“I said “Patents are the thing the little guy has that can make the government side with him against big business.” and Stephan replied: You really think the government is on the side of the small businessman? This is insane.

“Stephan, you misconstrue my argument. The courts and the enforcement mechanisms of the courts are the parts of government that I had in mind.”

I repeat my comment: you think the (courts of the) government are on the side of the small businessman?

“I agree with you that the Congress/Administration complex can be very destructive.”

CAN BE? How about ALWAYS IS.

“Stephan, you seem to be opposed to the government backing individuals claims of intellectual property rights, and simultaneously champion rights in other forms of property like realty, personal property, money and finance. Do you endorse the government aiding those property claimants from those who would threaten to take them away from the claimant?”

The state is inherently criminal and thus the only thing I “endorse” it doing is closing its doors. I’m an anarchist libertarian. But we can still distinguish between the state doing things that are not inherently wrong, such as protecting property rights, and doing things that are inherently wrong, such as committing aggression (taxing, bombing Iraqis, jailing pot smokers, granting patents). The problem with the state doing the latter is not that it is the state doing it–it is that these things violate rights, no matter who does them. The problem with the former is not what the state is doing, but *that* the state is doing it–it has no right to monopolize the justice system.

” Should we tell the government to stay out of the way of theives and fraudfeasors?”

Yes, it should stay out of it and let people alone.

“I assume your answer is no, but I don’t see your argument for why the line should be drawn to allow that sort of government aid but not aid to those who document that their new developments meet the standards for a patent.”

Because if the state is going to outlaw competition and monopolize the business of law and security, at least it shoudl stick to things that are legitimate–protecting property from invastion is a legitimate type of thing to do; the state should not assume the sole role of doing this, but if it does, it should stick to protection of actual property rights. It should not commit aggression, which it does when it enforces others types of laws, such as IP law.

“Do you favor protecting the rights of authors of novels? photographers? painters? companies that we now call trademark owners?”

I explain this in detail in my Against Intellectual Property. Try doing a bit of reading.

Do you favor protecting the rights of authors of novels? photographers? painters? companies that we now call trademark owners?

Stephan, you misconstrue my argument. The courts and the enforcement mechanisms of the courts are the parts of government that I had in mind. I agree with you that the Congress/Administration complex can be very destructive.

You wrote: “Even if you assume that the curve in question is just a nice “bump”, rising monotonically to a maximum at some point and then falling again (which we have no particular reason to believe), and that the maximum point doesn’t change over time, how can you determine where it is?”

Not only that–why would you trust the state to be able to–or even try to–find this optimum, even assuming it exists?

Do you know anything about picking the right point on the curve that maximizes revenue based on Price vs. Quantity? The same thing obviously applies to picking the right patent term.

Even if you assume that the curve in question is just a nice “bump”, rising monotonically to a maximum at some point and then falling again (which we have no particular reason to believe), and that the maximum point doesn’t change over time, how can you determine where it is? You’d can change the term, and then wait and see the effect…but how long do you have to wait? It’s going to have to be at least several decades, right? And meanwhile you can’t account for many other variables that would affect the outcome (like the rate of potential innovation — new inventions don’t happen on a schedule). And if the curve is a wiggly line, even if there’s a global maximum, you can’t even tell if you’ve moved toward it or away from it (even if the total innovation, other variables accounted for, goes down, you might have moved to a locally lower point on the curve in the direction of the global maximum, so the right thing to do is to adjust the term further in the same direction, but if you think it’s a “bump” you’ll move it in the other direction instead!)

{Many economists make the same error, with the so-called “Laffer curve” stupidity}

Because I recognize the obvious, that patent term should be set at an appropriate level to provide enough incentive and encouragement to generate maximal activity I am being arbitrary.

No. But if you claim that 20 years is closer to that level than 1000 years, or 0 years, or any other number, you’re being arbitrary, because you have absolutely no way to know that. Besides, it’s only “obvious” if you’re a utilitarian — even if you could know that a patent term of x (for non-zero x) would “generate maximal activity”, that doesn’t make enforcing patents moral.

It is bizarre to see your umbrage here. You have the majority opinion, and you have won: your favored system is in force, and it is foisted on us dissenters. I am part of a small minority, and have no choice but to comply with the unjust rules that you favor and that your state is foisting on me. All I’m doing is disagreeing, inefficaciously. It’s not enough for you that you are part of the majority and are *getting your way*? I assure you, I’d be happy to have the tables turned: to have the immoral patent system abolished, and have a few interventionists whining about it–I wouldn’t begrudge this to you.

Your attempt to turn this personal doesn’t work, I”m afraid, because I don’t take the bait, and because it’s plain to anyone that the normative fabric of the universe does not depend on the actions of a 44 year old attorney in Houston, Texas. It’s not about me, man. It’s about whether patent law is justified. (But on that score: calling me a sellout and hypocrite is bizarre; I’ve taken a stand contrary to my financial interest; if anything, it is the pro-patent opinions of those who have a financial interest in the patent system that should be suspected of bias.)

Anyone reading can see that I’ve given ample, systematic, thoughtful reasons for doubting the IP case. I’m happy to let them read my careful, sincere, informed arguments, and your own scattershot offerings, and decide between them.

I am not going to play by your facts, which are not facts whatsoever. I have presented questions for you, and you ignore them. We all know that is because you cannot answer them without agreeing with me, so you simply change the questions and claim you are answering me. This is old, tired and I have no interest any more. Arguments are not facts, and ignoring reality, human nature and laws of economics while asserting your credentials as a response to substance is nothing more than smoke and mirrors.

I get it, we cannot have a debate. That is fine. The fact that human history on my side is obviously not facts you would support. Go ahead and be a patent attorney who believes 0 years of patent is appropriate. If that is your view you are entitled to it, but don’t get on your high horse because I have the audacity to point out that you are a hypocrite and sell out. Stand up for what you believe, practice what you preach, or leave us alone. Acting on beliefs and facts is not immoral, although participating in a regime you fundamentally disagree with to the detriment of your clients is exactly immoral if not unethical.

-Gene

By retuning to the issue of whether something else “works” you are ignoring my claim that utilitarianism doesn’t justify IP rights, but nontheless yes, I can point to periods of significant innovation in which there were few enforced IP rights. Specifically, at the beginning of the Enlightenment in Europe, and the burgeoning scientific age, plenty of innovations were created, a flourishing of industry and growing economy followed, and IP rights very still only modestly pursued. Similarly with a preceding age, the Renaissance. These were great times of art and industry, and the modern era essentially sprung from them, yet who can point to a single patented item or group of items or arts that caused this growth? Rather, it was science and empiricism as working paradigms for discovering truths that paved the way for the modern era. Only later, in the twentieth century, did industries begin to rely so strongly on IP rights to protect their market shares.

Nevertheless, my argumetns against IP remain untied to utilitarian issues.

best,
David

“It is getting extremely old for you to say I am not discussing the issue. It is you who ignore facts. It is time for you to address facts, rather than blow them off as if they are meaningless. How can you actually read what I write and see no discussion of the issues?”

Gene, I am sorry to annoy you, but that is how you come across to me. You keep saying “address the facts” like a scientistic monomaniac, even though you are giving no facts at all; the only facts in issue are studies that almost universally support our view not yours; you just ignore these.

I have carefully and systematically explained what is wrong with the various arguments in favor of IP. You have ignored every one of them. In fact, to be honest, I am not sure you even understand what I’m saying. You seem to be so mired in engineers’ syndrome and scientism (and I would guess you don’t even know what I mean by scientism, or why it’s a pejorative) that my normative reasoning sounds like babble to you. It is understandable many engineers have trouble following coherent, systematic, normative and political reasoning without resorting to their inadequate empiricist comfort zone, but why they think they ought to weigh in on matters in which they are out of their depth is beyond me.

As the great Murray Rothbard once wrote, “It is no crime to be ignorant of economics, which is, after all, a specialized discipline and one that most people consider to be a “dismal science.” But it is totally irresponsible to have a loud and vociferous opinion on economic subjects while remaining in this state of ignorance.” http://mises.org/story/2197

“I know this will come off as rude, but I am going to say it anyway. I am starting to question your intellectual abilities and honesty. Ignoring facts, dodging issues and then repeating pat non-answers is hardly intellectually honest. Either you have nothing to say and resorting to liberal debating tricks and tactics or you are a lightweight.”

I don’t mind. But out of charity I will refrain from characterizing you. I’m certainly happy to let your comments speak for themselves, and for readers to judge which of us is the intellectual lightweight. But I might refer you to the Rothbard comment above.

“You say: “You really think the government is on the side of the small businessman?”

REPLY: I did not say that, you know I did not say that and it is absurd for even you to insinuate that is what I said.”

Gene, as you can see from my reply, that was a reply to Cowboy.

” Businesses need to look out for themselves and use what tools the government provides to their advantage.”

Sure, I agree. But that does not mean the state should provide the system in the first place.

” No one is on the side of anyone, which is why businesses and individuals need to stand up for themselves and be accountable for their decisions. A decision to knowingly not seek patents because of a philosophical objection is flat out stupid.”

Sure. Did I imply otherwise?

“REPLY: Once again I am baffled. You say 0 years of term is preferable, the patent system is a terrible thing and yet you look out for threats from competitors.”

Yes, the patent system is terrible, because it lets people threaten my company (for example). Because of these threats. I have to look out for them. There is nothing here to baffle anyone.

“Obviously, these things are mutually exclusive. Why not practice what you preach? Patents are evil and should be 0 years of term, so that means your clients should not seek patents and enjoy the 0 years of term that come with no patents. Looking out for competitors is silly if you want no exclusivity, with unchecked competition that allows complete and total copying and rip-offs.”

Now you seem once again to be making a (lightweight, amateur) hypocrisy argument yet again. Your reasoning is laughable but let’s say you’re right. Okay, I’m a hypocrite. How, pray tell, does that show that the patent system is justified?

Your response here is all beside the point. What is the relevance of whether or not I’m a lightweight, or a hypocrite? You have not responded to my careful reasons about flaws in the IP case; you have not responded to the dozens of studies we pointed you to nor provided any of your own (you only said to ignore the studies and focus on “the history”). You continue to presuppose a host of (false) normative assumptions (about the nature and purpose of law and rights, for example; the nature of science and economics) without, apparently, even realizing you are doing this or the need to make these explicit and to justify them. You continue to speak from a hampered scientistic perspective where norms collapse into “facts” (which you don’t have anyway) until you want to re-assert them back as norms again, using some crude intuitionism.

Again, I will note that you need to show how you know that the patent system generates more wealth than it costs. If you know this, tell us how, and tell us what the net gain is–say, in billions of dollars. Until you do this, you are quite obviously just repeating the state’s own propaganda that it uses to defend its actions.

I understand your causation vs. correlation argument, I really do. I also know you are not a socialist, and maybe I should have even gone there. I was just trying to point out that on paper a lot of things look good. Who wouldn’t want socialism if it worked? Living in the Garden of Eden where everyone gets along and does things that better society for the fact that it betters society. Who wouldn’t want to live in Utopia or Heaven? That was my point. I just don’t think it can exist given the human condition.

I think a public funding model works VERY well in instances. Bayh-Dole is one of them, and in sponsoring research that is pure science and may not lead to anything is another. But how much money would need to be spent to equal that which is spent now? A public funded model just couldn’t approach those amounts, which would mean less spending, less looking and that has to lead to less discovery and innovation. I think Bayh-Dole works so well because it primes the pump and then gets out of the way.

Let me try this. I know you don’t want to talk about history because of correlation vs. causation. Nevertheless, is there any evidence at all that you can point to of an historical, objective proof that could even suggest no or limited rights would be better? I can think of none. This is the same problem I have with the Obama agenda. Will it work? Who knows for sure, nobody knows. What can be said with great authority is that it has never worked at any point in history, and has repeatedly failed when tried. That being the case, why do we call plays from a playbook without any historical success. Doesn’t make any sense to me. Where it is causation or correlation, why deviate in hopes?

The fundamental thought process of an engineer is that if it is not broken don’t fix it. What separates engineers from scientists is that engineers factor in reality and if theory says it can’t or won’t happen, but it does, then it does and that is to be accepted and factored into things, particularly when it is repeatable.

-Gene

It is getting extremely old for you to say I am not discussing the issue. It is you who ignore facts. It is time for you to address facts, rather than blow them off as if they are meaningless. How can you actually read what I write and see no discussion of the issues?

I know this will come off as rude, but I am going to say it anyway. I am starting to question your intellectual abilities and honesty. Ignoring facts, dodging issues and then repeating pat non-answers is hardly intellectually honest. Either you have nothing to say and resorting to liberal debating tricks and tactics or you are a lightweight. I don’t know which it is, but it is obvious to everyone that there is no substance and you simply ignore valid points, facts and logic. Very sad indeed.

By way of further answer…

You say: “You really think the government is on the side of the small businessman?”

REPLY: I did not say that, you know I did not say that and it is absurd for even you to insinuate that is what I said. Businesses need to look out for themselves and use what tools the government provides to their advantage. No one is on the side of anyone, which is why businesses and individuals need to stand up for themselves and be accountable for their decisions. A decision to knowingly not seek patents because of a philosophical objection is flat out stupid.

You say: “My current client is a small company. I am continually on the lookout for threats to us from competitors. It’s a terrible thing, the patent system. It can put small companies out of business.”

REPLY: Once again I am baffled. You say 0 years of term is preferable, the patent system is a terrible thing and yet you look out for threats from competitors. Obviously, these things are mutually exclusive. Why not practice what you preach? Patents are evil and should be 0 years of term, so that means your clients should not seek patents and enjoy the 0 years of term that come with no patents. Looking out for competitors is silly if you want no exclusivity, with unchecked competition that allows complete and total copying and rip-offs.

-Gene

Thanks for keeping a somewhat open mind about it. Please also note that my deontological argument precludes changing my mind unless you can successfully convince me about the injustice of my axioms. That said, I think the US is the best place to try the experiment, perhaps one technological or scientific sector that is already well funded through public funding. In fact, it’s the only way since it is the leading “innovator” according to your standards. The problem of proof in historical events are simply that: we can only see one thing following or proceeding another, but unlike physics, we cannot prove causation, we can only suggest it through correlation.

And no, I’m certainly not a socialist. Clearly, since I don’t think governments should be in the business of providing monopolies to anyone, I oppose statism. I think science ought to be funded through voluntary public pools of money as well. All systems of government involving privilege will tend toward injustice, so I oppose patents and other legal artifacts that skew the free market.

best,
David

Cowboy: “Stephan, I refer to you by name, not to be personal, but to focus the argument so that the points I make are considered in light of the points you make and are not intended as personal attacks.”

I didn’t say they were. I answered you calmly and dispassionately.

“The fact that Stephan usually has big corporations as clients may color his thinking.”

My current client is a small company. I am continually on the lookout for threats to us from competitors. It’s a terrible thing, the patent system. It can put small companies out of business.

I’ve represented individual inventors before but I dislike it. For one thing, they are usually very cheap and nickel and dime you. For another, they think their invention is the most important thing in the world so if they get a rejection, they are too stubborn to accept it–big companies know it’s a numbers game and are more sophisticated. Third, it’s often a waste of their money–they get the patent, and it papers their wall. $15k wasted.

“Big corporations have less need of patents than little guys, because they have financial, market place, and staffing advantages that the little guys don’t have and can out-compete the little guys in a patent-free world.”

They need patents to ward off suits from big competitors.

“Patents are the thing the little guy has that can make the government side with him against big business.”

You really think the government is on the side of the small businessman? This is insane. You know how the state can help the small businessman? How about not stealing half his income? Abolish the FDA. Abolish antitrust and minimum wage law. End the stupid drug war. Stop attacking other countries. To count on the criminal state which harms individuals in innumerable ways to “be on his side” is sheer lunacy.

Noise:
“As for Stephan – his views are clearly immersed in a politcal bent that obscures anything but his own view from being understood , much less “right”. His burden of proof is NOT as he states – it is up to him as he wants to change how the Law actually is. Sorry Stephan, the burden is on you.”

You seem to believe the current law is presumptively valid, since you think the burden is on anyone who wants to change it. There is no reason to presume current positve law to be valid–it is just a statute enacted by a bunch of politicians. Why in the world would you presume it to be valid? Did Abolitionists have to prove slavery was wrong to want to change the law allowing slavery?

Thanks for keeping a somewhat open mind about it. Please also note that my deontological argument precludes changing my mind unless you can successfully convince me about the injustice of my axioms. That said, I think the US is the best place to try the experiment, perhaps one technological or scientific sector that is already well funded through public funding. In fact, it’s the only way since it is the leading “innovator” according to your standards. The problem of proof in historical events are simply that: we can only see one thing following or proceeding another, but unlike physics, we cannot prove causation, we can only suggest it through correlation.

And no, I’m certainly not a socialist. Clearly, since I don’t think governments should be in the business of providing monopolies to anyone, I oppose statism. I think science ought to be funded through voluntary public pools of money as well. All systems of government involving privilege will tend toward injustice, so I oppose patents and other legal artifacts that skew the free market.

best,
David

You waste your time. David Koepsell isn’t buying any rational arguments because he would lose any rational discussion. Thus he must engage in a false reductio ad absurdum – a tautological thrust to equate his failed view into an unassailable one. “It’s religion now – and thus I cannot be wrong”.

Sorry, David, you are still wrong.

Gene’s point (if I may be so bold to venture), is that it is useless to try to reason with someone who believes a point is religious and beyond reason. David, you have proven him correct with your statements here.

You then have the audacity to post under the guise of science – More meaningless pontification. Lovely how such an impossible (but modest??) task is the only way you set to prove or disprove something. It appears that your level of understanding of science approaches your level of patent law. No wonder you want to phrase everything as a matter of religion.

As for Stephan – his views are clearly immersed in a politcal bent that obscures anything but his own view from being understood , much less “right”. His burden of proof is NOT as he states – it is up to him as he wants to change how the Law actually is. Sorry Stephan, the burden is on you.

The fact that Stephan usually has big corporations as clients may color his thinking. Big corporations have less need of patents than little guys, because they have financial, market place, and staffing advantages that the little guys don’t have and can out-compete the little guys in a patent-free world. Patents are the thing the little guy has that can make the government side with him against big business.

Stephan says that his clients would invent anyway in a non-patent regime because some would use trade secrets or other mechanisms. What other mechanisms come to mind? John D. Rockefeller was in a commodity business (which is what would be much more common in a patent free world) and his way of staying comptetitive was to send out goons to attack competitors.

In a non-patent world the other kinds of barriers to entry to a market become more valuable, such as having a bigger bank account than an innovator, a brand name that attracts a customer following, and an established network of users. Each of these tends to aid the success of incumbents against startups, allowing the incumbents to be able to rely on a monopoly protecting them from competition — just the sort of complacency that Stephan accuses of patent holders.

I am not sure what you mean by the last clause–socialism makes sense? is that a typo?

In any event, I agree with you: free markets good, monopolies bad. It is mystifying then why you would favor socialism and monopolies. A free market means an economy in which private property rights are respected. Period. A patent is a grant by the state that gives license to its holder to use the state’s courts and police to force competitors not to use their own property in certain ways. A patent manifestly undermines and violates property rights. It is contrary to the free market. It is socialistic.

Can you explain what you mean by “problems of proof in historical events”?

Not to be too cute, but I am all for the experiment you propose. I recommend it be tried first in a European country though. It seems there are a lot of candidate countries who would openly welcome the abolition of a patent system. I think they should go first, put their chips on the table, money where their mouth is, etc. etc. If it goes well then I could be persuaded. I am not unreasonable. We just have so much to lose not to get this right. The US is the dominant market in the world, and the most innovative country on the planet. Even if we are not industry leaders in certain areas, we are in the top 5, and being in the top 5 across all industries, plus being clearly No. 1 in some, perhaps many, indicates that we are doing something right and others are chasing us.

I agree this is ultimately a religious debate on many levels. I would also agree that free markets are the way to proceed, monopolies are evil and even socialism makes sense (although I don’t think you are socialist and am not saying that you are). All kinds of things make sense on paper, sound great and just don’t play out in life for many reasons. If we could get innovation on the same level there would be no justification for a patent system, but history has shown that no patent system or weak patent system means no innovation and no investment.

I would really love for someone to explain where the hundreds of billions or trillions of dollars in research and development will come from when there is no reasonable expectation to obtain monopoly rents. Innovation costs money, even simple inventions are enormously expensive and unless and until there is any kind of rational, reasoned argument that suggests it is likely that those with money, who are greedy by nature, will part with money on an altruistic base for the betterment of society and without expecting a return on investment. This just goes against human nature, or so it seems to me.

Maybe we could test your theory with a Big Brother or Survivor like experiment, where we throw some folks on an island, maybe Gilligan’s Island. I am only half tongue in cheek here. I suspect it would wind up more like the Island of Dr. Moreau or The Lord of the Flies, rather than the Garden of Eden.

-Gene