Related:

• How to Improve Patent, Copyright, and Trademark Law
• Patent Reform is Here! O Joy!
• KOL164 | Obama’s Patent Reform: Improvement or Continuing Calamity?: Mises Academy (2011)
• The America Invents Act and Patent Reform: The Good, the Meh, and the Ugly

In my article “Radical Patent Reform Is Not on the Way” I noted that the the organized patent bar and intellectual property (IP) advocates routinely decry proposed changes to patent law as “radical.” Patent attorney John R. Harris, for example, ominously intones:

The U.S. has the best patent system in the world. What I’m afraid of is that they are about to throw the baby out with the bathwater.… The new rules are radical. The new legislation is radical. They will cause fewer patents to be issued.

But, as I noted, patent law is always evolving due to court decisions, new rules issued by the PTO, and new legislation from Congress. None of it is really that significant (see Patent Reform Is Here! O Joy!). It’s all nibbling around the edges–just like the entrenched interests like it.

In fact, though various details of the patent system continue to morph pursuant to political pressures and legal trends, the essential aspects of the patent system have not changed at all: The scope of what is patentable has not shrunk appreciably. The term is still about seventeen years. Patents are still enforceable by injunction. The groundless presumption of validity is alive and well. Patent defendants who win usually pay their own legal fees, as before. Defending patent lawsuits continues to be incredibly expensive. Lobbying goes on as before. Companies continue to need to obtain patents if only for defensive purposes (Google offered over 3 billion recently for Nortel’s 6,000-patent portfolio, and lost; now it will have to lobby Congress and hire more patent lawyers to try to acquire a patent arsenal and defense strategy–yeah, a real productive use of its hard-earned profits).

Obviousness and novelty remain the standards for patentability — and these standards are still vague, nonobjective, and subject to unpredictable interpretation by an inept and bureaucratic government agency, by state courts, and by technically inept juries. And the patent system is still widely believed to be legitimate and necessary even while it is widely derided as seriously flawed.

And so, for the foreseeable future, companies will continue to spend lots of money obtaining patents. And small businesses will still face the threat of patent-infringement lawsuits and court-ordered injunctions that could put them out of business. And these suits will continue to cost literally millions of dollars to defend. “Bad” patents will keep being granted, and various patentability standards will always be murky, arbitrary, and uncertain.

And a recent round-up by Columbia Law Professor Ronald Mann of recent U.S. Supreme Court decisions confirms this assessment (Tide turns for Federal Circuit in patent cases). Mann examines how the Supreme Court has treated the lower Federal Circuit’s patent decisions recently. As Mann notes:

One of the most interesting features of the just-ended Term’s decisions is the surprising resurgence of the Federal Circuit.  For almost a decade, the Court has been on an apparent campaign to rein in “patent exceptionalism” at the Federal Circuit.  Thus, in a series of cases starting with eBay v. MercExchange, the Court has reversed pro-patent decisions of the Federal Circuit that rely on doctrinal peculiarities developed at the Federal Circuit level.  eBay itself rejected a presumption in favor of injunctive relief.  KSR v. Teleflex forced up the threshold for establishing that a patent describes an invention that is not “obvious” in light of prior art.  And although it affirmed the judgment of the Federal Circuit in Bilski v. Kappos, the Court implemented a major retrenchment in the Federal Circuit’s decade-long experiment in permitting relatively unbounded patenting of business methods.

In other words, even the relatively minor limits the Supremes placed on the Federal Circuit’s patent decisions in recent years is now going the other way. All those judges are just employees of the federal government. It’s unreasonable to expect them to systematically rule against their own interest.

Ridiculous lawsuit by one photographer against another: At What Point Does Inspiration Turn Into Copyright Infringement? discusses

a lawsuit recently filed by photographer Janine Gordon against photographer Ryan McGinley. Gordon claims that 150 of McGinley’s images — including some used for a Levi’s ad campaign — are “substantially based” on her photos. In the three pairs of disputed images shown above, the ones on the left are by Gordon and the ones on the right by McGinley.

Of course the pictures are not the same at all. And so what if McGinley’s work was inspired by Gordon’s? So what? There is nothing wrong with competition, emulation, inspiration, learning, or even copying (not that there appears to be any proof of copying or even emulating here). Photographers are notoriously pro-copyright, and this dispute is just the predictable outcome of the horrible pro-IP mentality. And this post is a bit confused: it starts off asking “At what point does inspiration turn into plagiarism?” Plagiarism is distinct from copyright infringement. They are not the same; neither implies the other. The post quotes “Rob Haggart over at A Photo Editor” as saying “this is where copyright hurts photographers.” Right. And the rest of the time, photographers use copyright to hurt everyone else. The false dichotomy here is the implication that we have to choose between “inspiration” (presumably permissible) and “plagiarism” (presumably by this they mean copyright infringement). The answer is that some inspiration is permitted by the law, while some is prohibited by copyright. There’s a word for this: censorship.

From NY Times (h/t Wendy McElroy):

Company Agrees to Share AIDS and Hepatitis Drugs With Patent Pool

By DONALD G. McNEIL Jr.

Published: July 12, 2011

In the first agreement between a pharmaceutical company and the new international Medicines Patent Pool, Gilead Sciences announced Tuesday that it would license four of its AIDS and hepatitis B drugs to the pool.

The move is particularly important because it includes tenofovir and emtricitabine, which have emerged as important components of AIDS therapy and new prophylaxis regimens, like vaginal microbicides for women and once-a-day pills protecting gay men. Many poor countries now have only older drugs, some of which have harsh side effects.

Health advocates have long championed the idea of a pool: an independent agency that would hold patents on drugs and sub-license them to low-cost manufacturers for low or no royalties on the condition that they supply only poor countries. (In Uganda, above, cost cutting has set back anti-AIDS programs.)

The pool was created last year, but drugmakers resisted it, wanting to control quality and protect rights to future profits from middle-income countries. Until this week, the only participant was the National Institutes of Health, which turned over a partial patent on an obscure AIDS drug.

Read more>>

From Prometheus Unbound’s post NEWS ROUNDUP | Trek Socialism, SF Encyclopedia Online, Innovations in Publishing,

• Angry Robot Books, the British-based global science fiction and fantasy publisher, recentlyannounced a Netflix/Audible-like subscription model. Purchase a 12-month subscription to Angry Robot titles and you will receive an ebook (in epub format) for every book they publish in that time period, which will be a minimum of 24 ebooks, at a one-time price of £69.00. Follow the second link for more information.
• Kristin Butler over at Brain Pickings has an interesting article about “7 Platforms Changing the Future of Publishing.”

IP continues to draw ever more scrutiny. And no wonder; in the Internet age IP law wreaks more and more havoc. I doubt this book will contain any libertarian, principled perspectives on IP, but you can see a growing concern and skepticism. (H/t Mark Thornton)

Making and Unmaking Intellectual Property

Creative Production in Legal and Cultural Perspective

Edited by Mario Biagioli, Peter Jaszi, and Martha Woodmansee

480 pages | 39 halftones, 3 line drawings, 7 tables | 6 x 9 | © 2011

Rules regulating access to knowledge are no longer the exclusive province of lawyers and policymakers and instead command the attention of anthropologists, economists, literary theorists, political scientists, artists, historians, and cultural critics. This burgeoning interdisciplinary interest in “intellectual property” has also expanded beyond the conventional categories of patent, copyright, and trademark to encompass a diverse array of topics ranging from traditional knowledge to international trade. Though recognition of the central role played by “knowledge economies” has increased, there is a special urgency associated with present-day inquiries into where rights to information come from, how they are justified, and the ways in which they are deployed.

Making and Unmaking Intellectual Property, edited by Mario Biagioli, Peter Jaszi, and Martha Woodmansee, presents a range of diverse—and even conflicting—contemporary perspectives on intellectual property rights and the contested sources of authority associated with them. Examining fundamental concepts and challenging conventional narratives—including those centered around authorship, invention, and the public domain—this book provides a rich introduction to an important intersection of law, culture, and material production.

[continue reading…]

Luke Burrage, a professional juggler (but hey, aren’t we all?), does one of my favorite podcasts, The Science Fiction Book Review Podcast. His Episode 100, “Science Fiction and Personal Philosophy,” is fascinating–he explains many of his career choices and approaches to life and creativity. He has a long and rambling but interesting discussion–first thirty minutes or so–where he uses the metaphor of how his love of sci-fi and imaginative personal fantasies of time traveling to the past helps explain how he deals with living now. It sounds odd at first but if you get into it, it’s quite interesting. Basically he talks about how if he were transported to some primitive society somehow (time travel; alternate universe; goes into cold sleep and awakens in a future dystopian primitive society), it at first would seem that the advanced knowledge he has would help him to become like a god; or, if he were say put down 50 years ago, to know the trends that are coming — culturally, scientifically, etc.–and to win nobel prizes or fame and fortune. But then he shoots holes in all this and makes a good point that knowledge of this type is not enough. You would not know how to make a TV or transistor (unless you happened to be an expert in that) just because you know about them. You might know DNA is a double helix but would not be able to explain much more beyond this, or prove it. Etc. At most if you lived in the past then you would be a future guy living in the past, and maybe on occasion the extra information you have would come in handy or make you somewhat unique. His point is that he accumulates information now, in the real world, he is in a similar situation–not much different than some future man living among us. And that we ought to always accumulate knowledge and skills and be prepared to use them when the opportunity arises. He goes into a lot about serendipity and helping create your own luck and his ambitions in his career. The part I noted as relevant to IP and information is his implicit if not explicit recognition that good ideas are not enough; you need to execute and be prepared to execute. That is a point many critics of IP have noted, when they rebut claims that we need ownership of ideas, on the grounds that ideas are cheap and easy, and not what you need for success anyway. (BTW Luke’s use of the term “intellectual property” does not, I think, mean patent and copyright, but is just an informal usage common among businessmen to refer to successful ideas, reputation, skills, know-how, etc.)

“A Generation of Software Patents,” by James E. Bessen
Research on Innovation; Boston University – School of Law
June 21, 2011
Boston Univ. School of Law, Law and Economics Research Paper No. 11-31
Berkman Center Research Publication No. 2011-04

Abstract:
This report examines changes in the patenting behavior of the software industry since the 1990s. It finds that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry.

Related:

• Price Controls, Antitrust, and Patents (July 2011)
• Antitrust vs. Trademark Law (June 2011)
• The Schizo Feds: Patent Monopolies and the FTC (Aug. 2006)
• IP vs. Antitrust (Sept. 2005)
• The Microsoft-Apple Gesture Oligopoly
• Controls breed controls, Monopolies breed monopolies

Some older posts on when price controls and antitrust law are almost tolerable:

Patents, Prescription Drugs, and Price Controls

From an older Mises blog post:

Great piece by Nina Paley:

Culture is Anti-Rivalrous

Economists talk about rivalrous and non-rivalrous goods, but Culture is neither rivalrous, nor non-rivalrous; it is anti-rivalrous.

I. Rivalrous

Rivalrous goods diminish in value the more they are used. For example, a bicycle: if I use it, it gets me from here to there, if you use it, it gets me nowhere. If I acquire your bicycle, you don’t have it any more. Only one of us can have the bicycle at one time. We can share it to a limited extent, but the more it’s used the less it’s worth; it gets dinged up and wears out. The more people use the bicycle, the less utility it has.

If I steal your bicycle, you have to take the bus

All material things – things made of atoms – are rivalrous, because an object cannot be in two places at the same time. Everything in the physical world is rivalrous, even if it’s abundant.

A commons is a rivalrous good. Hence the “tragedy of the commons“: the more people use a square of land, the less valuable it is to each of them. The grass gets eaten too fast to grow back, the soil can’t handle the incoming rate of sheep shit, and degradation ensues. [continue reading…]

Fantastic insights in this Business Insider piece:

Your Start-Up Isn’t Unique, But That Doesn’t Matter 

Adam Ludwin, RRE Ventures

I’m a huge fan of Kirby Ferguson’s Everything is a Remix series.  If you haven’t watched the first three installments, you can (and should) do so here.The series lays out the persuasive case that big, important breakthroughs in science and technology are emergent phenomenon.  That is, they arise organically out of our collective, cumulative knowledge.  An “invention” is simply a historically demarcated tipping point on a continuous path of progress.

Fittingly, Furguson isn’t the first to point this out.

Henry Ford said:

Progress happens when all the factors that make for it are ready and then it is inevitable. To teach that a comparatively few men are responsible for the greatest forward steps of mankind is the worst sort of nonsense.

And long before Ford, the 18^th century mathematician Farkas Bolyai vividly observed:

When the time is ripe for certain things, they appear at different places in the manner of violets coming to light in early spring.

One of the remarkable implications of this theory of invention is that it de-emphasizes the individual innovator.  Not only are notable inventors standing on the shoulders of those who came before, but even their particular contributions are often made by others simultaneously:  Alexander Graham Bell and Elisha Gray patented the telephone on the same day; Charles Darwin and Alfred Russel Wallace independently advanced a theory of evolution; and Isaac Newton, Gottfried Wilhelm Leibniz, and others have all been credited with inventing calculus.

Read more>>

Great IP-related insights in Jeff Tucker’s article Show Love to the Merchant Class:

Then there’s the competition. Anyone is free to copy and replicate your successes. The more you succeed, the more you inspire imitators who are pleased to do exactly what you do but somehow manage to do it at a lower price. This means that you must constantly stay on your toes and innovate. At the same time, you have to constantly watch your back. A bad day of sales could mean nothing or it could mean everything. It could be a bump on the road to glory or the foreshadowing of disaster. There’s no way to know for sure.