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Libertarians and Patents: Kinsella vs Mossoff (Dennis Crouch, 2012)

From Patently-O, 2012. See also: Mossoff: Patent Law Really Is as Straightforward as Real Estate Law; and re negative servitudes: Intellectual Property Rights as Negative Servitudes and Libertarian Answer Man: Restrictive Covenants and Homeowners Associations (HOAs).

Libertarians and Patents: Kinsella vs Mossoff

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.

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. 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.

  9. 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?

  10. 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?

  11. 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?

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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.

  20. 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?

  21. 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?

  22. 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!

  23. 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.

  24. 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.

  25. 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.

  26. 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.

  27. 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.

  28. 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.

  29. 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.

  30. 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.

  31. 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?

  32. 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.

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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.

  39. 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.

  40. 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.”

  41. 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.

  42. 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.

  43. 167

    Doesn’t matter which.

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

    Why the dichotomy?

  44. 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.

  45. 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?

  46. 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!

  47. 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?

  48. 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?

  49. 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

  50. 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

  51. 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.

  52. 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

  53. 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?

  54. 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.

  55. 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!

  56. 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.

  57. 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?

  58. 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?

  59. 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?

  60. 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!

  61. 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.

  62. 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.

  63. 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.

  64. 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.

  65. 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.

  66. 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?

  67. 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.

  68. 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.

  69. 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?

  70. 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.

  71. 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.

  72. 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.

  73. 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.

  74. 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.
     

  75. 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.
     

  76. 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).

  77. 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.

  78. 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?

  79. 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.

  80. 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).

  81. 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.

  82. 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.

  83. 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.

  84. 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?!”

  85. 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.

  86. 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.

  87. 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?

  88. 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?

  89. 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.

  90. 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.

  91. 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.

  92. 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?

  93. 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.

  94. 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.

  95. 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).

  96. 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?

  97. 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.

  98. 105

    Not interesting, not on point, not substantive.

    Not

    *click

    Not disputed.

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

  99. 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.

  100. 100

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

  101. 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.

  102. 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.

  103. 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?

  104. 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.

  105. 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

  106. 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.

  107. 89

    as to the value of patents?

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

  108. 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.

  109. 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.

  110. 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)

  111. 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.

  112. 82

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

  113. 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.”

  114. 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.

  115. 79

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

    How do you enforce contracts without the state?

  116. 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.

  117. 75

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

  118. 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.

  119. 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.

  120. 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.

  121. 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.

  122. 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.

  123. 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”

  124. 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?

  125. 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]

  126. 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.

  127. 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.

  128. 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.

  129. 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.

  130. 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.

  131. 54

    Nailed it.

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

  132. 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.

  133. 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?

  134. 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.

  135. 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.

  136. 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.

  137. 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 ….

  138. 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.

  139. 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?

  140. 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.

  141. 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?

  142. 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.

  143. 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.

  144. 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.

  145. 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

  146. 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.

  147. 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.

  148. 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.

  149. 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.

  150. 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?

  151. 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.

  152. 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?

  153. 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.

  154. 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?

  155. 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?

  156. 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?

  157. 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.

  158. 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,

  159. 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)?

  160. 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.

  161. 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.

  162. 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.

  163. 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 )

  164. 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”.

  165. 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.

  166. 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

  167. 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.

  168. 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).

  169. 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).

  170. 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…

  171. 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?

  172. 6

    Sounds more like an anarchist than a libertarian. They’re not the same thing. You’re free to invent first by the way.

  173. 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).”

  174. 4

    Informatics Outsourcing is an Offshore Intellectual Property Services company. They are providing Intellectual Property services for Bio Technology, Biochemistry, Drug Discovery, Chemistry, etc

  175. 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.

  176. 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”.

  177. 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.

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