point, that patents can (and do)impose negative servitudes on the public. Only the American public, mind you. That’s because only the uniquely “strong” US patent law can do this.
77. 43

    I get a bad link to Mossoff’s paper, you may want to fix.
78. 42

    So tangible property has intangible boundaries, and intangible property has tangible consequences.
79. 41

    I replied here:
    link to c4sif.org

    Mossoff’s argument is a huge bundle of confusion, of course. Mossoff is trying to justify IP, since Ayn Rand failed at it, but he is as doomed as she was in this task. Rand should have sensed she was wrong when she recognize that no one creates any new ownable things; they just rearrange already-owned objects into more valuable configurations. Thus, production, or transforming already-existing, already-owned scarce material, into more valuable arrangements, does in fact create wealth—since the owner or potential customers might value (note: a verb) the rearranged item more than they would in its previous shape—but this does not mean that the act of creation or production or transformation gives rise to any new property rights. It just transforms already-owned things. This is Rand’s big mistake.  (Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke, Smith, Marx and the Labor Theory of Value.) In addition to her incoherent attacks on anarchy (forget that Galt’s Gulch was anarchist). She should have stuck with her rearrangement view. Then she would have realized state-granted monopoly patent privileges are totally incompatible with this view.

    Mossoff is wrong, because the fundamental problem with patents is not that they are not similar to real property rights. It is that they are state-granted anti-competitive monopoly privileges that violate pre-existing property rights.

    Now, it is true that it is quite ridiculous to view patents as similar to real property rights (by “real” I don’t mean “real property” or land; I mean legitimate, pertaining to material, scarce objects—you know, the whole purpose of property rights?). As noted by law professsor Robin Feldman in a recent book, Rethinking Patent Law, it makes no sense to view patents are defining “property rights” (see Feldman: Patents don’t define property rights; they are an “opportunity to bargain.” Don Corleone nods).

    But even if patents are “similar” to property rights in land: so what? After all, there used to be property rights in other humans, and today there are innumerable property rights and entitlements like the right to not be discriminated against in employment or the right to receive welfare payments, which are unlibertarian (see Classifying Patent and Copyright Law as “Property”: So What?). Showing that you “can” have a working patent system that is crammed into the existing property-based legal system proves very little about the legitimacy of the legislation foisted on the populace by a bunch of politicians.

    The problem with the patent system is not that it is absurd to analogize it or patent claims to real property metes and bounds (though it is; trust me). The problem is not that you can’t force this system onto a semi-capitalist economy; apparently you can. That, and taxes, regulations, and the like. The problem is not low-quality patents, nor patent trolls, nor software patents, nor unclear nonobviousness standards, nor an incompetent PTO, nor too-long patent terms, nor inadequate prior art databases—though these are all problems. The problem is good patents, high quality patents, issued to cover existing products of existing companies, who use them to bash their competitors over the head.

    The problem is not that there are inadequate analogies between artificial state-legislated monopoly privilege schemes and legitimate property; for even if there are, this does not justified these laws. The problem is that IP rights are state-granted negative servitudes, that is, a grant by the state giving A the right to restrict how B may use his already-owned property (called a negative or appurtenant easement in the common law). B has to get A’s permission to use B’s own property as B sees fit, even though B never agreed contractually with A to limit his rights (a contractual, voluntary servitude), and even though B never committed any kind of tort or trespass invading the borders of A’s property rights. B has not agreed to grant a negative servitude to A, nor has B violated A’s property rights. There is no excuse for forcing B to grant A a negative servitude; yet patent and copyright do this. It is very similar to rent control, i.e. forcing B to rent an apartment he owns to A at some below-market price. It is similar to a state decree forcing a factory owner to let the workers have a say (union laws). It is similar to taxes (taking B’s property to give it to A). A negative servitude or easement is a property right. It is legitimate only if the owner grants it to someone else by contract. In the case of patent and copyright, the state grants a negative servitude to patent and copyright holders, to control the property of third parties. (See Intellectual Property Rights as Negative Servitudes.)

    This is the problem with IP law, and it is this that IP apologists like Mossoff do not justify, by saying that patent infringement is similar to real estate trespass. The question is not whether the enforcement of real estate law is similar to patent law. The question is whether it’s just for the state to grant negative servitudes to innovators and artists. And: it’s not. That is a property right that the state has no right to wrest away from someone. It should only be granted by contract, voluntarily. Not taken by legislative decree.
80. 40

    Mr. Proper, the original statutes in 1790 and 1793 contained no requirement of particularity at all.  That requirement was imposed by the Supreme Court for the first time in Evan v. Eaton, 1822.

    http://scholar.google.com/scholar_case?case=1729908477552871079&q=ariad+and+written+description&hl=en&as_sdt=2003
81. 39

    This is not a case of chicken or egg.

    What came first was the constitution, which delegated the authority to the respective branches. For patents, that delegation was to Congress.

    I know this is an area of law that you struggle with. I will not debate this with you nor explain this to you. You need to come to grips with reality on your own.
82. 38

    Yes Ned, Magsil. Thanks for that tip. I read that one, and was surprised by how uncompromising it was, on a claim that depends for patentability on a mere number, the lower end of a range, a range that the PHOSITA has always been tasked to push up.

    I often get asked by US clients to push such claims at the EPO. These clients honestly believe (from their domestic experience within the USA) that finding one way to solve a problem entitles them to exclude ALL ways to solve that problem (even when attacking that particular problem is no more or less than what their industry spends its time doing, day in and day out).

    Not surprising the clients want such claims though. Why not push them hard? Once they issue, they exclude all the competitors from all of the market, until the patent expires.

    All credit to the CAFC panel and all credit to a competitor who had the nerve to fight back. See, if they feel like it, the judges can motivate the PTO, and themselves deter those who would take vague over-broad claims to issue.
83. 37

    Mr. proper, what came first, the chicken or the egg?

    You are aware of course that a lot of the statutes were implementations of court cases, including the 1952 Patent Act?
84. 36

    “and that is why the required the claims be clear and definite in the first instance.”

    Misnomer: the requirement for clear and definite was by Congress.

    “These claims use functional language at the point of novelty.”

    Misnomer: there is no such thing as point of novelty, as the claim as a whole is what the point of novelty is. The Magsil case illustrates this as does all ruling case law.
85. 35

    Max, I think the problem we are wrestling with here is twofold: indefiniteness and breadth.  When one uses vague terminology in claiming an invention, generally we have a problem with determining what the boundaries of the claim are.  The Federal Circuit seems to have the attitude that if one can figure it out in claim construction, that is sufficient.  But the Supreme Court once upon a time was more concerned with notice, and that is why the required the claims be clear and definite in the first instance.  The Federal Circuit does not seem to understand this, at least not all of the Federal Circuit.

    The other issue is breadth.  These claims use functional language at the point of novelty.  In doing so, they essentially claim a result as in O’Reilly v. Morse.  For 150 years, until the Patent Act of ’52, the Supreme Court was at war with the patent bar on this issue.  As we know, in 1952, the Empire struck back, and passed what we now know the be §112, p.  6, which seemingly authorized functional claiming at the point of novelty (although there’s some question about that) with the proviso that the claims be construed to cover the corresponding structure and equivalents.  But as we learned in the Magsil case that came out just yesterday, that if one claims the point of novelty functionally as they did in that case, one has to enable the full scope of the claimed subject matter less the claim covered the future inventions of others.

    Hopefully, Magsil points the way against functional claiming at the point of novelty because most of those claims will now be invalid, in my humble opinion.
86. 34

    More thoughts overnight Ned.

    6. Obsessive attention in the EPO, prior to grant, to excise from the specification anything in the description of “the invention” that in any way whatsoever is not “in conformity” with the “invention” defined by the claims. (Authority derives from Art 84 EPC, that the claims be “clear” and that the spec shall “support” those claims.)

    7. No Doctrine of File Wrapper Estoppal. Construe the claim on the spec alone (as understood by the PHOSITA). Can’t draw on the wrapper to shade the meaning.

    8. No deference, after issue, to the opinions of the EPO workers prior to issue.

    9. Validity hangs on the balance of probability. No Presumption that the duly issued claims must be valid. If they are bad, they are invalid.

    10. A fierce resistance, throughout Europe, to any post-filing amendment that results in an amended text from which the PHOSITA can derive some technical teaching or other that was not “directly and unambiguously derivable” from the papers filed on the original date of application. You can’t take out more than what you put in on your filing date.

    11. No scope widening, once the patent issues.

    Readers will grasp that my prescription for legal certainty, as to what is going to be found by the courts to trespass, and what not, does not come cost-free.

    Ned, I have read again the Mossoff Essay. I see it was Judge Anthony Kennedy, exclusively on business method patents, in eBay, who complained about “potential vagueness and suspect validity”. I suppose it was from this exasperated utterance that Prof Mossoff gets his “infected with vagueness and indeterminacy”. I wonder whether Kennedy is right, that the infection started with business method patents.
87. 33

    Yes.
88. 32

    Max, many thanks.  I hope the Federal Circuit reads your post.
89. 31

    Fish, I think the problem with abstract claims is, as Court said in Morse, that they need no embodiments at all.

    In another sense, if you claim all ways of achieving a describe result, sure the claim is not enabled.

    What about this case? What if the claim had said I claim a tunneling resistor of the type described by the structure claimed (generically old) where the resistance exceeds the prior art 2.8% and is less than 11.8? Clearly that has one embodiment that falls within the claim limits. But has this one embodiment even enabled all ways of achieving the claimed narrower range?

    Clearly not. But that would be harder to prove in court, where C&C evidence is needed. But in the PTO? I think it should be presumed that one embodiment does not support the broad claim — after all, just one species does not necessarily support a genus claim.
90. 30

    So isn’t the Morse claim invalid as not being enabled?
91. 29

    suckie your post reinforces my post on enablement.

    Of course it does, suckie. Of course it does.

    [pats troll on head]

    [dips hand in mild detergent]
92. 28

    Do you have a point MM? I bring up enablement and your post reinforces my post on enablement. Exactly what should I be “having fun” with?
93. 27

    suckie Was it functional claiming per se that was the difficulty, or (more likely) simply a lack of enablement?

    Ah, the false dichotomy from sucktical. Classic!

    The claim was found non-enabled because the recited result (“causes a change in the resistance by at least 10% at room temperature”) included changes (e.g., 100% change) that were not taught by the specification and were not achieved by skilled artisans until years later.

    Have fun, suckie.
94. 26

    Was it functional claiming per se that was the difficulty, or (more likely) simply a lack of enablement?
95. 25

    Biscuit anyone?
96. 24

    LOL,

    MaxDrei shoots his mouth off on {insert random topic} to trumpet how wonderful the EP system is…

    Well, I am simply shocked, I tell you.
97. 23

    Why are claims less vague in Europe? Ned, I’ll try to answer your question.

    1. The Protocol imposes on infringement judges a mandatory requirement, when they do claim construction, to balance two factors that pull them in opposite directions. The factors are a) reasonable legal certainty (for those reading the claim to find out whether or not they infringe) and b) a scope of protection for the inventor which is “fair” to that inventor. What’s “fair”? Well, the scope of protection should be commensurate with the magnitude of the contribution to the technical field, as evidenced by the specification. So, when drafting that specification, before you file the patent application, better reveal that contribution, as clearly as you can.

    2. EPO Problem and Solution Approach to obviousness, de rigueur now for 30 years, which advantages those who, in their drafting, tie specific technical effects one-on-one to specific technical features recited in the simultaneously drafted claims (and gives no weight to technical effects not so picked out in the app as filed and prayed in aid of validity only belatedly).

    3. No Binding Precedent, freeing up infringement courts to do justice, each time they have a claim to construe.

    4. An overall feeling that if you, when drafting, hold back or dissemble, sooner or later you will live to regret it.

    5. A deliberate decision by those who drafted the EPC in 1973 to exclude a want of clarity as a ground of revocation, post-issue. The consequence: 30 years of ever-increasing public pressure on the EPO to let through to issue only claims that are unambiguously clear and fit for purpose. Boy are those EPO Examiners hot on this topic, these days.

    I am sure you will tell me, if I am deluding myself.

    And is the professor following still, I wonder?
98. 22

    You know Malcolm, this case will tend to send the proverbial shot across the bow to many practitioners who use this kind of functional claiming while avoiding 112, p. 6. Without the saving grace of 112, p. 6, the claims need to be fully enabled for the full scope claimed.

    It is a wonder that the PTO does not routinely reject such functionally expressed claims under 112, p.1 as not enabled.
99. 21

    Nice take-down of functionally-claimed balooney by Rader.

    1. A device forming a junction having a resis-tance comprising:

    a first electrode having a first magnetization di-rection,

    a second electrode having a second magnetization direction, and

    an electrical insulator between the first and sec-ond electrodes, wherein applying a small magnitude of electromagnetic energy to the junction reverses at least one of the magneti-zation directions and causes a change in the resistance by at least 10% at room tem-perature.

    MagSil’s difficulty in enabling the asserted claims is a problem of its own making. See Liebel-Flarsheim Co. v. Medrad, Inc., 481 F.3d 1371, 1380 (Fed. Cir. 2007) (“The irony of this situation is that Liebel successfully pressed to have its claims include a jacketless system, but, having won that battle, it then had to show that such a claim was fully enabled, a challenge it could not meet.”)

    This court holds that the asserted claims are invalid for lack of enablement because their broad scope is not reasonably supported by the scope of enablement in the specification. See Fisher, 427 F.2d at 839. MagSil did not fully enable its broad claim scope. Therefore, it cannot claim an exclusive right to exclude later tri-layer tunnel junctions that greatly exceed a 10% resistive change. Id.

    Greed. And child’s play, really, to predict the outcome. The defendant’s should be completely reimbursed for the time and money they spent defending themselves against this g—b-ge.
100. 20

     Fish, you are clearly correct, sir.

     See, MAGSIL CORP v. HITACHI GLOBAL, that came out this morning.

     /media/docs/2012/08/11-1221.pdf
101. 19

     Not to disappoint you, Ned, but those claims should be rejected under Section 112
102. 18

     Help! My patent application is “under water.”
103. 17

     One more point. Why would the claims in O’Reilly v. Morse declared to be “abstract?” Because they literally covered all ways of communicating at a distance using electromagnetism. What if the claims had instead said, “I claim all ways of communicating at a distance using electromagnetism including the disclosed means?”

     I think we know the answer to that question. But many claims today in US patents are essentially this.
104. 16

     One sees the debate about indeterminancy today being carried out in claim construction debates at the Federal Cicuit. Can a claim cover more than what is disclosed? They literally do, as it is often said the disclosure is of embodiments but the claims define the scope of protection. The two are not necessarily the same.

     Back in the day, the Supreme Court had the doctrine, repeated in any number of cases, that a patent covered the disclosed embodiments, equiivalents thereof, and nothing more. We have long lost sight of that doctrine in US law.
105. 15

     Max, rather that ask us why claims are vague in the US, can you tell us why claims are less vague in Europe?

     The complaint about vagueness in US claims is very old. The courts battled vague claims from their very beginning in 1836, and before that, similarly battled vague specifications that did not identify the invention with any particularity.

     Like a well known and very old profession of questionable virtue that cannot be outlawed despite best efforts, our efforts to battle vague claims never ends the because there are so many who use them to their advantage.
106. 14

     “the rhetoric of patent policy”

     You lack antecedent basis and in fact this does not seem to exist.
107. 13

     I think this statement is wrong:

     “Conceptually, this standard improperly compares the boundaries of a complete legal right (patent) with a single doctrine (trespass) that constitutes only one part of another legal right (real estate).”

     If anything the comparison is of infringement to trespass and a patent claim to the legal property description of a deed (or land patent ss it’s called in some places).
108. 12

     Not just you, me and the wall, A. Don’t forget Uncle Tom Cobleigh an’ all. Question is: is it also news to the Federal Circuit?
109. 11

     Adam,

     MaxDrei is just making his usual vacuous comments.
110. 10

     Thanks for the comment, and there is real truth in what Mr. A says, but it’s not unique to patent law. In contract law, for instance, contracting parties often leave “gaps” in their contracts, or specific terms are left ambiguous in the hope that there won’t be a problem down the road, because if one of the parties pressed for precision, this would be a deal breaker. This is why there are “gap filler” rules in contract interpretation, which are similar in some respects to the substantive and procedural rules that the courts have developed over the past two centuries for construing terms in specifications and patent claims. It’s also why there are many, many contract lawsuits that arise from such ambiguous terms (such as the famous contracts case involving the meaning of “chicken” as used a contract between a wholesaler and a retailer).

     As I mention in my paper, the most important question to always ask in identifying a practice or making a statistical clim about anything in the law, or in life for that matter, is: As compared to what? If one assumes perfection as one’s baseline in identifying or evaluating a practice — zero errors, zero externalities, etc. — then one is committing the nirvana fallacy. It’s always about trade-offs between real-world institutions. So, the question here would be: Is there more improper uncertainty placed in patents by patent applicants than in other legal documents, like contracts, wills, or even statutes and regulations? The problem is that we just don’t have the answer to this all-important comparative question. And this is one of the issues that prompted me to write this essay.

     Again, thanks for the comment, and I hope you find the essay of some interest or value.
111. 9

     Point taken. I see that, yes, that would be silly.

     It was just that I liked so much the expression “infected with vagueness and indeterminacy”. I wanted very much to know who to thank for it. I wasn’t sure, but now I know. Thank you Professor Mossoff.

     Do any of your many people yet know the source of the infection? Is there still time to stop it spreading world-wide?
112. 8

     My brevity results from focus on correctness, not persuasion.
113. 7

     Thank you for reading my Conclusion. I appreciate that at least you read a portion of my paper, but if you’re looking for the many, many citations and quotes from people who express the view that patents are infected with vagueness and indeterminacy, I recommend reading at least the Introduction and at least Part II. Of course, the Conclusion is where I simply restate and summarize the conclusion of my argument. It would be a little silly for me to reproduce all of the evidence for my claims in my Conclusion — I would end up reproducing the entirety of my paper all over again.
114. 6

     Between you and me and the wall, patent owners and prosecutors do not always WANT their patents to be entirely clear. Keep the competition uncertain, or even unaware.
115. 5

     Wow, that’s convincing.
116. 4

     There is a world of difference between “room for improvement” and structural changes made with unknown consequences.
117. 3

     It is academic, he is an academic.
118. 2

     I have had a look at Mossoff. In his Conclusion he writes:

     “The problem, according to many, is that patents today are infected with vagueness and indeterminacy.”

     I see no footnote that tells who these “many” people are. Who are they?

     But if many people are right in this, and if Mossoff himself wants to research the point further, he could do worse than to explore why it is that patent applications expertly written for use in the US courts are indeed so infected, while those expertly written for use in courts elsewhere are not.

     What I’m driving at is this. In the rest of the world, if in your drafting you don’t commit to what your invention is, things will likely go badly for you in the courts. In the USA though, if you do so commit, your litigator will not be pleased with you.

     The professor doen’t know why patents today are infected with “vagueness and indeterminacy”. Somebody here tell him, please.
119. 1

     Haven’t read Mossoff on trespass yet but can’t resist the temptation to start the thread.

     Back in 1973, those writing the European Patent Convention (from scratch) had to reconcile two contradictory models, the UK and the German, of how a European patent shall define a “scope of protection”. They found a compromise (The Protocol on the Interpretation of Art 69 EPC) which, after 30 years of jurisprudence, is delivering ever-better results, regardless whether the judge seized with the case uses a Doctrine of Equivalents (Germany) or not (courts in England).

     Suppose the protected area is like the green surrounding the hole on a golf course. German central claiming is like the claim defines the position of the hole (the “Best Mode” if you like) and the judge says whether the accused embodiment trespasses, ie is or is not on the green. English peripheral claiming simply requires that the claim define the location of the edge of the green.

     This is one reason why writing claims for Europe is such fun.

     ***

     Libertarians and Patents: Kinsella vs Mossoff (Dennis Crouch, 2012), reprinted below with comments:

     Libertarians and Patents: Kinsella vs Mossoff

     August 19, 2012 Dennis Crouch

     Libertarian writer and patent attorney Stephen Kinsella has written a critique of Prof. Mossoff’s Trespass Fallacy paper.  LINK.  Libertarian thought on intellectual property is somewhat unsettled.  Kinsella is one of the thought leaders of the modern anti-patent libertarians while Mossoff represents the pro-patent side.

     One of Kinsella’s basic arguments stems from the traditional libertarian support for individual liberties and strong private property rights.  When some third party holds a patent, that patent limits what I can do with my scarce private property as well as my individual freedoms.

     Hide comments

     217 thoughts on “Libertarians and Patents: Kinsella vs Mossoff”

     1. 217

        Purple is my idea of the RED ATOM BOMB!
        OK so don’t print that last poem. but not only did he decide my Fate with his buddies from Tennessee. but he also decided if i was going to get help he was in charge. Now I know that’s not 18 USC 2091? Anyone got any answers?
     2. 216

        Sounds like Sesame Street Barney, Ted, Ed, HRB.
        To Mass to Mass to speak to the PIG,
        Who only would let me speak,
        To ones like him I now have Figged,
        are now about to reep.

        He then lets go of the connection to Mass,
        To hide the path in the Map,
        And then he comes down to keep him again,
        To decide she don’t even get the Flap.

        They pay them so handsome. They think I’m a Dunce.
        They all drive me to drink.
        But now that I have the guide to the Map.
        Their all going to wish they did think!
     3. 215

        So if he wasn’t there, and he let another sit in, then it was done there before he got it back. But obviously he knew it had been done that is why he wouldn’t let go or send the Documents that were now under Statute 18 USC 2091. That’s why he’s leaving town. And I suppose he will be too, or worse!
        Probably all those terrible things done to me, belong to them two!
     4. 214

        * Or I didn’t get them at all!
        Someone told me once that MY CASE (without my knowledge, input or consent)had already been decided.
     5. 213

        Did he know I was never given copies of the Documents?
        Did he know that the Lawyer wouldn’t acknowledge that he was fired or give the documents to me, and that I had to go get them myself?
        Did he know what I didn’t?… That I had 18 USC 2091.
        If he knew that, then he knew obviously betwwen there and here all were being removed before I got them.
     6. 212

        Wrong.

        I CAN make the chair.

        I just have to get a license to do so.

        I can pay for the license OR, as I suggested, I can cross license my patented chair to the owners of the stool patent. They get permission to make the chair and I get permission to make things that include the stool. Since my chair is an improvement on the stool, I get them to pay me money in addition to granting me permission to use the stool.
     7. 211

        “We are opposed to aggression, so of cousre we opose the state.”

        Please tell me who is going to enFORCE all of the contracts you make with your “freedom of contract” if the other parties decide not to honor their obligations under the contracts. Because it seems to me that you’re all in favor of state enforcement, or aggression as you call it, when the agreement that is being enforced is one of your private agreements, but not so much when it’s an agreement between other parties, e.g. an agreement between the state and a patent owner that a patent owner will be given exclusive rights in exchange for disclosure. You may not like that the state has, on your behalf so to speak, entered into that contract, but your position appears to be that the state, as a representative of the people, doesn’t have the same “freedom of contract” that the people have. I find that position puzzling.

        I’m not trying to be snarky, I’m genuinely interested in your answer.
     8. 210

        Who was that shouting lun  atic?  Gates or the CEO of Big Blue?
     9. 209

        Useful Arts was intended to change its meaning, or were the Arts intended to change with progress?
     10. 208

         “ideas = scarce resources” – yah, just take a look at Hollywood…
     11. 207

         “Also, to the extent your action is reducing the value of my scarce resource equivalent (in essense, taking these scarce resources from me), why should that be permitted? You wouldn’t permit me to dump toxic chemicals on your property (i.e., scarce resource) — why should you be able to do the market-recognized equivalent to a scarce resource?

         Are you saying that the free market is wrong?”

         I don’t think that’s how they look at it. I think that they would in fact say that an owner of property could dump toxic chemicals on his own property. To be “true” to their logic, society must give way to the ultimate full liberty of the individual. The reality that this just cannot be done and have a functioning society simply does not matter.

         As long as the libertian philosophy inhabits fantasy land, justice and free market are completely malleable concepts that need not reflect the reality of actual human nature.
     12. 206

         “Clearly, the discussion is not about what is real or what is the current state of law.”

         Well, at least you seem to realize that you are talking about an idealized and unreal setting. The next step is to realize that basic human nature would have to be nullified in order to actually apply your philosophy. Don’t you think your energies would be better spent on contemplating philosophies that have a chance at implementation rather than (pipe)dreaming your life away?
     13. 205

         “Same with your portrayal of damage due to market value. That is an abstraction based on less than personal ownership of all sticks in the bundle, and just reflects an effort to expand control beyond what one truly owns.”

         If you Libertarians believe in the “free market,” then you should believe in what the market tells you. The market places the abstract concept of “value” on just about everything. Moreover, you can translate that value to your precious “scarce resources” anytime you want. If the market is saying “ideas = scarce resources,” why are you ignoring it?

         Also, to the extent your action is reducing the value of my scarce resource equivalent (in essense, taking these scarce resources from me), why should that be permitted? You wouldn’t permit me to dump toxic chemicals on your property (i.e., scarce resource) — why should you be able to do the market-recognized equivalent to a scarce resource?

         Are you saying that the free market is wrong?
     14. 204

         Ned,

         As posted by IAGTLDNGBWNT, both of your reasons are grounded in fallacy. And this too is not something new (I have addressed both of these fallacies in the past); so we peel back the onion one more layer and ask why you believe in these fallacies as a reason to pursue your agenda?
     15. 203

         “The problem with both your resonating argument and your zoning argument is that both require me to sacrifice a few sticks out of my bundle of property rights, in direct contradiction of the libertian philosophy.”

         Sorry … that that’s price of being in a civilization. As I said, freedom isn’t free. Moreover, there is no such thing as absolute freedom — which is the apparent Libertarian goal.

         Every law on the books in some way causes you to sacrifice a few sticks out of your bundle of rights. That’s just the cost of doing business. I am comfortable with this system as are the vast majority of other people.
     16. 202

         Same with your portrayal of damage due to market value. That is an abstraction based on less than personal ownership of all sticks in the bundle, and just reflects an effort to expand control beyond what one truly owns.
     17. 201

         The problem with both your resonating argument and your zoning argument is that both require me to sacrifice a few sticks out of my bundle of property rights, in direct contradiction of the libertian philosophy. While both may be “true” in the sense of what is real and what is the law now, both would be changed if full individual liberty were to be achieved. Thus, both arguments are nullified. Clearly, the discussion is not about what is real or what is the current state of law.
     18. 200

         He should worry. He’s been hoodqwinked by the one he is shilling for.
     19. 199

         Ned: “Anon, would that we had a simple, clear definition of BMPs. If so, I think Bilski would have banned them.”

         And then what’s next?

         Create a definition of medical methods and ban them too?

         Software methods next?

         Nice way to chop away at the independent status of the process category. But you still have not given a reason why it should be done.
     20. 198

         Refreshing. Thanks Ned.
     21. 197

         “We already know that this business is way too complex for you, suckie.”

         Yeah, way too complex to know the difference between a composition and a manufacture.
     22. 196

         “Prometheus was much closer to my “art field” than Myriad, suckie, and I was very clear there that it didn’t matter whether they went down under 101 or 103. That’s because the rationale for tanking the claims is identical regardless of which method is used.”

         Yes you were very clear that it didn’t matter and thanks yet again for a lovely 9-0 self defeat because it was unanimous that the Court very much thought it mattered whether it went down under 101 or 103.

         What a chump.
     23. 195

         Mr. Kinsella:

         It’s all always about ownership of scarce resources.

         Your argument rests on a foundation of preferences, and assertions, that’s all. It is lopsided. It is merely your assertion that ideas cannot be protected. Why? Because you say so. Apparently it has something to do with scarce (rivalrous) resources. Of course, we live in a finite world and therefore some resources will be rivalrous. So what? You’ve chosen a definition with which to try to hammer the world, including its humans, into conformity. I’m sure you will remember enough mathematics to have seen the following sort of incomplete definition: For all points, except at x = a. My definition agrees with yours…except in the case of x = IP. In that case, IP is precisely property. Thus I’ve have demolished half your program.

         But in any case we all know that it not the ideas that are protected. You and I and everyone on the block may have the same ideas and there is nothing anyone can do about it; there is no protection of ideas. Rather it is the manifestation of the ideas in some tangible form that supports IP protection. But let’s just call these “ideas” for the sake of discussion.

         Your point is, despite your denial, not that ideas can’t be protected (of course, you’re incorrect…go check a law book), but that they should not be. And why not? Your argument, and here it attains its most lopsided quality, is that someone who is prevented from practicing a patented invention without license from the patent owner, is being prevented from using his own property. And that’s baaaaaad.

         But your bias against the creator of ideas in favor of the owner of the tangible property required to implement them without permission stems merely from your inability to find a definition of property that encompasses “ideas”. That’s it. A mere triviality. So I gave you one. Now IP is actually property. And if “ideas” are property, then they pre-existed the tangibile property you neverthless hold paramount. Problem solved.

         Why do you countenance the theft of my “ideas” merely because you’re property enables you to do so? I assume you are not opposed to laws prohibiting the use of your hammer against my windshield without my permission. Presumably you will argue that a tort or trespass has been committed. Again, this is just due to the recognition that property is involved. So to ease your discomfort, simply go back to my definition of property, and problem solved.

         What your analysis fails to identify is that it is morally WRONG to steal someones ideas. It is baaaaaad. Period.

         That’s why it is WRONG to photograph my plans and implement them without my permission merely because you own the camera and the manufacturing capacity to build a device according to my written description.

         That’s why it is WRONG to plagiarize.

         That’s why it’s wrong for you to affix my trademark to my invention and to claim them both as yours. That’s why it’s wrong to claim my “ideas” as yours and to implement them merely because you have the capability to do so. It’s just WRONG. It is theft, and most humans who are not steeped in intellectual con games understand this.
     24. 194

         Not as good as the other German representation, but still worth a look:

         link to youtube.com
     25. 193

         “As I just explained, just b/c you innovate does not mean your innovation does not also infringe someone’s patent.”

         Non-sequitur. This is not an argument. If you understood patent law, you would know that and not try to kick up dust with it.

         Your posts at 5:08 AND 7:14 PM are not arguments. It does not address the fact that you get sued for copying and not for innovation.

         Try again.
     26. 192

         The problem you are not addressing is that this copying and “fair is fair” disincentivizes the effort of innovation, and places other market factors in control – market factors such as wealtha nd size of market – you ignore the resultant absolute free market pitfalls and pretend that they dont exist. Didn’t you study the robber barrons in school?

         Let me guess, public school?
     27. 191

         “Our FF authorized patents for the useful Arts, not for methods of determining abstract concepts. There is a difference.”

         Great. That’s both a wonderful non-sequitur (no one is talking about abstract concepts) and totally misses the point that you don’t understand what the useful arts are (as well as illustrate the incorrect time reference – useful arts are not locked into the time of the forefathers). For the time aspect, once again go back and read Risch’s article to see that business methods have been acceptible throughout the country’s history.

         Further, patent eligible material was never meant to be locked into the forefathers timeframe as that would have been self-defeating for the very concept of innovation. The Courts have always understood this. Congress has always written the law to reflect this.

         “describe how to make and use”

         Again, with this canard? This example was refuted on a previous blog thread and there is no reason to revisit it again.

         For something not having a clear definition, you are all too eager to bar all of them at the front gate.

         A bit too eager. What’s in it for you?
     28. 190

         Lols as the shiller Ned is wondering about someone else’s shilling connections.
     29. 189

         You get sued for making, using, selling, or importing a device that infringes on another’s patent. As I just explained, just b/c you innovate does not mean your innovation does not also infringe someone’s patent. In fact since all innovation, and I mean all innovation, builds on and borrows from previous ideas, then only that innovation which builds on stuff more than 17 years old, is free from suit. If you take into account anything that has arisen in the last 17 years, it’s possible for your innovation to be infringing, as well as to qualify for its own patent protection.

         I realize that this is arcane, and nonspecialists have a hard time grokking all this. However, this is more reason to be cautious in pontificating about complicated matters you do not undersatnd, and even more reason to be humble and cautious before talking about serious policy matters that depend on a correct understanding of the law that you think you understand and think that you are in favor of.

         Further: what is wrong wiht copying? Suppose you widen the aisles in your grocery store to attract customers. Suppose you offer computer support service with your computer sales? Now if these things are popular with customers, you make a profit–and the profit you make attracts competitors like chum in the water attracts sharks. That is the way the free market is supposed to work: you do something that is unexpected, and thus you make an above-interest-rate level of “profit”–and remember, profit is a temporary aberration that is supposed to be driven back down towards the natural interest rate, after competition is attracted. When this happens, vendors, manufacturers, entrepreneurs, innovators, etc., have to keep improving the product or service offered to consumers, to keep revving up their profit margins. This is the way the market works. Thsi is exaclty why the patent monopoly, specifically designed to protect people from competition, bogs down the free market dynamic competition/allocation process. It is a slower version of mercantilism or protectionism. It is like pouring molasses all over the economy, to “slow things down.” It’s like the normal interaction and speed of the free market bugs entrenched conservative interests. Why should they have to work so hard to maintain their temporary profit margins? Shouldn’t they be able to double it or add a decade to it? AFter all, fair is fair!
     30. 188

         Our FF authorized patents for the useful Arts, not for methods of determining abstract concepts.  There is a difference.

         What is MADE by man is a key.  If it is made, it is physical.

         The laws require we describe how to make and use.  How does one make 1 + 1 = 2.  Regarding use, clearly math is broadly useful.  But have you described even one use?  And, if you describe one, why should your patent cover more?

         I ask you to read O’Reilly v. Morse one more time.  It is instructive.  Abstract concepts need no specification, yet they cover every useful application.  This form of patent is not within the patent laws.
     31. 187

         “Not everything has to be innovation.”

         Non-sequitur

         Your post at 5:08 PM is not an argument. It does not address the fact that you get sued for copying and not for innovation.

         Try again.
     32. 186

         As to counterproductive, clearly you do not understand those arts Ned, nor the progress made in society due to the likes of Deming et al who did not treat business methods like the traditional by guess and by golly but applied science to business management (yes, that same sense of applied as in the rest of the patent-eligible applied sciences).

         As to not within the Useful Arts, apparently you do not understand what the UA covers (see the Patently-O guest post by Michael Risch link to patentlyo.com )

         As to “need to incent” that is a canard that patents are only for those things that “need.” Progress is a given in the constitutional mandate and the charge is to promote, nowhere is there any notion of “promote only those things that need patents.” You have drunk too much of the anti-patent koolaid.
     33. 185

         yet it seems to matter very much in cases that touch your art field….

         Prometheus was much closer to my “art field” than Myriad, suckie, and I was very clear there that it didn’t matter whether they went down under 101 or 103. That’s because the rationale for tanking the claims is identical regardless of which method is used.

         As I noted in the more recent Whitserve thread, the “composition” claims in Myriad present completely different issues. New, non-obvious and useful compositions that are properly claimed (i.e., structurally claimed) should be eligible subject matter, period. 102 and 103 are perfectly suited for ridding the patent system of composition claims that are too broad.

         Composition claims such as those at issue in Whitserve, however, are really more like method claims in that the “structures” recited just window-dressing for the actual “invention” which is an abstract process of information storage and retrieval that would never be considered eligible but for that window dressing.

         We already know that this business is way too complex for you, suckie. Not sure why you bother anymore except to create a dust cloud.
     34. 184

         Anon, would that we had a simple, clear definition of BMPs. If so, I think Bilski would have banned them.

         Now why?

         1) Not within the UA; and
         2) Counterproductive.

         I think patents in the area do not spur any kind of innovation that we need to incent. Rather, such patents only serve to increase economic headwinds.
     35. 183

         There is nothing wrong with copying. Or learning. Or emulation. Or competing. Not everying has to be innovation, and even innovation involves copying, borrowing, and building on previous insights others had.

         See e.g. link to c4sif.org
     36. 182

         Les, it is just black-letter patent law. Ask anyone. A patent gives you no right to make or sell anything. Only the right to stop others. For example suppose there is a patent on a stool: a sitting apparatus having a body-supporting seat attached to at 3 to 4 weight-supporting legs. Now you add a back to this, making it a chair: you can get a patent on a chair: a sitting apparatus having a body-supporting seat attached to 3-4 legs and having a substantially vertical back-supporting member extending from an end of the seat member.

         Now if you invent this, you still cannot make your chair. Why? Because it infringes the stool patent.

         And so on.
     37. 181

         After reading about Google’s progressive, anti-patent, open source agenda on the Patent Ethics thread, and of Google’s strong support of academics and bloggers promoting its views, one begins to wonder if Kinsella has any relationship with Google.
     38. 180

         “The State cannot seek to advance the welfare of anyone if doing so infringes on my ability to do absolutely anything at all to my property.”

         I assume you intended to use “should not” instead of “cannot” — because the State can prevent you from using your property to infringe another person’s intellectual property (or even real property)

         I can see how you are attracted to this philosophy. Few people like to be told what to do. However, that is the very nature of laws – to incentive good behavior and disincentivize bad behavior. Our intellectual property system is intended to incentivize the creation and use of intellectual property. Society, as a whole, benefits when artists, writers, and inventors are able to protect their intellectual property – they produce more, and society has determined that these activities are worth incentivizing.

         The problem with your arguments is that they don’t resonate. I can tell the man on the street that when Bruce Springsteen or Carrie Underwood records a song, they should be compensated and provided some protection under the law to keep people from illegally copying that song. The vast majority of people agree that Bruce or Carrie should be compensated. Similarly, if I told them that if an inventor invented the next “IPad,” almost all would agree that the law should protect that invention. That is an easy sell. It becomes much easier when I tell them that eliminating intellectual property rights would greatly reduce the incentive of these artists to produce their work – which means we (as society) would get less of it.

         I have yet to see a full-reasoned explanation as to how inventors/artists/writers can realistically monetize their intellectual property (which oftentimes requires a substantial investment in “scarce resources”) when that intellectual property is provided no protection by your system.

         “the original is still whole and undamaged and no harm to the original property has been done.”
         Wrong. The value of that original property has been decreased, and “value” is characteristic of the original property, and the value of that property is something the MARKET cares greatly about.

         If I live in the suburbs and you want to put a pig farm next to my property, in most instances the State (e.g., via zoning regulations) is going to prevent that from happening. Your pig farm is going to decrease the value of my property. It may not “physically” harm a single square inch of my property, but the value of my property will be decreased by the presence of your pig farm. Here, the State allegedly “infringes on [your] ability to do absolutely anything at all to [your] property.” Of course, you may be the kind of guy, after buying a home in a nice residential area, who might welcome a porn store open up in the house next door. However, most people like settled expectations as to the character of the neighborhood they live in.

         Sometimes in life you have to give something to get something. Our laws (including laws regarding intellectual property) provided settled expectations about how certain transactions are to be undertaken. This is both efficient and incentivizes the activities covered by these transactions. Where everybody has settled expectations as to how things work under the law, you don’t need to lawyer up. What I’m sure the Libertarians don’t realize is that the only mechanism that they permit to protect intellectual property (i.e., via contract) requires a substantial amount of lawyering. They never account for this cost. Moreover, because everybody’s lawyer is going to do things different, you cannot obtain an economy of scale because each contract will have to be individualized for the given circumstances. Great for the attorneys but really, really bad for the idea generators.
     39. 179

         A legal question
         Isn’t it a conspiracy when you hire someone to handle a legal problem at a special court. And then because someone lsts two addresses that are unneccessary to the Case, and another person capatalizes on that? Using one address for one of the Pair and then having the other mailing address redirected to the person that has refused to give the files and the POA to the client they are claiming POA on?
         And here is a DUH question
         And the Atty. still is claiming they gave the files back to the client? Wouldn’t the client have fired the Atty. with the POA the Atty won’t give back if in fact the Files were given back?
     40. 178

         Actually, Stephan, if the small fry invent some critical new technology that Apple and others need, their patent on it allows it to compete. They can leverage the value of the patent into a cross license if they want to engage in manufacture and production of cell phones. Alternatively, they can exclusively license one of the big companies, or non exclusively license all.

         The patent system justifies and incents investment in small-fry R&D.

         What really prevents the small fry from entering the market is the capital requirement to produce and sell a product globally.
     41. 177

         Dale, most libertarians are strong proponents of personal and economic freedom. I am reading Kinsella, I think, to be consistent with this view. He believes, fundamentally, that economic freedom is more important that protecting intellectual property.

         This does not mean that libertarians do not believe in property rights. One does not need to leap from economic freedom to a complete absence of private property rights. That is nonsense.

         The debate here is a limited one: economic freedom brings competition which spurs innovation all by itself, at least in most industries. For such, do we need a patent system at all?

         We certainly we do, I think, but only with certain kinds of inventions: chemicals, drugs and anything of that ilk that requires huge investments to initially develop, but which can be ripped off for a song.

         Patents are also needed for brand new products and immature industries. But it is not all that clear that patents are needed for large enterprises competing in established markets. Not at all.
     42. 176

         Yes, we have all asked this question of Ned for years and he ducks it. I simply have come to the same conclusion of the commenter, “The Shilling Shall Continue” .

         Ned is a Shill! He is most likely being paid to blog against business methods and software patents. So no amount of logic, law, or reason will ever change his mind or his rhetoric.
     43. 175

         “they just assume that the patent system actually contributes to net wealth, though they have no evidence for this at all.”

         Hello Stephan:

         Actually it is a proven fact, that has never been successfully refuted in the history of this blog that,….

         “Every new patent issued to a new entrepreneur creates at least one new job.”

         Now if you don’t believe in jobs and capitalism then thats a different debate. But please don’t ever say again, that patents don’t contribute to net worth, because they do. At least in America.
     44. 174

         anon, we fundamentally agree that government is essential to establish and protect rights. Without government, we have the rule of the brute, might makes right and the like, not some fairyland as depicted by philosophers of various agendas.
     45. 173

         You didn’t prove any of that. You just asserted it. You are mistaken.

         Your smaller companies are only dissuaded from using the patented subject matter. They are free to innovate in this area and get patents of their own. If necessary, they can license, or better yet cross license with the big boys, charging them a net royalty for using their improvements. Thereby funding further research and leap frogging beyond the slow behemoths and embodying the promotion of useful arts called for in the constitution.
     46. 172

         What a bunch of rubbish.

         You do not get sued for innovation. You get sued for copying. I hope you know the difference, but judging from what you post here, you do not.

         Innovation – especially in the face of others and their patents (and against the big corps) is what levels the playing field and allows the smaller companies to compete. Innovation is not (generally) beholding to the market power and size that Big Corps have. You really need to understand this stuff if your theories interact with it.
     47. 171

         It’s easy to see how this happens. For example if Apple and a couple other big companies have patents on smartphones, smaller companies are dissuaded from competing. Thus they use their capital for other endeavors. They don’t waste money innovating in the smartphone area, as they know thy will be sued to oblivion. Thus they make no innovations in this area. This is really easy to see.

         As for piggybacking–if microsoft makes information public others should of course be free to act on it.
     48. 170

         “Otherwise, they face the risk losing any control of their book. Absolutely brilliant”

         You misunderstand. There is no control of anything outside of what you can physically control. If a book is out there, there is no ownership of any “ideas” or “expressions” in the book. Since “ideas” and “expressions” cannot be owned, they are free to anyone, and everyone has a right to create (using their own owned materials) the exact same “ideas” and “expressions.” Even if such creation is only exact copying. If I take a book (or any physical thing) and make an exact copy with my own material, the original is still whole and undamaged and no harm to the original property has been done. The State cannot seek to advance the welfare of anyone if doing so infringes on my ability to do absolutely anything at all to my property.

         In fact, even giving credit to an earlier author is a form of misappropriation, as there is no credit that can be attributed to free “ideas” and “expressions.”
     49. 169

         “Or what if it showed that patents depress overall innovation,”

         Patents don’t depress innovation, the suppress copying.

         If you are going to continue to suggest otherwise, you should at least suggest a hypothetical where a patent allegedly suppresses innovation.

         If you are going to pull out some example, such as a patent prevented some software developer from using a data storage format, our reply will be, no it didn’t, failure to pay a reasonable royalty prevented it. If you want to piggyback on Microsoft’s success, that’s fine. Just pay for the ride.
     50. 168

         6,

         The problem is not you being facetious, it is that “private army” is exactly what would happen if the State were to be eliminated. The fact that you even think that you were only being facetious shows how little you understand of the topic under discussion. Your immaturity is like a Saturday morning cartoon.

         If you create a vacuum of power, that vacuum will be filled. If you remove the checks and balances that only can be provided with a State-like power, the ruthless will ascend who care not at all for your nice platitudes of “let’s share equally” or even “full” respect for individual property rights (no matter how many sticks are conceived as being owned in that bundle).

         There is a reason why there are no real world examples of a non-State powered society that would ascribe to the ideals as provided by Kinsella: such simply is divorced from reality and basic human nature.

         Theories that ignore the basic human nature that some don’t care for others, that some won’t stop with having only what they need destroys the credibility of the those theories before the ink in which they are written is even dry.
     51. 167

         “Doesn’t matter which.”

         And yet it seems to matter very much in cases that touch your art field….

         Why the dichotomy?
     52. 166

         “I am seeing no serious or civil inquiries”

         Stephan, there have been plenty of serious and civil inquires, but for which you have merely dismissed as “wrong,” “not an argument,” “not serious,” “not civil” (and notably contrasted with your at least equally non-civil discourse), asked for fallacious proofs, or simply ignored while you repost the same mantra regardless of what is provided or asked of you.

         I think that it can be said that everyone gets “what” you are selling (you can stop hawking the links). It’s the “why” and “why that” that have been left unanswered. In other words, the point is not “learning from you” as in blindly accepting what you say because you say it, the point is you defending what you say and whether you have connected your lofty ideals with the real world.

         I hope you realize just out of touch you come across.

         Sincerely, there is no “insincerity” in those opposing you, and to characterize it as such is intellectually dishonest. And trust me, your time is no more precious than the time generously given by those that oppose your views.
     53. 165

         Because a “process” by itself is abtract (whatever that means).

         In Ned’s mind, heavily influenced by English common law which did not even allow process patents until late in its history, process patents are not a legitimate category even though they are a fully listed and undifferentiated category in the US law as written by Congress.

         This bias comes across quite clearly in both as GOTSP notes: “[Ned’s] treat[ing] the category only as a conduit to obtaining something, some ‘hard good.’” and Ned’s relentless proselytization of MOT, even in the face of back to back Supreme Court decisions that have virtually destroyed MOT as anything but a clue – and definitely not a requirement (recognized as being neither neccesary in Bilski nor sufficient in Prometheus).

         Ned, I believe what Business Method Pro is trying to get from you is two-fold:

         1) why do you insist on treating the enumerated categories differently (the artifical distinctions between process and hard goods), and

         2) then why do you attempt to place a (particular) entire sub category of a (particular) enumerated category off limits (as exemplified in the Bilksi/business method and Prometheus/medical method logic)?

         It is this highly selective behavior that is the question.

         This is not a new question.

         In fact, this sounds in my question that you evaded even acknowledging for over a month and for which you have to this day not answered: Why do you have an agenda against business method patents?
     54. 164

         Can you imagine…. How did he get away with this?
         I’ve said this before, White Out should be banned on legal Documents, and if found out the do’er should have to pay 50,000 immediately to the local food bank or animal shelter. No ifs ands or buts!
     55. 163

         “why should I have to prove the current system is better?”

         Is it because challenging you to prove negatives (or prove impossible alternative universe settings) while mouthing “cause and correlation” is seen as an easy dodge from actually addressing the fact that not one single modern advanced society has bought into the massive crock of shtt that Kinsella is selling?

         Is it because Kinsella wants to mischaracterize anyone pointing out this disturbing fact as either trying to say the law can never change (no one has ever said that) or the idea cannot be discussed (oddly, as the idea and its non-implementation in the real world are trying to be discussed, but a particular fact keeps being dodged)?

         Or is it because the duplicity of being uncivil by outright dismissing others views as “wrong”, and yet hiding behind a “let’s be civil” shield when the discussion turns to as to just how principled Mr. Kinsella is in his quest for others to forego legal rights but he himself is not willing to risk anything?

         Is it because the man does not back up what he says, or because the man cannot back up what he says?
     56. 162

         “How do you know all this because a few engineers “told you” something?”

         No … a sophisticated businessman and entrepreneur, who has headed several large companies, has told me these things. This is somebody that deals with real investors and understands what it takes to attract capital.

         “There always has been and always woudl be *some* investment (say, level X), even absent IP.”
         The exception doesn’t prove the rule. This is irresponsible. This is not serious arguing at all.

         “In fact, even if you were right–why not have X+Y+Z innovation, by having tax-funded prizes.”
         No … that is even a worse system – one that you would detest even more. Thus, not worth discussing.

         “And what about fields that are not now covered by IP–like, say, fashion, perfumes, food recipes… must they also be covered by new forms of IP? Where will you stop?”
         Really?? Fashion is covered by copyright. Although I know of no case, I suspect that perfumes could be protected by copyright as well (actually, they are in the Netherlands at least). As for food recipes, I have seen patents for food products. You do hold yourself out as an intellectual property attorney, right????

         “and if a 17 year patent, and a 130 year copyright, stimulate Y additional innovation/creation, why not increase them to 50 and 500 years, or more, to squeeze a bit more out? and if billion dollar fines and small prison terms as now only help a bit, why not impose the death penalty for copyrgiht infringement? Surely that would help stimulate more innovation?”
         You call this argument?? This is mindless blathering. As you very well know (or should now), the patent system attempts to straddle the fine line between encouraging disclosure (by rewarding a patent) and not discouraging follow on inventions – by limiting the term of the patent. FYI – you do know that the whole “17 year thing” was changed to 20 years in 1995??? As for copyright protection, I’m untroubled by very long copyright terms.

         “Ah. I see. The ultimate conservative argument. Whatever is the law must stay the law. The slavery abolitionists heard the same thing.”
         How predictable … I knew you were going to respond exactly that way. In the English law system, the right to a trial by one’s peers was originally established 800 years ago. Are you going to be questioning that system as well? Do we need proof that this is the best system?

         “It’s really telling [blah, blah, blah, blah, blah]. This is disgraceful.”
         By the way, I really didn’t read the “blah, blah, blah, blah, blah.” I skimmed over it, realized the ranting for what it was and purged it from my memory. Nice job – way to get your points across.

         “The purpose of law [as I want it to be] is not to ‘incentivize’ people.”
         There, I fixed it for you. The law is all about incentivizing people to do the right things (or at least not the wrong things). I could probably tell that to a 5th grader and they would likely understand that concept. If you have kids, raise them without putting any structure on them – i.e., allow them to exercise their personal freedom anyway they choose. Tell me how that turns out.

         “But thre is no rason to think it would not”
         Except that your analysis is extremely superficial and evidences a complete and utter failure to seriously consider the consequences of what you propose.

         “The movie Return of the King cost 94 million US dollars to make. On opening weekend, it grossed 199 million. That’s over a 100% return on investment before a digital copy could be fileshared in the wild.”
         You realize that gross receipts is not net profit? Wow … and you call me ignorant??? This isn’t just a slip of the tongue, you repeat it when you state “you practically never, ever, see the hundred-percent return on investment on Wall Street financial derivatives that you can make on just opening weekend for a movie production.” Your ignorance of financial matters is astounding. For your sake, I hope you were simply just trying to pull a fast one with the numbers. Oh, I see somebody else wrote it but you put your name on it. Regardless, if you cannot spot a error like that, then that is pretty sad state of affairs for you.

         Regardless, in your hypothetical, why would the movie theaters agree to pay for copies of the film. Once the film has been released to a single party, that party is free to distribute to whomever they want for whatever they want. Sure, they would have a contractual relationship with the studio, but if it is a shell company designed to dupe the studio, then the studio will receive nothing after the shell company declares bankruptcy. Also, all it would take is a SINGLE copy to slip out and the whole $200M investment is out the door. Wow … your economic system is something everybody else is going to want to emulate. Invest $200M and get nothing in return. Oh wait … you don’t care about incentivizing certain behavior – you are more than happy to have us devolve into a primitive culture.

         Let’s not even get into pharmaceuticals and permitting a company to profit from the $$$$$$$ investment that is needed to take a drug to market. Let me guess, your response will be is that we’ll eliminate the “FDA” and the companies don’t have to go through this long approval process – buyer beware. Yeah great … the market will be flooded with ineffectual remedies – that is definitely a society I want to live in.

         BTW – I just looooved your post regarding how an author (e.g., JK Rowlings) could make money on her book. You are asking the author to be the publisher, the marketer, and the distributor. Did you ever think that perhaps the author is best suited for WRITING THE F’N BOOK and not the other stuff????? The author could work with other people, but with no copyright protection there is nothing to prevent them from taking the book and distributing into the wild, and once out there, it is never coming back. As such, you are forcing the author to engage in a number of activities that they (likely) do not have the aptitude. Otherwise, they face the risk losing any control of their book. Absolutely brilliant.

         “It approaches Rowling and asks her to consult on the movie and to promote the movie as the ‘best’ and ‘authorized’ version. They pay her $1M plus 2% of box office receipts, and she consults, helps improve it, and makes sure they don’t adulterate her plot too much etc.”
         Oh wait, 2% of zero is zero. Box office receipts assume that the box offices have any obligation to pay the studio – not (I addressed this above). I love these hypotheticals in which you take for granted the protections that other intellectual property provides so that the person from whom you’ve taken away other intellectual property can make money. Can we say intellectually dishonest? Perhaps dishonest is a little too strong – perhaps “intellectually shallow” is a better phrase.

         Half-baked … I said it before, and I’ll say it again. Frankly, until you come up with some fully-baked ideas, why should I have to prove the current system is better?
     57. 161

         I am bowing out of this thread now. I am seeing no serious or civil inquiries from the people still posting, and I have been more than generous with my time. The inscincere nyms attacking me are not serious, and anyone who is really interested in inquiring further can learn more from other material, not blog comments: For those who want to inquire further, as I have noted above, I and others have written in detail on all this. link to stephankinsella.com. I have spoken on it too — various interviews, lectures, and speeches here link to stephankinsella.com — including a 6 week online Mises Academy course, Rethinking Intellectual Property: History, Theory, and Economics
         link to academy.mises.org the audio and slides of which are online for free at link to c4sif.org. And there are various resources at link to c4sif.org
     58. 160

         “”First, you have no evidence that patents have been necessary for or even stimulated any net innovation at all.”
         “Except that I have had innovators tell me that they would have never formed the company they did except if they didn’t have the intellectual property to protect their innovations. Moreover, their logic was inescapable. Put succinctly, no IP = no investment. I’ve got my evidence …. next.”

         Anecdotal stories from people living in a state-distorted system is not evidence. This is not hard to see. As for: no IP = no investment: this is obvioulsy untrue. There always has been and always woudl be *some* investment (say, level X), even absent IP. So your argument, at most, is that withotu a state that grants monopoly privileges in some fields, there would not be *enough* investment–it would not reach level X+Y. But how do you know X+Y is enough? How do you konw Y is positive, and not negative (as I am sure it is)? How do you know the cost of the patent system is less than the value of Y? How do you know all this because a few engineers “told you” something?

         This is irresponsible. It is not serious arguing at all, obviously.

         In fact, even if you were right–why not have X+Y+Z innovation, by having tax-funded prizes–as people minded like you have suggested? see link to c4sif.org

         And what about fields that are not now covered by IP–like, say, fashion, perfumes, food recipes… must they also be covered by new forms of IP? Where will you stop?

         and if a 17 year patent, and a 130 year copyright, stimulate Y additional innovation/creation, why not increase them to 50 and 500 years, or more, to squeeze a bit more out? and if billion dollar fines and small prison terms as now only help a bit, why not impose the death penalty for copyrgiht infringement? Surely that would help stimulate more innovation?

         “you have the burden of establishing this. Isnt this fair, as a general approach?”
         “I’m not the one advocating a drastic change to an economic system that has been around for centuries. I cannot help it if your hatred of the state has blinded you to the fact that good things can come from the state.”

         Ah. I see. The ultimate conservative argument. Whatever is the law must stay the law. The slavery abolitionists heard the same thing.

         It’s really telling how weak are the arguemtns of people who pretend to be in favor of the IP system. They resort to ad hominem, evasion, ad hoc thinking, straw men, bromides, acontextual anecdotes. Wow, is that really the best you have? Obviously it is. If you had any clear evidence that the patent or copyright system produce net welfare gains for society, you would produce it. Yo udo not. You have no idea. You do not care. You just want to score cheap points. what is sad is you are literally just going throug the motions to defend a copyrgiht system which is being used to jail people (the guy who uploaded Wolverine movie got a year in prison; look at kim dot com; a student in England being extradited here and facing prison for having a website with LINKS to others’ websites) and to threaten Internet freedom in the guise of SOPA, PIPA, TPP, ACTA, and the like; and a patent system hideously distorting research and development, innovation, money, and retarding innovation to boot and imposing hundreds of billions of dollars of costs and impediments on the free market in the US–and you are just laughingly justifying this hideous distortions of free and civil human life with a few handwaves to “well a few engineeers told me” nonsense. This is disgraceful.

         “”Let me ask you: suppose we had a good study, and it concluded that the patent system produced $2B of additional innovation, but cost $30B. Would you still be in favor of it?”
         “When that study comes out, then you’ll have something to talk about. Until then, I’ll assume that the fittest economic systems have prevailed and that included the protection of intellectual property.”

         The studies to date are almonst unanimous: you cannot prove that the patent sytsem does any good, and there is strong reason to think it does a lot of harm. I have catalogued this. see link to blog.mises.org and link to c4sif.org

         but regardless: the burden IS on you guys to prove your case. The Founders never proved it. They had a hunch. It has never been verified. It cannot be. IP is immoral and wrong. It is antiproperty. It is a huge huge mistake.

         “So, how do you incentivize people to create something that can be easily copied?”

         The purpose of law is not to “incentivize” people. The very idea of law has been distorted by the modern unprincipled utilitarian ethos, as your comment shows. You could ask this about any business: why would I build a grocery store if someone can just compete with me?? Why would I make the first computer if someone can just compete with me? Etc. Thsi is life. This is the market. You figure out a way to make a profit by selling a product or service someone wants.

         ” How do incentivize people to create ideas/content/innovations? It is one thing to throw darts at the current system – it is another thing altogether to create a VIABLE system to replace it.”

         The viable system exists, underneath the state regulations: it is the free market. In such a system peopel have wealth and engage in innovation for any number of reasons. You are engaging in central planning.

         “Maybe you need a hypothetical to loosen your tongue. I’m a film producer. I want spend $200M to make the next blockbuster film. However, all the countries in the world all simultaneously removed all the laws on intellectual property – mostly based upon your writings. I have come to you to ask you how can I make money from this $200M investment. Explain to me, under this new system, how this can be accomplished.”

         the goal of law is not to make sure you can make your $200M blockbuster. But thre is no rason to think it would not. link to c4sif.org and link to c4sif.org
     59. 159

         “First, you have no evidence that patents have been necessary for or even stimulated any net innovation at all.”
         Except that I have had innovators tell me that they would have never formed the company they did except if they didn’t have the intellectual property to protect their innovations. Moreover, their logic was inescapable. Put succinctly, no IP = no investment. I’ve got my evidence …. next.

         “you have the burden of establishing this. Isnt this fair, as a general approach?”
         I’m not the one advocating a drastic change to an economic system that has been around for centuries. I cannot help it if your hatred of the state has blinded you to the fact that good things can come from the state.

         “Let me ask you: suppose we had a good study, and it concluded that the patent system produced $2B of additional innovation, but cost $30B. Would you still be in favor of it?”
         When that study comes out, then you’ll have something to talk about. Until then, I’ll assume that the fittest economic systems have prevailed and that included the protection of intellectual property.

         “But you guys have no data.”
         Again, I’ve already told you, I have data. I have actual innovator testimony.

         “Instead of asking questions, why don’t you find an argument for IP?”
         I did … you missed it – I want to encourage the innovators – not the copiers.

         “This is false. But you are not intrested in really looking into this issue–as I was.”
         Start spilling the beans then. You say that your system protects the creators of ideas and content – explain to me how.

         “I’m not a fascist or central planner, so ‘I’ or ‘my system’ does not ‘give credit’ to people.”
         So, how do you incentivize people to create something that can be easily copied? How do incentivize people to create ideas/content/innovations? It is one thing to throw darts at the current system – it is another thing altogether to create a VIABLE system to replace it.

         Maybe you need a hypothetical to loosen your tongue. I’m a film producer. I want spend $200M to make the next blockbuster film. However, all the countries in the world all simultaneously removed all the laws on intellectual property – mostly based upon your writings. I have come to you to ask you how can I make money from this $200M investment. Explain to me, under this new system, how this can be accomplished.

         “You have a set position or vested interest, and are looking to just bash anyone who opposes.”
         I like to bash people with half-baked ideas. Show me that your ideas are more than half-baked and perhaps I won’t bash you.
     60. 158

         No, the hypo is more inclusive even if you did not intend it to be. The pioneer blazed a trail/short cut to a path. Then started a business guiding people along the short cut to the path. The pioneer is not trying trying to patent the pioneering concept itself. Instead, they seek patent protection for a process of guiding people thru the forrest to a well known path. He only seeks to foreclose from others the use of the concept of pioneering in conjunction with all of the other steps in his claimed process.

         So once again this brings us back to why you Ned Heller are prejudiced.

         Why are you so he ll bent on banning patents of this type?

         Not on the map, but on the “applied” process as a whole?

         And to keep you from retreading old ground we already established:

         1. He/she is not patenting mere information by itself.

         2. He/she is not patenting the concept.

         3.. His/her process is presumed new/novel, useful and non obvious
     61. 157

         “ I suggest honest people look into this and reflect seriously before pontificating on matters beyond their ken. ”

         Is trying to subtly slam your discussion partner as dishonest and ignorant an example of being civil?
     62. 156

         Are you a MOONIE? And I don’t mean Malcolm. I mean a real honest to goodness Moonie with a tambourine that sings at the airport and at parks.
     63. 155

         I CALL EM LIKE I SEE EM. Too bad I have to be politacally correct or I get no post, and McCraken can say anything he wants. So now I know Kinsella must be his whateverrrrrrrrrrrrrrrrrr!
     64. 154

         “This observation is that in all the different countries in the world, we have an extremely wide variety of different types of governments and economic systems. It would seem to me if intellectual property “harmed[ed] economic production and innovation and human freedom,” then at least one country would have eliminated them.”

         Here is how it seems to me. The patent system is an obvious, prima facie infringement on liberty and property rights and competition and the free market. If you want to argue that laws the violate property rights etc. are okay, as long as they result in net benefit, you have the burden of establishing this. Isnt this fair, as a general approach?

         And you seem to think that just pointing to recent history does the trick–a handwave. It does not. Let me explain why. First, you have no evidence that patents have been necessary for or even stimulated any net innovation at all. You cannot just assume this, based on the fact that the experts have not changed their laws. You cannot just assume this because the west is prosperous–that is mistaking correlation for causation. And even if you could show net innovation, you have to show the cost is worth it. For example NASA probably has resulted in useful innovations on net (maybe). But are they worth the NASA budget? Who knows? It seems to me the burden is on you guys to find this out. Otherwise why would you even support the patent system, if you really have no good data to show that it’s worth it?

         Let me ask you: suppose we had a good study, and it concluded that the patent system produced $2B of additional innovation, but cost $30B. Would you still be in favor of it? Or what if it showed that patents depress overall innovation, at $17B per year, in addition to a cost or $30B? Would you be in favor? I suspect not–which means your empirical approach depends on the data. But you guys have no data. You do NOT KNOW. But why are you still in favor of the system? Should the patent term be 5 years? 2? 17? 20? 75? What? Zero?

         “These days, you don’t see many countries warring against one another, but you see a lot of economic warfare. In today’s world, the winners and losers are largely determined based upon their economies. As such, why wouldn’t a country eliminate intellectual property if that is what it took to move themselves up the economic ladder? As far as I know, over the last century, every modern country in the world has an intellectual property system. Are you telling me that the intellectual property attorneys in each and every one of these countries have so much sway that they can lobby all of the countries to go against the respective country’s own best interest for all this time? If your presumption is correct (IP is bad for economic production), then somebody would have eliminated it. Why haven’t they?”

         Instead of asking questions, why don’t you find an argument for IP? It is telling that you IP shills never have an argument for it. It is always bash the bearer of bad news, etc. It is fine to have qustions. It is fine to admit you are ignorant. It is fine to admit you don’t understand complicated history or political economics. Nor did my 86 year old country grandma. But she did not run around preening and pontificating on issues beyond her ken.

         “You get all hung it with the costs of intellectual property without attempting to understand the benefits.”

         By all means, please quantify these for us!

         ” The problem with the “no intellectual property philosophy” is that it provides ZERO protection for the creators of ideas and content.”

         This is false. But you are not intrested in really looking into this issue–as I was. You have a set position or vested interest, and are looking to just bash anyone who opposes it.

         “You admit that “transforming already-existing, already-owned scarce material, into more valuable arrangements, does in fact create wealth.” Given that admission, how does your side answer the question “how do you give credit for the person that created the wealth?” A pat on the back? An “atta boy!!!”?”

         I’m not a fascist or central planner, so “I” or “my system” does not “give credit” to people. IT lets the market function. YOu reallly have no idea what you are talking about. I suggest honest people look into this and reflect seriously before pontificating on matters beyond their ken.
     65. 153

         “What is unrealistic is the idea that a central state can issue monopoly privilege grants and expect this not to harm economic production and innovation and human freedom and property rights.”

         I’ve made this observation to your buddy Koepsell, and he has never really addressed it. This observation is that in all the different countries in the world, we have an extremely wide variety of different types of governments and economic systems. It would seem to me if intellectual property “harmed[ed] economic production and innovation and human freedom,” then at least one country would have eliminated them.

         These days, you don’t see many countries warring against one another, but you see a lot of economic warfare. In today’s world, the winners and losers are largely determined based upon their economies. As such, why wouldn’t a country eliminate intellectual property if that is what it took to move themselves up the economic ladder? As far as I know, over the last century, every modern country in the world has an intellectual property system. Are you telling me that the intellectual property attorneys in each and every one of these countries have so much sway that they can lobby all of the countries to go against the respective country’s own best interest for all this time? If your presumption is correct (IP is bad for economic production), then somebody would have eliminated it. Why haven’t they?

         You get all hung it with the costs of intellectual property without attempting to understand the benefits. The problem with the “no intellectual property philosophy” is that it provides ZERO protection for the creators of ideas and content. We are not living in the iron age … we are living in the information age. Information (whether it be ideas, inventions, digital content, etc.) has value – value enough that other people will pay for it.

         When I say your concepts don’t fly in the real world, let me explain. A smart economic decision is that if no one will pay you for producing a product, then you should produce that product. It is simply a smart business decision. Sure, there are people who like to give away stuff for free – in very limited circumstances that may work. However, as viable economic model, it stinks.

         What you are asking the information creators to do is to produce their information (e.g., ideas, inventions, digital content, etc.) for nothing. Maybe you can contract someone else to provide services associated with the information that you created. However, once the cat is out of the bag (i.e., your information), nobody else has to pay anything for it. As such, to the extent that you cannot guarantee exclusivity to the original entity with whom you contracted, they aren’t going to pay you a lot of money for your information. Here, the smart economic decision is to let somebody else bite the bullet (to obtain the information) and wait until that information becomes public knowledge. Secrets are very hard to keep.

         The system (or lack thereof) you advocate values copiers (i.e., those people subject to a “negative servitude” under the current IP system) over creators (i.e., innovators or idea/content generators). This is why your message doesn’t resonate – people (from all walks of life) value creators over copiers. I know, I know, you want to frame the issue in another way. However, talking about “scarce resources” and “state-granted negative servitudes” merely elicits eye-rolls and yawns from the vast majority of people.

         I, on the other hand, can frame the issue as simply as “our system values creators over copiers.” It is short and simple. People understand it, and it reflects a value system that the most people subscribe to — “giving credit where credit is due.” Sorry for you, but your rants against “state-granted negative servitude” arguments just cannot compete.

         You admit that “transforming already-existing, already-owned scarce material, into more valuable arrangements, does in fact create wealth.” Given that admission, how does your side answer the question “how do you give credit for the person that created the wealth?” A pat on the back? An “atta boy!!!”? Contractually? Again, as I noted above, given the easy and quick dissemination of information, there isn’t much incentive for people to enter into a contractual relationship for that information. Plus, all the contract stuff requires a lot of intervention by the state if you want to enforce it – state = yucky? Am I correct in characterizing that position?
     66. 152

         Mr. BMP, but the hypo is that the pioneer discovered the path through the forest.  He did not discover pioneering itself.  All he could patent would be the particular path, if anything.

         If he patents the map, his specification shows the map.  So no he would have to determine whether future travelers were using his map to prove infringement.  A simply way of doing this would simply to protect the map itself by copyright so that people who want a copy of  the map would pay for it, with a royalty going to the pioneer.  Why publish the map in the patent specification and cause the pioneer so much trouble proving infringement?
     67. 151

         Meet Dale Halling, who believes that one can infringe a patent merely by projecting a movie depicting a fictional character who allegedly carries out the patented steps as part of the plot of the movie.

         I wonder what happens if Dale Halling and Stephan Kinsella collide?
     68. 150

         “Mr. BMP, but if you can enforce such a patent only against people who are using the map, why not simply protect the map? “

         Excellent question. First let’s dispose of the red herring so that we can answer the real question. You should know you can enforce the patent against other businesses that use the entire process. So enforcement is not limited to just a map.

         Now, one day the pioneer may decide that guiding people to the path one at a time is too time consuming and limits the amount he can earn in a day. He may be inspired to create a more efficient and economical system that allows him to expand his business.

         With his patented process he could then offer other settlers the opportunity to start their own turn key tour guide businesses, using his patented process. All the other businesses would need to do is pay him a royalty and they could have a complete proven process without the time and expense of starting from scratch like the pioneer had to do. The licensees of the pioneer could even incorporate or add on the process to their existing covered wagon renting, or ferrying crossing business as value added services. That is the beauty and value of patents in general and business method/process patents in particular. Everyone prospers and benefits! With business methods in particular you can help more people, hire more workers, and grow the economy of an entire nation!
     69. 149

         Prescription drugs sales in the U.S. alone for 2011 were apparently $227,551,806,436 link to statehealthfacts.org

         Even Aspirin was patented at one point, so I’m gonna go out on a limb and assert that that is all due to patents. Add to that a large percentage of Apples take and some small percentage of Amazons take due to its terrible monopoly on -one clicking–and right away you’re talking real money.
     70. 148

         Mr. BMP, but if you can enforce such a patent only against people who are using the map, why not simply protect the map?  I don’t see the fundamental problem here.  The pioneer’s efforts are in fact protected.  Everyone buying a map has to pay the pioneer a royalty.  He is, in fact, compensated.
     71. 147

         Malcolm, did you check out Mayer’s dissent in Whitserve v. CPI Inc.?

         “>http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1206-1261.pdf

         Yes. Mayer is spot-on.

         Either 101 or obvious. Doesn’t matter which. The majority’s opinion that the need more “facts” to find all the claims invalid is horsesh—t.
     72. 146

         “But you have no evidence for this. You are just repeating IP propaganda. Boldrin and Levine explode this myth. ch. 9 of Against Intellectual Monopoly. ”

         Nonsense. I proved it through logic. I mean, I grant you, someone may stumble from time to time on a cure to something and through the goodness of their heart mention it to the rest of the world. But it would be a rare bird indeed that would spend the money needed even just to get get government approval for a drug, without patent protection.

         I hold that truth to be self evident.

         Also, a in a communist system, a government might do drug development. Has Cuba introduced any new drugs? I know they have fairly good medical care.

         But, I’m pretty sure you don’t want to extort money from people through taxation to support a large government drug development agency…. So, we’re back to relying on the free market and governmental granted intellectual property protection.
     73. 145

         “But, unless one wants to make infringers of those who think or who independently find another path, all we can ask is that they pay for a copy of the map.”

         Anyone that uses any type of invention is required to think. So to deny the pioneer his/her patent because the end user or performer of the process must think, would be grounds for denying ALL patents. And thus make one truly anti patent. Is that your view Ned?

         Now as far as “independently find another path,” well that would all depend on scope of the pioneers invention. For example his/her invention may be limited to the process as a whole which includes, discovering the path, clearing the ground, guiding the customer, receiving consideration in exchange for guiding, and/or providing a map. So simply “finding” another path would not infringe.

         But if you are saying the pioneer can’t have a patent because others might independently invent the same process that too is applicable to ALL inventions.

         Which bring us all the way back to why you are against the pioneer’s business method getting a patent but apparently for everyone else getting a patent?

         I simply want to know the basis for your prejudice. I know others have posted comments about why you discriminate against business methods but I would really like to hear it from your own mouth.
     74. 144

         Incidentally, for those who keep pestering me to keep explaining things–I have written in detail on all this. link to stephankinsella.com. I have spoken on it too — various interviews, lectures, and speeches here link to stephankinsella.com — including a 6 week online Mises Academy course, Rethinking Intellectual Property: History, Theory, and Economics
         link to academy.mises.org the audio and slides of which are online for free at link to c4sif.org. I am getting a bit tired of answering the same questions repeatedly that i have already answered here, or elsewhere. People who are really curious about this and interested in justice– I have provided sufficient links to let them explore further.
     75. 143

         Nice cop-out Steve.

         (btw, the phrase used by DAHSTICBTCTGCOSSH was “some would consider” – an opinion, and if you are letting opinions shut down what you have to say…)

         Now if you would be imprisoned for tax evasion, that would be a different story, right?
     76. 142

         Actually, it does prove Les’s point by your own answer.

         That answer: “And there is no right to earn back your investment. If there was, we would outlaw all competition”

         The law of infringement is just that: outlawing all competition for a limited time.

         It is not “trying to protect [] from.” It is LAW.

         Try to be honest.
     77. 141

         You kind of missed the other part of the post by SKW, Steve (the part about the need for State force)…

         Somehow, ‘ohh, you are a bad person’ does not seem likely to be effective in a trade sanction situation.
     78. 140

         “it is my position that without the patent system, there would be no new medicines. ”

         But you have no evidence for this. You are just repeating IP propaganda. Boldrin and Levine explode this myth. ch. 9 of Against Intellectual Monopoly. Just take a look. http://www.againstmonopoly.org.

         No one can argue there woudl be NO new medicines without a patent system. At most you can argue there would be FEWER pharmaceutical innovations without the patent system. But so what? Even by your own unprincipled utilitarian standard, you would have to prove that the value of the alleged additional innovations is greater than teh cost of having a patent system. So tell us: what is the cost, and what are the benefits? Just rough dollar estimates.

         Of course, you will not answer, or even try; no one knws this. You people just assume there is a net positive; or, rather, you pretend to assume it; I don’t think anyone really believes this. they just trot it out as an argument point. tell us, please: what is the cost of the patent system, and what is the value of the extra innovation it induces or induces-early? Just gives me some numbers. Or don’t you know?
     79. 139

         “sn’t patent infringement outlawed?

         Doesn’t this prove the point put forth by Les?”

         No. It is an example of trying to protect companies from competition.
     80. 138

         W-anking? nice. More incivility. I guess if I had no arguments…

         “Why does Chile abide by a treaty with Peru, say? No one will make them.”

         It does not take a higher court to “make them.” You never heard of trade sanctions?”

         Yes, and in a free society there would be “sanctions”–reputational effects, etc.–from violating norms. As happened in, say, the Law Merchant.
     81. 137

         I won’t talk to anyone who accuses me of sedition. That is the way of shutting down a conversation, since sedition means you think what the other person says shoudl be illegal, and punished by force. You cannot have a civil discussion with someone who wants you to be imprisoned for daring to voice your thoughts.
     82. 136

         “What I can’t figure out is why”

         Easy: let the professed enemy of the state h_ang himself with his own rope.

         Clearly, Kinsella, more than anyone, has done more damage to Kinsella’s belief structure by shining a light on the “principles” supporting that belief structure.
     83. 135

         What I can’t figure out is why Dennis would provide a forum for a professed enemy of the state, especially one having nothing more than a conclusion in search if a justification that takes the form of demanding his opponents prove a negative.
     84. 134

         What problem?
     85. 133

         Popcorn, you might have a point there.  Malcolm calls using a computer to automate old business processes obvious, does he not?  I can see why he might find this dissent a bit much.
     86. 132

         Purist, yes, all true.  Seems like the Congress threw the patent system under the bus, so to speak.
     87. 131

         Mr. BMP, all this is true.  But, unless one wants to make infringers of those who think or who independently find another path, all we can ask is that they pay for a copy of the map.
     88. 130

         So so sorry if you think this is not civil and respectful (and it is much more civil and respectful than most of your replies) – but it is civil and respectful.

         These are straight forward questions that stem from your use of the buzzword “principled,” as well as what some would consider your seditious statement that the Constitution was a coup.

         The relevance is that you broached the “principled” stand making it fair game. You want to force others (through a change in law to the libertian mode) to adhere to your principles, so it is only fair to see if you really ascribe to those prinicples, or if you are only chinwagging.

         My bet is that you are just chinwagging. Care to prove me wrong?

         And just because the questions are tough and put you on the spot does not mean that they are loaded and full of presumptions. The questions are in fact quite clear and straight forward. (yes, I realize that honest answers may put you in trouble either with your professed position – which is the point – or in trouble with the law – but hey, that comes with living with those principles – if You believe and espouse beating your wife, then you should answer as to have you stopped beating your wife or not).
     89. 129

         I tried to post a lengthy reply this morning but the system is not acceping it. So I added it as an updated appended to the end of link to c4sif.org
     90. 128

         “Why does Chile abide by a treaty with Peru, say? No one will make them.”

         It does not take a higher court to “make them.” You never heard of trade sanctions? And it does take a state to enforce trade sanctions, as without the state a mere advisory notice of “hey, nobody trade with (oh say) Cuba” would be met with a “pthhhplt.” The enforcement is within the state that wants to enforce by non-over state pressure.

         You need to get back to reality and away from your fantasy-philosophy world. Your w_anking is not argument.
     91. 127

         “And there is no right to earn back your investment. If there was, we would outlaw all competition, and guaranteea ny businessman.”

         Isn’t patent infringement outlawed?

         Doesn’t this prove the point put forth by Les?
     92. 126

         “And there is no right to earn back your investment. If there was, we would outlaw all competition, and guaranteea ny businessman. ”

         I didn’t say there was a right to earn back an investment.

         What I fairly clearly implied was, if there is no reasonable chance that I can get my investment back, I wont invest. I don’t think I need to do a study to support that. No one serious person would find the notion at all questionable.

         What I thought was clear was, it is my position that without the patent system, there would be no new medicines. No one would spend the development cost since there could be no return on the investment.

         I would have thought that the immeasurable value of the availability of medicine would be obvious.
     93. 125

         “First, there is no proof that Crestor or other drugs woudl not be invented without patents”

         What a fallacy – seeking to prove something that did not happen (as if some alternative universe could be visited).

         To quote you: this is not an argument. It is not serious.

         “Second, even if Crestor would not have been invented, this does not justify the patent system.”

         This begs the question; To whom are we trying to justify the system to? To a rational, objective person, or to a n_utcase extremist?

         “Your alleged right to copy interferes with my right to earn back my investment.”

         This is mistated and Stephan jumps all over the mistatement and ignores the actuality of what the right is (because he does not believe the right to be just).
     94. 124

         There is no international sovereign to make countries abide by their agreements. Can you not see the parallel? Why does Chile abide by a treaty with Peru, say? No one will make them. The logic that you have to have a state to make people follow law, wolud mean that you need a one-world super-state to make countries abide by international law.

         And this would mean that the one-world super-state would need a super-super-state over it, to make it follow its own constitutino. etc. This is a commonly-recognized problem in political philosophy. See Anthony de Jasay, Against Politica, for example.
     95. 123

         One word is not an argument. It is not serious. First, there is no proof that Crestor or other drugs woudl not be invented without patents; in fact what harms innovation is state taxes and regulations, including FDA, patents, etc. See ch. 9 of Boldrin and Levine; they explode the empirical myths.

         Second, even if Crestor would not have been invented, this does not justify the patent system. For example even if your implicit argument is that any law or policy that adds more wealth to society than it costs is justified (which is not true either), you would have to show that the cost of the patent system is lower than the value of the extra innovation induced by the system (you would have to show also that there is net extra innovation induced; the evidence seems that it is a negative).

         And there is no right to earn back your investment. If there was, we would outlaw all competition, and guaranteea ny businessman.
     96. 122

         “So let me get this straight, my being facetious is somehow lost on the tar ds of this board?”

         You have a reputation of posting re tarded things — so when you type something really stu pid, people assume that is what you really mean.
     97. 121

         Can you not be civil and respectful, and give me the benefit of the doubt that perhaps I have sincere reasons for my beliefs? When I get snarky replies like this, it is obvious my interlocutor has no interest in the truth, but rather is trying to score cheap shots. As for how I act in my own life, what possible relevance can this have for whether patent and copyright law are compatible with genuine property rights? Either they are or are not; I cannot change this by my own actions. So why inquire into this? Further, your questions are loaded and full of presumptions I do not share. It would take another mini-treatise to unpack them. YOu should not try to load the question with assumptions that are controversial and that your discourse partner might not share. It is dishonest and contrary to the nature of genuine civilized discourse. It’s akin to asking, “Oh, and have you stopped beating your wife?!”
     98. 120

         “And there is no justification for IP law. Most people do not even try. ”

         You are mistaken. I can justify it in one word:

         Crestor.

         Without the patent system, Crestor wouldn’t exist and most likely, neither would drug eluting stents.

         Without patents,the billions of dollars it takes to develop and get approval for 1 successful go un recaptured. The right chemical to address an aliment is difficult to find. But once found, it is very easy to reverse engineer and duplicate. Therefore, generics would hit the market within months of the introduction of a new drug driving the price so low that there would be no way to recoup development costs.

         The same principles apply in other endeavors that patents touch. Apple cant charge enough to recoup development costs, if Samsung et al are able to copy and drive the selling price down to the cost of parts/assembly and shipment. Accordingly, Apple would stop developing new products.

         The nose touching goes both ways. Your alleged right to copy interferes with my right to earn back my investment.
     99. 119

         Since the decision applies 101 to things and MM believes 102 and 103 is more proper for such, I am sitting back to enjoy MM be consistent and argue that Mayer was wrong to use 101 in this instance.
     100. 118

          “Of cousre not. the Constitution was a coup.”

          Wow, so the basis of all US law is a sham, huh?

          Tell me, do you live by your principles and not follow the sham-based law? Do you pay taxes? If so, do you feel that you are not living up to your principles by doing so?
     101. 117

          “And the way international law is enforced now.”

          You mean in the respected and acknowledged courts of law per each country? The same courts of law you denigrate?

          What exactly is your point here? Do you have one?
     102. 116

          And assuming Fingerprints matter, I was told to do the same thing on Oct 19, 1995 by someone from LL Offices. Funny thing many times the same thing was done over and over. Peoples… LOLOLOL that must be Diane. Jim even got that thankless, worthless Job by design.
     103. 115

          There are clues.

          Ned has written and shared his views on the enumerated categories of patent eligible material previously. When he has done so, he did not place the process category as an equal to the “hard good” categories. He treated the category only as a conduit to obtaining something, some “hard good.”

          In essence, he, similarly to Stephan, has communized an aspect of patent law by seeking to place processes that are not manufacturing processes outside of the patent realm and belonging to the commons.
     104. 114

          The relevance comes from understanding the forces that desire to shape the law you practice. If you want to step out of your immediate circle and help shape the environment you work in, such understanding may come in handy.
     105. 113

          Well, if Ned’s prejudice is based on scope, then I would still like to know why business methods, and not other categories?

          In my opinion there is nothing wrong with broad scope. Indeed, an inventor that is the first to apply a concept, that is not obvious, should have as broad of scope as the application of that concept allows.

          So the question still remains for Ned, why is he prejudiced against business method patent in general, and the pioneer guide process specifically?
     106. 112

          The above contain many interesting and diverse comments. The relevance of this article is, however, largely lost on me since I am not particularly inclined to ponder philosophy, libertarianism, objectivism, or whatever else may intrigue those inclined to engage is such activities. I much prefer the practice of law, as opposed to counting fairies dancing on the head of a pin.
     107. 111

          And let’s not forget that with the patent exhausted, the secondary market is now wide open.

          Guess who is screwed? The patent holder, the one who engaged the patent system and was willing to disclose. And what happens if this was a market with few players and it was your top competitor who whips out the PUR? He gets to freeride on your patent and let’s you clear out the rest of the field.
     108. 110

          You two are talking past each other. Ned appears to be concerned with scope and thinks the claim covers ALL paths, and Business is concerned with one path only, but a patent on a business method that uses that singular path (the path being “information” is a red herring).
     109. 109

          Ned,

          The path, is a path. It is a physical thing. The pioneer found the path by blazing a trail to the path, that others did not know about. A short cut! So he starts a tour guide business.

          The process is novel, ( never been done).

          It’s useful.

          It’s in the real world and physical, so it’s applied

          Others are free to blaze their own short cuts to the path, so it does not monopolize the concept.

          So from the looks of things the pioneer has a legitimate right to a patent.
          That the applied process contains “information” is no reason to deny the patent since ALL applied processes, indeed all patents, contain information.

          Which brings us all the way back to why do you want to stop this pioneer from getting his patent?
     110. 108

          “agents of the state /= the state bro”

          legal understanding FAIL.
     111. 107

          “I did explain it. For there to be a right, it is legally enforceable. Force. Force. Physical force. Applied by the court. To enFORCE the award. The force is always applied… physical force… against other scarce (physical) things, like the body or factory of the defendant.”

          I don’t see much of an explanation here. You seem to assert that force can only be applied to “scarce” things – which you imply must be physical things. However, good ideas are scarce. The fact that many can be easily copied doesn’t take away from the fact that the original idea is scarce and valuable. Your distinction is one that few people see and less people care about.

          “or against the money in his bank account.”
          Money in a bank account? You mean that digital representations of pieces of paper that themselves are representations of an alleged scarce material? If you can apply “FORCE” against digital zeros and ones, I would say you can apply FORCE against intellectual property.

          “Communism is central (state) ownership of the mean of production.”
          Communism has the commune (i.e., everybody) owning everything. This is the same thing you are advocating. Everybody (i.e., the community) owns all the intellectual property. Again, you attempt to make distinctions that doesn’t amount to anything. Communism is about removing individual ownership of property. You also advocate removing individual ownership of property.

          “In IP, the state takes property from owners (negative servitudes) and assigns them to favored state cronies (patent applicants).”
          Certainly not pure communism there – which abhors individual ownership of property. I’m glad to see you are finally seeing the light.

          “Oh, stop complaining, I am just limiting what you can do with your stuff–and as we know this is the essence of property rights.”
          Boring libertarian claptrap — “Oh no … the state is out to get me … oh no … the state is going to take everything I have. Oh wait, I wouldn’t have this stuff without the state? oh %^&*.” See the part where your arguments don’t resonate.

          “Then you have not read or understood my argument.”
          Do you understand *&&%$$^&*(*)(*&? No? It’s because it is meaningless gibberish. I pretty much feel the same reading your writings. I’m really cannot take a philosophy seriously when that philosophy is disconnected from how the real world works.

          “This is untrue, but it is understanable why most people today believe such bromides.”
          What enforceable rights would you have if the event there was no state (i.e., anarchy)? You can physically possess something – however, there is a finite limit to the things one can physically possess.
     112. 106

          Malcolm, did you check out Mayer’s dissent in Whitserve v. CPI Inc.? link to cafc.uscourts.gov

          It seem he had a problem under 101 with an invention that sought to automate giving reminders using computers and the internet.
     113. 105

          Not interesting, not on point, not substantive.

          Not

          *click

          Not disputed.

          suckie’s underwear, of course, is two-toned.
     114. 104

          6, OK.

          Perhaps some higher ups at the PTO can take a look at this because clearly the examining corps do not care.
     115. 103

          BMP, the path is information.  When you patent that information, everyone knows of it — it is published in the patent.  So you start suing all people who are guides who may or may not be using the information.  What you have done is make all guides infringers so long as they get from point A to point B.
     116. 102

          So let me get this straight, my being facetious is somehow lost on the tar ds of this board?
     117. 101

          PUR, good point.  Customers get a free ride too.
     118. 100

          I’m not sure how you propose to implement a 112 2nd rejection here Ned, nor do I particularly care.
     119. 99

          agents of the state /= the state bro.
     120. 98

          Of cousre not. the Constitution was a coup. And it has many obviously unjust provisions, namely legitimating slavery, counting blacks as 3/5 of a person, etc. The copyright clause was a mistkae. The founders didn’t know what they were doing. They were wrong. And guess what–in the 200+ years since they had their utilitarian “hunch,” no one has proved the hunch to be right, with any empirical study.
     121. 97

          Yes, Konkin was one of the early thinkers to see the IP issue clearly. Probably the first was Benjamin Tucker. Konkin may have been next. See link to c4sif.org
     122. 96

          “How can it be literally impossible? You assume this for a fact yet you don’t explain how it is literally impossible.”

          I did explain it. For there to be a right, it is legally enforceable. Force. Force. Physical force. Applied by the court. To enFORCE the award. The force is always applied… physical force… against other scarce (physical) things, like the body or factory of the defendant, or against the money in his bank account.

          “So any law giving rights in a pattern is really transferring control-rights (ownership) to scarce goods. This is really indisputable. And you notice that whenver I mention this the IP advocates change the subject.”
          First, why don’t you distinguish communism from your proposal. I set forth an analysis why they are the same. What is your analysis.”

          Communism is central (state) ownership of the mean of production. The means of production are scarce resources. That system is immoral and evil, for the same reasons IP is wrong: both violate property rights in scarce resources. In communism the collective/state takes property from owners, to nationalize them. In IP, the state takes property from owners (negative servitudes) and assigns them to favored state cronies (patent applicants).

          “As to your observation, and I can only speak for myself, but frankly, this argument doesn’t resonate.”

          That does not mean that state grants of monopoly privilege are justified.

          ” The nature of property rights is to exclude other from doing things with your property (whatever that property may be). As such, I am untroubled by your observation.”

          Waht i there was a law that said “Mr. Curious is hereby prohibited from using his body to drive a car.” Well how can you object?After all, it’s the nature of property rights to exclude people from using their property as they like–so this is just a property right! I guess any wicked or unjust law could be justified this way. If I am robbing you in your home, I can just tell you, “Oh, stop complaining, I am just limiting what you can do with your stuff–and as we know this is the essence of property rights.”

          “Despite your belief otherwise, the common person believes that he/she owns his/her own ideas”

          I know that most peopel believe this, because they are confused. That does not make them right.

          “Your libertarian ideas seem based upon the ancient notion that the only thing of value is something that is created via the sweat off one’s back”

          Then you have not read or understood my argument. I have elaborated on this in detail, with clarity. I can’t be responsible for your inability to comprehend.

          “almost all property rights are the creation of the state.”

          This is untrue, but it is understanable why most people today believe such bromides.
     123. 95

          Which is to say that they are anarchists, NOT libertarians as understood by most.
     124. 94

          So let’s get right down to it….

          I reprinted Kinsella’s article as my own. No problem because you don’t believe in intellectual property rights, right Kinsella?
     125. 93

          A comment already has been made about warlords and lawlessness. Your braggadociousness would evaporate very quickly if you were ever faced with the reality of what you type. This is not the first time your immaturity shows in your posts. It is likely not the last.
     126. 92

          The anti-IP case is not dependent on being anti-state. So let’s not get bogged down itn it. And if you are serious then you can research this–but one answer is: the way the law merchant was enfroced. And the way international law is enforced now. You do realize there are 200 countries and no super-state above them to make them abide by treaties, right? If you are realy serious see Hoppe’s bibliography link to lewrockwell.com
     127. 91

          Private army.
     128. 90

          All talk of cause and effect is secular history. Secular history is a diversionary tactic. There’s no such thing as death, life is only a dream, and we’re the imagination of ourselves. Here’s Tom with the weather.
     129. 89

          “as to the value of patents?”

          Would that be based on “fair market value” and include recent mega-million dollar patent asset sales?
     130. 88

          “Except that an efficient market doesn’t happen without regulations and most property rights don’t exist without the state.”

          Correct. Free Market has never meant unregulated market. I’m fact, without the power of the state to enforce, you are left with lawlessness and aggrandized power amassing to warlords. There is a shameful amount of ignoring basic human nature going on with the intellectual m_asterbation of too-much theory in the “libertinism” speaking points. Pure pacificism simply is a pipe dream and an insult to the men and women of this country who have fought for our freedom, who have died preserving our ideals. One of those is the right to discuss theories such as those bandied about here. But discussion does not mean acceptance, so I tolerate the expression of the views and at the same time emphatically reject them.
     131. 87

          Not interesting, not on point, not substantive.

          Not a surprise.
     132. 86

          More “let’s make patents weaker” crrp.
     133. 85

          “Because he shakes up Partyarchs who tend to fall into unthinking complacency. And especially because he cares deeply about liberty and can read-and-write, qualities which seem to be going out of style in the libertarian movement”

          Unthinking complacency, sort of like here at Patently-O with the vocal minority, who lack skills of actual legal thinking and merely parrot stale mantra, avoid points made by others, and hurl insults as a first line of dialogue.
     134. 84

          “Either Libertarianism or Communism would work (probably exceedingly well) if people were perfect”

          If you understood what Communism was, you would hope, you would pray on your knees that one day we would become Communist. (speaking to students at the University of Michigan in 1970)
     135. 83

          Additionally, it is our view that “Rules” 2 and 3, at least, are logically unsound. According to these “Rules,” a process containing both “physical steps” and so-called “mental steps” constitutes statutory subject matter if the “alleged novelty or advance in the art resides in” steps deemed to be “physical” and non-statutory if it resides in steps deemed to be “mental.” It should be apparent, however, that novelty and advancement of an art are irrelevant to a determination of whether the nature of a process is such that it is encompassed by the meaning of “process” in 35 U.S.C. § 101. Were that not so, as it would not be if “Rules” 2 and 3 were the law, a given process including both “physical” and “mental” steps could be statutory during the infancy of the field of technology to which it pertained, when the physical steps were new, and non-statutory at some later time after the physical steps became old, acquiring prior art status, which would be an absurd result. Logically, the identical process cannot be first within and later without the categories of statutory subject matter, depending on such extraneous factors.
     136. 82

          You obviously did not get the memo – Kinsella is anti-government, and that especially anti-Constitution.
     137. 81

          Libertarians such as Stephen Kinsella are not strong proponents of property rights. These so-called libertarians believe that property rights are just a convenient tool for allocating scarce resources. A “right” is not a convenient tool. A right is something that exists because of the nature of man, not because it is convenient.

          To suggest that Kinsella is a strong proponent of Property Rights is like suggesting Obama is a strong proponent of free markets. Libertarians’ argument that patents create artificially scarcity is also incorrect. The material to create inventions are scarce, the talent to create inventions is scare and the market for inventions are scare. Kinsella’s arguments have much more in common with Marxists arguments against property than free market theory. In fact, if you substitute property rights for patents in Kinsella’s arguments, you end up with the same arguments Elizabeth Warren and Obama “You didn’t create that” becomes “you didn’t invent that.”
     138. 80

          You gave me a link to blogs … not studies.

          “They conclude that patents and IP in general cannot be shown to generate net wealth, or are ambiguous,or show that they impose net costs.”
          Did they make a determination as to the value of patents? If so, could you please share those numbers.
     139. 79

          “Because the only way to object to the latter is to ignore contractual freedom.”

          How do you enforce contracts without the state?
     140. 78

          Interesting factoid re anarcho-libertarians: they like to wear black underwear.
     141. 77

          Except that an efficient market doesn’t happen without regulations and most property rights don’t exist without the state. I think that the problem with most libertarians is that their philosophy reflects the world as they think it should be – not the way that it is. The problem is that many people don’t act in their own best interests and/or the best interests of society. For example, many people will act to increase their wealth by “X” even if it will cost society “100X.” Without the “state” (which is just a word to describe the mechanism by which society has chosen to police itself), those that act poorly will decrease the wealth of the state.

          In a Darwinian context, Libertarianism is not the fittest of the species. Either Libertarianism or Communism would work (probably exceedingly well) if people were perfect because both look to give power to the individual and eliminate the middleman (i.e., the state). As such, such systems (on paper) seem to be very productive. However, people aren’t perfect, and I suspect that they never will be. As such, both Libertarianism (anarchy) and Communism have been proven not to be the fittest.

          The societies that have prevailed are those that have a strong state that encourages innovation/industry while at the same time protecting the working class from the abuses of the powerful. I know, too much “interference” by the state for your taste, but it has worked and still works. Communism fails because the winners are those that do nothing because the difference between what they give and what they receive is greatest when they give nothing. Libertarianism (anarchy) fails because it advocates a system in which the strong can easily abuse the weak since the weak has little protection.
     142. 76

          The force is strong in this one.

          link to en.wikipedia.org
     143. 75

          Publish all applications upon filing.
          Shorten the patent term (5 years from issue plus provisional rights would be a good start)
     144. 74

          What is “legitimate”? Article 1, Section 8, Clause 8 is not enough to make it legitimate?
     145. 73

          “A pioneer finds a path. He will guide travelers through the forest in exchange for a few geld and then will return to guide further travelers.” ….

          and add as a dependent claim, with the aid of a map.

          Again, my question is why are you so he ll bent on banning patents of this type. Not on the map, but on the “applied” process as a whole.
     146. 72

          “I also say that it is literally impossible to have property rights in patterns of information–in logos.”
          How can it be literally impossible? You assume this for a fact yet you don’t explain how it is literally impossible.

          “So any law giving rights in a pattern is really transferring control-rights (ownership) to scarce goods. This is really indisputable. And you notice that whenver I mention this the IP advocates change the subject.”
          First, why don’t you distinguish communism from your proposal. I set forth an analysis why they are the same. What is your analysis.
          As to your observation, and I can only speak for myself, but frankly, this argument doesn’t resonate. The nature of property rights is to exclude other from doing things with your property (whatever that property may be). As such, I am untroubled by your observation. Despite your belief otherwise, the common person believes that he/she owns his/her own ideas – and god forbid that someone else tries to take one of those ideas and hold it out it out as their own.
          Your libertarian ideas seem based upon the ancient notion that the only thing of value is something that is created via the sweat off one’s back – i.e., tangible things. In today’s society/economy, what you create between your ears is typically far more valuable than what is created with your hands. There always exceptions, but the highest paid (a good measure of valuable) people are those that create with their heads, not their hands. This is reflected in the importance that MODERN economies have given to intellectual property and the value of ideas in general.
          FYI – almost all property rights are the creation of the state. Without the state, the only way you can assert your property rights is with the sword. You say that being able to “contract” ones rights away is acceptable. However, a contract is only good if it is enforceable, and without the state, the only way you can enforce a contract is with the sword – and if you are going to use the sword for persuasion, why do you need a contract? Libertarianism taken to the nth degree is anarchy – you own what you can physically exert your physical dominance over. This appears to be what you are advocating for with intellectual property.
     147. 71

          That does not prove that the “encumbering” is legitimate.
     148. 70

          How?
     149. 69

          No. I am simply saying I am more sympathetic to the left-libertarian objection to absentee ownership of unused, unimproved property, than I am to their objection to absentee ownership of property that is actually in use by the owners’ employees or tenants. Because the only way to object to the latter is to ignore contractual freedom.
     150. 68

          I just gave you a link to a collection of studies. They conclude that patents and IP in general cannot be shown to generate net wealth, or are ambiguous,or show that they impose net costs. As for using patently-O, …. the owner linked to my blog post. What are you talking about? You are obviously not reading my comments or linked pieces.
     151. 67

          “There is no conflict between opposing patents, and favoring property rights.”
          Except that patents (i.e., intellectual PROPERTY) is a subset set of property. One of the theories of property is that property is simply a “bundle of rights.” link to en.wikipedia.org. If this is accurate, then intellectual property surely fits within this theory since intellectual property can be described as a specific bundle of rights.

          “You are very confused.”
          I don’t think so … you are the one arguing against the grain.
     152. 66

          “ if it is not being used productively, then this is just a drain on one’s patrimony.”

          Next step: the drain of all that money sitting in billionaires bank accounts when it just as well be fallow. It’s just a short skip from “unused” to “better used”
     153. 65

          So, your position is that if anybody has unused, unproductive property, then someone else has the right to take that property and productively use it? Is that what you are agreeing to?
     154. 64

          “This is not a good argument for patent law”

          translation: I cannot find a parrot soundbyte for this point, therefore it must not be a good argument.

          [eyeroll]
     155. 63

          “Under the new law, the public is not relieved, only the first inventor – and all of his customers.”

          Corrected. Let’s not forget that PUR exhausts the patent even though the patent holder sees no benefit whatsoever.
     156. 62

          A problem that can be addressed by statute rather than abolition of the patent system.
     157. 61

          “ not the form of the language which caused it to have such scope.”

          Form over substance only counts when it aligns with Ned’s agendas.

          Never mind that the issue was enablement, pure and simple, and notice that the only ones who jumped oon the EVILS of functional claiming were the vocal minority.
     158. 60

          Or, I am knowingly acquiring encumbered property.
     159. 59

          “”Ideas are not ownable as property.”
          “To the extent that intellectual property is considered an “idea,” in almost every modern country for as long as most people today have been alive, this is an incorrect statement. Please do not confuse your view of the world, as you believe it should be, with the world, as it is. If “[i]deas are not ownable as property,” then we wouldn’t be having this discussion.”

          I konw the difference between positive law and moral or normative law. I know what it means to say what the law is, and what it should be. Yes, I admit IP law is the law, and I think it should not be. But I also say that it is literally impossible to have property rights in patterns of information–in logos. So what the law really does–this is a legal-realist interpretation of the nature of patent and copyright–is use these laws as pretenses or excuses to reassign existing rights in already-owned scarce goods. For example if Elton John sues you for releasing your own version of Rocket Man (as an unlicensed derivative work), then the court will threaten (or use) physical force of state goons against you or your bank etc., to make you turn over your money to him. In other words, it’s just a complicated way for Elton John to claim property in some of your money. It’s no different than if the state passed a law saying “Elton John gets $100k of Ralph X’s money”. That is a pure redistribution of property. It is theft.

          All IP rights amount to this precisely because it is literally impossible to own a pattern. So any law giving rights in a pattern is really transferring control-rights (ownership) to scarce goods.

          This is really indisputable. And you notice that whenver I mention this the IP advocates change the subject. They never answer this directly. Never. Because they cannot.
     160. 58

          KNowing the state might harm you or violate your property rights doesn’t justify it.
     161. 57

          Of cousre I’m an anarchist (anarcho-libertarian, or anarcho-capitalist)–all consistent libertarians are. We are opposed to aggression, so of cousre we opose the state. See my What It Means to Be An Anarcho-capitalist. link to lewrockwell.com
          However, my anti-IP views, while reinforced by anarchism, are not dependent on it. Anyone who is in favor of property rights and the free market should oppose patent and copyright root and branch.
     162. 56

          There is no conflict between opposing patents, and favoring property rights. You are very confused. Let me guess: public school?
     163. 55

          I am somewhat sympathetic to the idea that an absentee owner of “fallow”–unused and unimproved–property will find it hard to defend and keep it. After all, if nothing else, it takes resources to police and “maintain” the borders alone; if it is not being used productively, then this is just a drain on one’s patrimony.

          But I am not sympathic to the idea that absentee ownership is not possible. Imagine someone who builds a factory or store, or apartment building, and owns it outright; he then retires and moves to Tuvalu, leaving the factory in charge of his employees and the apartment in charge of his tenants. They maintian possession for the absentee owner, by contract, as his agents. So the ownership is maintained, and he is maintained as the owner. Not the employees. Not the tenants.
     164. 54

          Nailed it.

          And what’s funny about it is that he is hiding the anti-patent wolf under the libertian pro-property sheepskin.
     165. 53

          Day 1: Article 1, Section 8, Clause 8
          Day 2: I own pencils and rubber-which I bought for the purpose of developing my exciting new pencil with rubber product
          Day 3: USPTO grants patent for “Pencil With Eraser” to someone who had an unpublished application pending when I bought my pencils and rubber
          For a limited time (roughly 1/3 to 1/2 of my working lifetime for patents, or my entire lifetime and my child’s for copyright) after Day 3: I cannot place my rubber on my pencils- further I am restricted as to how I sell them and to whom, as I can not facilitate third party infringement.
     166. 52

          “the fact of scarcity (rivalry) is the reason we need property rights, which are designed to assign one owner to each such resource so they may be used cooperatively and productively.”

          Assume we have an absentee owner of property that leaves the property fallow. Would you advocate for a mechanism by which that absentee owner forfeits their property to someone who will use it more productively? For example, if the land left fallow is cultivated by another (e.g., by clearing brush and planting fruit trees), under the Lockean theory of property, shouldn’t the improver have ownership of the property over the absentee owner who left the land unimproved?
     167. 51

          6, OK.  Magsil had to go through the pain of proof that the claim was not enabling.  We engaged in a farcical trial on that issue when it was self evident that the claim itself had nothing at all to do with the inventive techniques that enabled the small advance in resistivity from 3 to 12 percent (approx).  The claim was simply claiming a result.  A clean and simple 112, p.2, rejection should have sufficed.

          But no, the office seems disabled from entering such simple rejections in cases like this.  Right?  I have never seen one in my entire career, except if I do not have antecedent basis for a claim term.  Of course, this could also be because I do not file claims such as the one in Magsil.
     168. 50

          Day 1: Article 1, Section 8, Clause 8
          Day 2: I own pencils and rubber
          Day 3: USPTO grants patent for “Pencil With Eraser”
          For a limited time after Day 3: I cannot place my rubber on my pencils

          So what? I acquired my rubber and my pencils knowing that the government may someday temporarily limit my ability to use my property in previously unknown (and not obvious) ways. I can continue to use my rubber and my pencils in all the ways known to me at the time I made the acquisition (as well as in many other ways).

          The IP abolitionists have yet to sway this libertarian.
     169. 49

          Where exactly are your studies?

          All I can find are your blog posts? If you are using patently-o to up your google ranking so that your website is listed higher, just say so. It wouldn’t be the first time somebody has taken advantage over another website to drive traffic to their website.

          However, if you are legitimately try to make some arguments, please cite to some original source material that looks at BOTH sides of the equation — i.e., the costs and the benefits of intellectual property.
     170. 48

          In other words, … Money for nothing…
     171. 47

          “Amen to that bro” says an agent of the state. I could be crass and ask you to take Mr. Kinsella’s advice, but I won’t go there ….
     172. 46

          “Of course. In fact I’m against anything the state does. Except commit suicide”

          So you are, in fact, an anarchist? I assume you are using the libertarian tag to make yourself look presentable to polite society. Don’t worry, it’s OK to come out. We are all adults here and not out to judge you — it’s not like there is any wrong with being an anarchist. Its who you are and we accept that.
     173. 45

          Amen to that bro.
     174. 44

          “Ideas are not ownable as property.”
          To the extent that intellectual property is considered an “idea,” in almost every modern country for as long as most people today have been alive, this is an incorrect statement. Please do not confuse your view of the world, as you believe it should be, with the world, as it is. If “[i]deas are not ownable as property,” then we wouldn’t be having this discussion.

          “Recognizing this is not communist.”
          I don’t see the difference. Boil communism down, and what you are left is with the notion that the idea of “individual property” doesn’t exist. Instead, everybody (i.e., the commune) owns all the property. Eliminating intellectual property rights simply means that the commune owns all the intellectual property and anybody is free to use it “according to his needs.”

          Communism seeks to convert all individual-owned property into property rights owned by the commune.

          Advocating for no intellectual property rights seeks to convert all individually-owned intellectual property into intellectual property owned by the community.

          Again, I ask you, how does the position you are advocating differ substantively from pure communism?
     175. 43

          Idk about that Ned, things like “fully enabled” were always an issue at the Fed, and it applies regardless of whether functional language was used or not. In other words, I think that functional language was at issue in Magsil had little to do with the outcome, the outcome was based solely upon the scope of the claim, not the form of the language which caused it to have such scope.
     176. 42

          Mr. BMP, what process?  The process of making a map?  I think that quite eligible if new.  However, I daresay you don’t want a patent on the process of making a map, but on a particular map.  Right?
     177. 41

          ” I will create a map and sell the map or any maps made from my map in exchange for a few geld royalties for a period of time. I”

          My question is why are you so he ll bent on banning patents of this type. Not on the map, but on the process as a whole.
     178. 40

          Steven, agreed.  But if A does publicly use his invention, he does have 102(g) rights back to his own date of invention under current law.  That is all I am saying.

          In the new AIA, the first inventor gets similar protection, but the public does not.  Under current law, the entire public is freed from the burden of the patent because it is invalid.  Under the new law, the public is not relieved, only the first inventor.
     179. 39

          Stephan, I think Jefferson may once have had this philosophy. In the end, he thought permissible to grant limited monopolies in “ideas” to extent such protection promoted investment in science and the useful arts.

          The problem arises when the protection granted exceeds the benefit given. This is, or should be, analyzed on a case by case basis; but I would agree that the scope of protection should not be more than necessary to inspire the investment, nor should it make infringement of independently developed ways of accomplishing the same overall objective.

          As I mentioned before, the Supreme Court has been sensitive to this balance while the Federal Circuit has not. The Supreme Court has long condemned functional claiming; the Federal Circuit until the very recent Magsil case seem to have no problem with it. But if the Magsil case is an harbinger of things to come, the flow of the tide may well have turned at last in that court.
     180. 38

          VC’s ask this because in today’s patent-ridden world you need patents if only for defensive purposes. That does not justify the institution of patents in the first place. If there were no patents VCs would not ask this.

          As for studies: see
          Yet Another Study Finds Patents Do Not Encourage Innovation link to blog.mises.org
          ; There’s No Such Thing as a Free Patent, link to mises.org

          My guess is the patent system costs the US economy about half a trillion bucks a year
          link to blog.mises.org
     181. 37

          No. You are wrong. Just because A invented it first does not mean A is commercially exploiting his own invention. It is possible to invent first yet not qualify for the prior-use defense.
     182. 36

          Of course. In fact I’m against anything the state does. Except commit suicide.
     183. 35

          Ideas are not ownable as property. Recognizing this is not communist.
     184. 34

          Stephan, under current law, B cannot stop A if A is exploiting his invention in a public fashion. The A invention is prior art to B under 102(g), not as of his public use date, but as of his date of invention.

          In a few months, A may still be able to rely on prior use even in a first to file system.
     185. 33

          Yes. To be clear I am not saying you “should not” be able to own ideas. I am saying it is literally impossible. When the law declares A owns a given patent claim (a pattern or right to instantiate a pattern), this simply means that IF B does some things with his property (instantiates the pattern in it), THEN A is entitled to some of A’s money as damages. It’s all always about ownership of scarce resources. IP just acts as a disguised transfer of title to already-owned things. That is why it is theft. It is the grant by the state of a negative servitude.
     186. 32

          This “then” does not follow at all. This is not a good argument for patent law.
     187. 31

          “All these ‘exchange’ things you mention; they sure sound like ‘contract’ to me. Isn’t that one of your recognized property producers? If I can sell my time and knowledge (or for that matter, just my knowledge) for cash, haven’t I created property that was not there before (cash in hand)?”

          I go into this in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. But contract is a source of ownership, but not creating propety from nothing: it’s a transfer of already-owned scarce resources from A to B. But in the “sale of time” it’s really not a sale, not a bilateral exchange of two owned things. Rahter it’s a one way title transfer: of money from A, to B, triggered by B’s performing of a certain action.
     188. 30

          Stephan, would you be opposed to a state award for a patent paid for by a common tax, the amount of which would be determined by a committee who would review, on a periodic basis, the level of use of the invention by the people?
     189. 29

          Curious, actually, the abolition of so-called bourgeoisie property (private property) is central to Marxism.  Everything else follows.

          Marx, IIRC, looked at the socialism that proceeded as being insufficient in that it only sought to regulate bourgeoisie property, to reduce, but not to eliminate class distinctions.

          So, yes indeed, I see in Kensalla the “faint” order of Marxist philosophy.  But I am not so sure that he would advocate state control of bourgeoisie property.  He seems to advocate maximum freedom.  That is a little different.
     190. 28

          “Curious, is that his position? Really?”
          That was the question to him. Can you distinguish the abolition of intellectual property rights from the basic tenets of pure communism?
     191. 27

          Then A should have gotten off of his lazy bottom and publicly disclosed the invention or filed a later application invoking an interference. Hence, patents promote the progress of the useful arts, and the availability of new and better products in the marketplace. God bless America.
     192. 26

          A path through the forest is unknown. A pioneer finds a path. He will guide travelers through the forest in exchange for a few geld and then will return to guide further travelers.

          Then one day he offers, I will create a map and sell the map or any maps made from my map in exchange for a few geld royalties for a period of time. In doing so, he increases efficiency of travel through the forest, while decreasing the overall cost to a particular traveler.

          So, why can’t we create a system whereby this might be accomplished under the law? Why is this idea philosophically wrong?
     193. 25

          Curious, is that his position? Really?

          A path through the forest is unknown. A pioneer finds a path. He will guide travelers through the forest in exchange for a few geld and then will return to guide further travelers.

          Then one day he offers, I will create a map and sell the map or any maps made from my map in exchange for a few geld royalties for a period of time. In doing so, he increases efficiency of travel through the forest, while decreasing the overall cost to a particular traveler.

          So, why can’t we create a system whereby this might be accomplished under the law? Why is this idea philosophically wrong?
     194. 24

          “The scarce means are property; the information that guides your actions is not property.”

          And what do you make of the ‘scarce means’ that were expended by the inventor to arrive at that information? Without a means to capitalize, why would the inventor expend those ‘scarce means’ in the first place? And, if the inventor’s only option is to keep it a trade secret, wouldn’t the information itself become a ‘scarce means’? So, by your logic (i.e. the information is not property to the extent it is not scarce), only when the information is publicly disclosed does it no longer qualify as being property. Well, shouldn’t the inventor get something in return for that public disclosure? A time-limited monopoly perhaps?
     195. 23

          Stephan,

          1) You agree that one can own property; and that one can sue the thief for trespass.

          2) What you deny, then, is that one can own an idea.
     196. 22

          Let me get this straight, what you are advocating is intellectual property communism.

          As I’m sure you know, pure communism (note the root word of “commune”) is about sharing the fruits of your own labor with the members of the commune (“from each according to his ability to each according to his needs”). What you are advocating is that once the intellectual property has been disclosed by the creator, this intellectual property no longer belongs to the creator. Instead, it belongs to the commune, each member of which is able to use that intellectual property in any way they see fit (i.e., no negative servitude imposed by the state).

          The advocates of the anti-patent system oftentimes point to the free open source software (FOSS) community as a shining example of what can happen when a group of people work as one to solve a problem – none of whom have any expectation of enjoying a profit. Instead, they rely upon the altruistic motives of their fellow programmers (let’s call them “comrades”) to create software that can be freely used/copied by anybody. This is technology communism – comrades pulling together as one (each contributing according to his own ability) to benefit the commune as a whole.

          Have I characterized your position correctly? If not, please explain why the term “communism” does not apply to the free sharing of intellectual property, as you advocate,
     197. 21

          All these ‘exchange’ things you mention; they sure sound like ‘contract’ to me. Isn’t that one of your recognized property producers? If I can sell my time and knowledge (or for that matter, just my knowledge) for cash, haven’t I created property that was not there before (cash in hand)?
     198. 20

          No, because the owner owns his property, that the thief has stolen. The entire argument against patents is based on respecting property ownership in such scarce goods.
     199. 19

          bad joke:

          Libertarians include both minarchists (minimal state) and anarchists. But the case against IP is not dependent on the anarchist view. All you need is to accept standard Lockean property and contract rights, to see that patent and copyrgiht are totally inconsistent therewith.

          As for your “invent first” comment: this is false. If A invents first, then B invents second, and B then gets a patent , then B can stop A from making, using, or selling his own invention.
     200. 18

          Has anybody done any studies on the net benefits provided to the US economy because of intellectual property?

          There are two factors to be considered: net benefits and net cost. The anti-patent side likes to look at the cost without considering the benefits. Unless you look at both you CANNOT say, with any certainty, whether or not the intellectual property system provides a benefit to the US economy.

          “though they have no evidence for this at all.”
          Except all the venture capitalists who invariably ask “do you have any intellectual property?” when vetting company.
     201. 17

          This is not an argument for patent or copyright. Of cousre people will pay money in exchange not only for another owned object (say, a gold coin paid in exchange for a cow), but to achieve other desired ends. For example I might want my niece to go to college; so I tell her I will pay her tuition if she goes. Iam not buying her “going to college”; I own nothing. However I achieve my end, if she reponds. i pay her, because I agreed to transfer the money based on a specified condition.

          Likewise I might want to learn something. So I pay a teacher to teach me. I am giving him money to perform an action: impart information to me. I might pay a painter to paint my house: I am giving him money conditioned on his performing an action: painting. I don’t own his action, and I don’t own the teacher’s teaching, but I get some useful end out of it: a nicer-looking-house, or more-knowledge-in-my-head. None of this proves that information is ownable.

          There is nothing wrong with paying people to invent, to do research, or to teach you things. Learning is good. Information is good. Information guides action. We need it to decide what ends to pursue, to know what things are possible; to decide what scarce (rivalrous) means to select to causally achieve the desired end (efficiency). WE have to own the scarce means of action, but you do not have to own the end of action: if hte end of action is to achieve some physical object, sure, in that case, like when I want to buy a watermelon. But if my end is to get my niece to go to college, I don’t acquire any owned object; I satisfy my desire however. But the point is you have to own the means of action, by definition; they are scarce. But you do not have to own information that guides your action: a million people can use the same information at the same time. for example a million people can make Granny Smith’s Chocolate Cake at the same time, if they all have the same recipe (information, knowledge, pattern). Yet they have to each use their own scarce means — oven, mixing bowl, spoon, sugar, flour, etc. The scarce means are property; the information that guides your actions is not property. IT literally cannot be property. Patent and copyright law in fact are just disguised transfers of physical property. For example if Samsung infringes apple’s patent, this just provides the legal excuse for the court to use physical force to seize an take (or coerce) some of samsung’s MONEY and give it to apple. It’s always aobut control of scarce, owned resources, like Samsung’s money and factories and raw materials–if Apple wins, it gets to tell Samsung what it cannot do with its own property. In effect the patent is a grant by the state of a negative servitude or easement in Samsung’s property. That is theft. (for more see link to c4sif.org )
     202. 16

          It’s not strange at all; this is the essence of Lockean and libertarian property systems: that the fact of scarcity (rivalry) is the reason we need property rights, which are designed to assign one owner to each such resource so they may be used cooperatively and productively. If not for scarcity there would be no social problem to solve, no problem of conflict, no problem of want, no need for social property rules. THe whole purpose of property rights is to allocate scarce resource. David Hume recognized this. THis is not “strange”.
     203. 15

          Objectivists are usually viewed as a type of libertarian, though Rand herself denied this (but she was wrong). Her political views she called “capitalism” and they are essentially the same as so-called “minarchist” libertarianism.

          Mossoff’s own arguments, like Rand’s, are a hodge-podge of utilitarian and .. something else. My own arguments are not libertarian. They are principled and rooted in individual and propety rights. I simply show that state-granted patent privileges undermine and violate the individual and property rights that other libertarians–Objectivists included–say they favor.
     204. 14

          This is not an argument. After all you could say this about any law whatsoever that infringes on individual or property rights. If the law hampers someone’s liberty or rights then it needs an actual jusification. And there is no justification for IP law. Most people do not even try. They typically assume some utilitarian standard for evaluating policy (a given law is justified if it promotes utility, increases net wealth, etc.), which is itself a controversial (and false) position; and then they just assume that the patent system actually contributes to net wealth, though they have no evidence for this at all. In fact it’s likely the patent system imposes hundreds of billions of dollars in net cost on the US economy every year. See Costs of the Patent System Revisited link to blog.mises.org
     205. 13

          Of course Mossoff is pro-patent. He’s an Objectivist. Ayn Rand was a huge proponent of IP.
     206. 12

          Incidentally, my impression is that libertarian thought on IP is not that unsettled: it has been moving steadily and rapidly towards abolitionism for the last 10 years, especially among anarchist libertarians, Austrian-economics influenced libertarians, and left-libertarians. Utilitarian-type libertarians and minarchists are increasingly skeptical, but don’t tend to take a principled or radical abolitionist position. The primary holdout in favor of IP comes from those influenced by Ayn Rand’s Objectivism, such as Professor Mossoff.

          SEe, e.g., my article The Death Throes of Pro-IP Libertarianism, also my blog posts The Four Historical Phases of IP Abolitionism and The Origins of Libertarian IP Abolitionism.
     207. 11

          Why thank you for the notice, Dennis. SK
     208. 10

          There is a clear difference: Ned is anti-patent for selected categories. Stephan is anti-patent against not only all categories, but is also anti-IP (including copyright and trademark).
     209. 9

          I have never viewed Adam as a “libertarian.” Part of this stems from my prior conversations with him where he said that he was not, in fact, a libertarian.

          In fact, Adam’s prior lectures at the Ayn Rand institute specifically criticize libertarian scholarship on patent policy for relying on utilitarian arguments (pro or con).
     210. 8

          “Kinsella is one of the thought leaders of the modern anti-patent libertarians ”

          Whaaat??? I thought Ned Heller was the leader of the anti-patent libs…
     211. 7

          Mr. Kinsella did not reply to my post in the other thread about whether it is a violation of a thief’s property rights in a stolen item of property if one can sue the thief for trespass?
     212. 6

          Sounds more like an anarchist than a libertarian. They’re not the same thing. You’re free to invent first by the way.
     213. 5

          Here is a situation for our libertarian friends: Let’s say someone you love is dying of scurvy, and you even have a lime tree on your private property, but don’t know about how to use it. All that is missing is a little timely knowledge. If this were a new thing, would you be willing to pay a small royalty to a doctor / pharmaceutical for the new use of vitamin C?

          (Cite and good summary of the scurvy story back when it was new. There are, of course, modern examples of new and valuable uses for private property.)

          Rogers, Everett M. Diffusion of innovations 4th ed. The Free Press 1995.

          link to d.umn.edu

          “Controlling Scurvy in the British Navy:
          Innovations Do Not Sell Themselves

          Many technologists believe that advantageous innovations will sell themselves, that the obvious benefits of a new idea will be widely realized by potential adopters, and that the innovation will therefore diffuse rapidly. Seldom is this the case. Most innovations, in fact, diffuse at a disappointingly slow rate.

          Scurvy control illustrates how slowly an obviously beneficial innovation spreads (Mosteller, 1981). In the early days of long sea voyages, scurvy was a worse killer of sailors than warfare, accidents, and all other causes of death. For instance, of Vasco de Gama’s crew of 160 men who sailed with him around the Cape of Good Hope in 1497, 100 died of scurvy. In 1601, an English sea captain, James Lancaster, conducted an experiment to evaluate the effectiveness of lemon juice in preventing scurvy. Captain Lancaster commanded four ships that sailed from England on a voyage to India; he served three teaspoonfuls of lemon juice every day to the sailors in one of his four ships. Most of these men stayed healthy. But on the other three ships, by the halfway point in the journey, 110 out of 278 sailors had died from scurvy. The three ships constituted Lancaster’s “control group”; they were not given any lemon juice. So many of these sailors became sick that Lancaster had to transfer men from his “treatment” ship in order to staff the three other ships.

          The results were so clear that one would expect the British Navy to adopt citrus juice for scurvy prevention on all its ships. But it was not until 17 47, about 150 years later, that James Lind, a British Navy physician who knew of Lancaster’s results, carried out another experiment on the HMS Salisbury. To each scurvy patient on this ship, Lind prescribed either two oranges and one lemon, or one of five other diets: A half-pint of sea water, six spoonfuls of vinegar, a quart of cider, nutmeg, or seventy-five drops of vitriol elixir. The scurvy patients who got the citrus fruits were cured in a few days, and were able to help Dr. Lind care for the other patients. Unfortunately, the supply of oranges and lemons was exhausted in six days.

          Certainly, with this further solid evidence of the ability of citrus fruits to combat scurvy, one would expect the British Navy to adopt this technological innovation for all ship’s crews on long sea voyages, and in fact, it did so. But not until 1795, forty-eight years later. Scurvy was immediately wiped out. And after only seventy more years, in 1865, the British Board of Trade adopted a similar policy, and eradicated scurvy in the merchant marine.

          Why were the authorities so slow to adopt the idea of citrus for scurvy prevention? A clear explanation is not available, but other, competing remedies for scurvy were also being proposed, and each such cure had its champions. For example, Captain Cook’s reports from his voyages in the Pacific did not provide support for curing scurvy with citrus fruits. Further, Dr. Lind was not a prominent figure in the field of naval medicine, and so his experimental findings did not get much attention in the British Navy. While scurvy prevention was generally resisted for years by the British Navy, other innovations like new ships and new guns were accepted readily. So the Admiralty did not resist all innovations.

          This case illustration is based on Mosteller (1981).”
     214. 4

          Informatics Outsourcing is an Offshore Intellectual Property Services company. They are providing Intellectual Property services for Bio Technology, Biochemistry, Drug Discovery, Chemistry, etc
     215. 3

          So private property rights means that I can do what I wish with my private physical property, but if that property is not physically controllable, it’s out of my hands? That’s a very strange interpretation of libertarianism. I guess Mr. Kinsella would then advocate for strong trade secret protection (because then I can physically protect my property), and doesn’t accept the trade-off of disclosure for protection provided by the patent system.
     216. 2

          I have never viewed Adam as being “pro-patent”. I have always viewed him is a scholarly student of history, philosophy, economics and law, which serves as a basis for challenging much of the “anti-patent” rhetoric.

          Challenging rhetoric is not, in my view, the same as being “pro-patent”, nor, to use Stephen’s pejorative phrase, does it make one a “patent apologist”.
     217. 1

          “When some third party holds a patent, that patent limits what I can do with my scarce private property as well as my individual freedoms.”

          Welcome to the real world and the fact that you have to live with other people. In order to have society, some individual “wants” go bye-bye.