Why Libertarians Should Support a Strong Patent System

By Bob Zeidman & Eashan Gupta
January 5, 2016

libertarian-335America is without question the most innovative country in the world. This has been the case since its founding over 200 years ago. One of the great innovations of America’s Founding Fathers is the U.S. patent system. This has encouraged innovation for all of these years. However, some argue that the patent system is outdated and no longer encourages innovation. In particular, many libertarians believe that patents are government approved monopolies that discourage innovation. In this paper we examine the U.S. patent system, explain how it encourages innovation, and why libertarians in particular should support this system that operates according to libertarian values and resist current efforts at “reform” that introduce government regulation and limits competition.

What Are Patents?

To understand the U.S. patent system, we first need to understand what a patent is. Patents are simply property rights for inventors that are issued by the United States Patent and Trademark Office. The language of the statute states that any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. Patents do not protect ideas by themselves, but the implementation of ideas. For example, one cannot patent the idea of voice transmission over wires. But one could patent a method for voice transmission over wires comprising receiving sound vibrations and converting them to modulations of an electrical current by means of a membrane attached to a carrier of the electrical current in such a way that when the membrane vibrates in response to sound vibrations, the membrane causes a modification to the electrical current during a part of each vibration, etc. In other words, one cannot patent the idea of a telephone but can patent a specific implementation of a telephone.

A patent grants to its holder the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States. Therefore, patents prohibit others from “making, using, offering for sale, or selling” the invention without permission from the patent holder. Thus, anyone who wants to use the invention in this manner needs a license from the patent holder. Generally, patents are enforceable for twenty years after the application for the patent is filed. Patents issued in the United States are only enforceable in the United States, U.S. territories, and U.S. possessions.


Figure 1: Stradivarius violin in the royal palace in madrid. Licensed under CC 3.0.

Figure 1: Stradivarius violin in the royal palace in madrid. Licensed under CC 3.0.

Patents offer protection for inventors from competitors. Without patents, inventors have no incentive to disclose how they created their inventions. In the past, before patent systems were put in place, inventors kept their technologies to themselves and when they died, their technologies were lost. Some technologies in the past were lost forever. For example, during the 17th century, Antonio Stradivari and his sons knew the secret to crafting violins and other stringed instruments that produced unparalleled sound quality. A picture of one such violin is shown in Figure 1. There are only about 600 of these instruments left in the world, and the word “Stradivarius” has now come to mean a violin with great sound quality. The secret to creating these instruments died with the Stradivari family. Even today, people argue about what made these instruments so unique and their music so beautiful.

Figure 2. Antikythera Mechanism. Licensed under CC 2.0.

Figure 2. Antikythera Mechanism. Licensed under CC 2.0.

Another invention that was lost is the Antikythera Mechanism, shown in Figure 2, which was found by divers off the west coast of Greece. This device had many parts, and may have been used by the people of Ancient Greece during the first and second centuries B.C. to track the movement of the planets and the sun. These two great inventions and the technologies behind them could have been saved if there were patents, which would have provided a record for the implementation of these inventions, and would have allowed others to produce the invention after the patent term had expired.

Patents encourage innovation not discourage it. Patents are a way for the government to give protection for a limited time to inventors while encouraging them to disclose their knowledge. In this way, others can learn the new technologies and build upon them, improve them, or invent better ways of doing the same thing.

A Brief History of the U.S. Patent System

In medieval times, the grant of exclusive rights by the monarch was an easy way for him or her to raise money without needing to tax the people. These monopolies had serious effects on the economies of the European countries. In 15th century Venice, monopolies were deliberately granted to encourage innovation. During this time, Venice fought a war with the Turks, which led to Venice losing most of its trading empire in the Mediterranean. This resulted in Venice having to focus more on manufacturing rather than trade. To protect that manufacturing, Venice passed the first known laws to protect inventors involved in manufacturing.

Towards the end of Queen Elizabeth I’s rule in the 16th century, English courts granted monopolies to businesses that had introduced a new industry to the country. In 1624, the English Parliament passed the Statute of Monopolies. This limited the power of the monarch in granting monopolies. Under this statute, the monarch could only grant monopolies for fourteen years.

The legal basis for the U.S. patent law is found in the Article I, Section 8 of the United States Constitution: “The Congress shall have Power To… promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…” By including this clause in the Constitution, the Founding Fathers intended to protect individuals from the power of large entities. Also, the Founding Fathers considered patents to be so important that they passed the Patent Act of 1790 even before passing the Bill of Rights. Thomas Jefferson had a changing view of patents. In 1787, he was opposed to any type of monopoly including patents, but by 1789, his position had changed. As Secretary of State, Jefferson became the first acting head of the U.S. patent office. With regard to this patent law, Jefferson observed that it had “given a spring to invention beyond his conception.” Since 1790, the United States has greatly benefited from its patent system, which resulted in the United States becoming the most innovative country in the world.

What is Libertarianism?

Libertarianism is the belief that all people have the right to live their lives in any way, as long as they respect the rights of other people. Libertarians value life, liberty, and property as inherent rights. Libertarians believe in advancing the rights of people and limiting the size of the government. Many people say that the Founding Fathers of the United States were libertarians in practice because the U.S. Constitution favors limited government and protection of individual rights.

David Boaz, executive vice president of the Cato Institute, expresses this idea very precisely in his book “Libertarianism: a Primer”:

Libertarianism is the view that each person has the right to live his life in any way he chooses so long as he respects the equal rights of others… Libertarians defend each person’s right to life, liberty, and property—rights that people possess naturally, before governments are created. In the libertarian view, all human relationships should be voluntary; the only actions that should be forbidden by law are those that involve the initiation of force against those who have not themselves used force—actions like murder, rape, robbery, kidnapping, and fraud.

Many notable libertarians, such as Ayn Rand and Milton Friedman had a similar view of the world. When one first hears the word “libertarianism,” one may think of the word “liberty,” which is defined in the Merriam-Webster Dictionary as “the state or condition of people who are able to act and speak freely” and “the power to do or choose what you want to.”

Owning property is an essential element of liberty. Protecting property and property rights is a major concern of libertarianism and one of the few functions of government that nearly all libertarians agree is necessary. The book “The Virtue of Selfishness,” a collection of essays and papers by Ayn Rand and Nathaniel Branden. Rand, founder of Objectivism, a branch of libertarianism, confirms this binding between liberty and property ownership:

There is no such dichotomy as “human rights” versus “property rights.” No human rights can exist without property rights. Since material goods are produced by the mind and effort of individual men, and are needed to sustain their lives, if the producer does not own the result of his effort, he does not own his life. To deny property rights means to turn men into property owned by the state. Whoever claims the “right” to “redistribute” the wealth produced by others is claiming the “right” to treat human beings as chattel.

Is Intellectual Property Property?

The issue intellectual property has divided libertarians as to whether there can really be ownership in the result of result of human creativity, and continues to do so today. Some libertarians believe that inventors deserve a claim to their hard work, while others argue that patents are government-enforced monopolies and that the current United States patent system needs to be reformed. What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values. These laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.

Ayn Rand strongly supported patents. In her book “Capitalism: The Unknown Ideal,” she states:

An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence.

Many libertarians believe that intellectual property, being intangible, is not real property. A formal libertarian definition of property is difficult to formulate, but we would say that property is that which can be produced or contribute to production. Intellectual property falls clearly within these constraints. Yet some libertarians complain that intellectual is not tangible and is defined by government regulation—the patent laws—such that it would not exist without government definition. Let us look at this argument closer. Land is unquestionably property in the minds of libertarians. Yet the land upon which a house is built was not created by the property owner. It was created by nature or God, depending on your inclination, but no one would claim it to be created by the owner, whereas intellectual property is unquestionably created by the inventor. And how far do property lines extend? Property lines are determined by local governments. One can argue that property lines are negotiated by owners and enforced by governments, but when we moved into our homes, there were no negotiations with surrounding property owners. And how far above ground and below ground do property rights extend? These limitations are definitely not negotiated with other property owners but are determined by laws enforced by governments. Patents also have limitations in terms of scope and time that are determined by government laws. One can see that limitations on patents are similar to those on physical property and in some respects are more closely connected to production. For these reasons, libertarians should recognize patents as they do other forms of property.

As a secondary but important example, libertarians are generally concerned about government spying on private conversations. When the government captures a phone conversation, it is not physically taking property. It is simply copying intangible data that exists as a form of transient electrical signals. Copying does not involve removing the original—the phone conversation is not destroyed when it is copied. Yet libertarians recognize that this copying of intangible data is a kind of theft of property. Libertarians should thus be wary of making the argument that intangible patents cannot be property or they may lose their contrary argument that private conversations are personal property to be protected.

Non-Practicing Entities, Patent Trolls, and Free Markets

Non-practicing entities (NPEs) are organizations that buy intellectual property and license the rights to others. Most commonly they deal in patents. Typically these NPEs purchase patents from companies in need of a capital influx, companies that are moving from one area of technology or one type of product to another, companies that are closing down and need to monetize their assets for distribution to their shareholders, and individual inventors who do not have the money and experience to license or litigate large companies that are infringing their IP.

The term “patent troll” was coined by attorney Peter Detkin to describe bad actors who abuse the patent system or use loopholes in the law in ways that were unintended and that hurt patent holders and impede innovation. Ironically, Peter is now a founder of Intellectual Ventures, the largest NPE that is often labeled a “patent troll” by its critics. Let us examine this term.

First, the term patent troll is now used derogatorily to describe any company dealing in patents that the name caller does not like. This was evidenced at a conference last year entitled “Patent Trolls and Patent Reform” at the Stanford University Law School. The term “patent troll” not only included NPEs but also companies that were forced out of the market by larger competitors and who were trying to recoup their R&D expenses as represented by their patents. The term was also used for companies that sent letters demanding hundreds of dollars in license fees to small mom-and-pop stores that used, for example, allegedly infringing fax machines and scanners. The term was even applied to universities attempting to license the results of their research to corporations. Whether or not one likes these entities and their business models, lumping them all together is simply a means for tarnishing all of them for the practices of some of them.

For our discussion, we will use the neutral term NPE to describe those companies that buy and sell patents and patent rights. These companies act similarly to a grocery store, which could otherwise be labeled “grocery trolls” because, just as the argument against NPEs goes, such grocery trolls do not produce fruits and vegetables, they simply purchase them from those who do and then sell them to consumers. This model which is understood and encouraged by libertarians and other supporters of free markets, provides a great service by connecting distant producers and consumers and achieving economies of scale. No free market libertarian would think that such “grocery trolls” were exploiting a system, reducing consumption, hurting framers, or otherwise undeserving of the service fees that they charge. Similarly, NPEs should be praised by free market libertarians for providing a vital market that allows easier exchange of property and connecting producers and consumers who otherwise could not connect.

The America Invents Act

On September 16, 2011, Congress passed and President Obama signed into law the America Invents Act (“AIA”), the first major patent reform legislation in over 60 years. One justification for the change was to restrict the “abuse of patent trolls,” a concept that should have sent chills through each and every libertarian. When government attempts to regulate the property rights of an individual or business because of its particular business model, free markets are destroyed and government concepts of “fairness” override actual fairness, or what we call freedom.

Another justification for the new law was “harmonization with Europe and the rest of the world.” As libertarians know, Europe has socialist tendencies that include bringing monopoly charges against U.S. businesses while maintaining their own government-supported monopolies. The EU has recently brought antitrust cases against US firms Google, Facebook, Amazon, 21st Century Fox, Disney, NBCUniversal, Paramount Pictures, Sony, Fox, Warner Bros, and Qualcomm. At the same time, European governments subsidize businesses such as Airbus.

European governments significantly regulate European businesses and have labor laws tilted clearly and steeply in favor of employees and against businesses. Innovation in Europe and the rest of the world has paled in comparison to the United States since at least World War II if not since this country’s founding. The idea of making U.S. law similar to European law should have been a serious red flag for libertarians and other friends of free markets.

In particular, one of the most serious changes was to make U.S. patent law depend on the concept of first-to-file rather than first-to-invent that had been the original law and the original intent of our Founding Fathers. Originally, U.S. patent law was purposely intended to reward the first person to figure out a way to implement a novel, useful invention even if that person did not have the resources to produce the invention. This would give power to the creative genius and allow him or her to raise funds or license the patent to a manufacturer. European patent law, on the other hand, required an inventor to produce the actual invention, ensuring that inventions stayed with the wealthy class. Zorina Khan, Associate Professor of Economics at Bowdoin College, writes in her book “The Democratization of Invention” about U.S. patent laws since the founding of the United States, in contrast to those of Britain:

Rather than an elite that possessed rare technical skills or commanded large stocks of resources, the rise in patenting was associated with a democratic broadening of the ranks of patentees to include individuals, occupations, and geographic districts with little previous experience in invention. One finds among the roster of patentees not only engineers and machinists, but also candidates for the Greenback Party, schoolteachers, poets, humble factory workers, housewives, farmhands, teenagers, and even economists.

Furthermore she attributes a kind of opportunity available to women in 19th century America through invention and patents that was not available through laws or social norms:

[R]ecords indicate that nineteenth century women were active participants in the market for technology… Patents by women comprised only a small fraction of total patents, but the overall patterns of patenting and the pursuit of profit opportunities by women inventors were similar to those of male inventors… Women in frontier regions were especially inventive, and devised ingenious mechanisms to ease the burden of an arduous existence far from the conveniences of cities and extended social networks.

The AIA changed the longstanding first-to-invent requirement to a first-to-file, supposedly to reduce litigation costs because it is easy to verify which inventor filed paperwork first with the patent office. It is important to remember, however, that in America litigation occurs not because we have a lot of greedy people and unscrupulous lawyers, as is often decried, but because litigation is the great equalizer. The laws apply equally to all, and litigation is a sometimes long and costly process that allows justice to be served, within the confines of human fallibility, without regard to the litigants’ social status, wealth, employment, race, color, or religion. However, now rather than rewarding the initial producers of intellectual property, this major change in U.S. patent law rewards the first entity to fill out paperwork and pay the government’s fees. This means that once again the power of the patent is given to the large corporations. This provision of the AIA in particular should alarm libertarians in that it has undone over 200 years of creative invention and equality of opportunity in favor of large corporations, wealthy individuals, and government bureaucracy.


Libertarians believe in property rights and government protection of those rights as one of the few necessary requirements of government. Ownership of property and free markets leads to competitive production and trade of goods, which in turn leads to prosperity for all of society. Intellectual property is property like other forms of property, and so government must protect IP as it protects other forms of property because it too leads to competition and trade and prosperity. Libertarians should encourage a strong patent system and object to any “reforms” that limit intellectual property ownership or introduce more government regulation than is required.


We thank Ray Strong, IT Researcher at IBM and leader of the Conservative Forum Constitution Discussion Group, for his deep read of this article and his numerous comments that forced us to reexamine our arguments and clarify several important points. We also thank to Bob Sachs, Partner at Fenwick & West LLP and commentator on patent eligibility and related patent issues on Bilski Blog, for his feedback.


  1. Andrews, Evan. Top 10 Lost Technologies We Could Really Use Today, http://www.toptenz.net/top-10-lost-technologies.php, August 1, 2014.
  2. Boaz, Libertarianism: A Primer, Free Press, copyright 1997, https://www.cambridgelibertarians.org.uk/media/uploads/2014/06/libertarianism_a_primer_boaz.pdf.
  3. D’Amato, David, Libertarian Views of Intellectual Property: Rothbard, Tucker, Rand, http://www.libertarianism.org/columns/libertarian-views-intellectual-property-rothbard-tucker-spooner-rand, May 28, 2014.
  4. Diamond, Arthur M. Jr. Seeking the Patent Truth, The Independent Review, http://cba2.unomaha.edu/faculty/adiamond/WEB/DiamondPDFs/SeekingPatentTruth2014-06-10.pdf, Winter 2015.
  5. Dobyns, Kenneth W. The Patent Office Pony: A History of the Early Patent Office, http://www.myoutbox.net/popstart.htm, copyright 1994.
  6. Dorn, James A. China’s Legacy: The Thoughts of Lao Tzu, South China Morning Post, September 4, 2007, http://www.cato.org/publications/commentary/chinas-legacy-thoughts-lao-tzu.
  7. Ehrlich, Mark. Do Patents Promote Innovation? The Market is the Final Arbiter, http://www.ipwatchdog.com/2013/04/04/do-patents-promote-innovation-the-market-is-the-final-arbiter/id=38642, April 4, 2013.
  8. Freidman, David. The Machinery of Freedom, http://daviddfriedman.com/The_Machinery_of_Freedom_.pdf, retrieved August 29, 2015.
  9. Heilprin, John. WTO: Subsidies for Boeing far less than for Airbus, USA Today, March 12, 2012, http://usatoday30.usatoday.com/money/industries/manufacturing/story/2012-03-12/boeing-illegal-subsidies-wto-airbus/53499542/1.
  10. Goetz, Martin. In Defense of Software Patents, PatentlyO, http://patentlyo.com/patent/2009/11/in-defense-of-software-patents-1.html, November 30, 2009
  11. Heckel, Paul. Debunking the Software Patent Myths, Communications of the ACM, June, 1992.
  12. Kanter, James and Scott, Mark. U. Opens Antitrust Case Against Major U.S. Studios and Sky UK, The New York Times, July 23, 2015, http://www.nytimes.com/2015/07/24/business/international/eu-antitrust-movie-studios-sky-uk.html.
  13. Kanter, James and Scott, Mark. Europe Challenges Google, Seeing Violations of Its Antitrust Law, The New York Times, April 15, 2015, http://www.nytimes.com/2015/04/16/business/international/european-union-google-antitrust-case.html.
  14. Khan, B. Zorina, The Democratization of Invention, Cambridge University Press, 2012.
  15. Ladas & Parry LLP, A Brief History of the Patent Law of the United States, http://ladas.com/a-brief-history-of-the-patent-law-of-the-united-states-2, retrieved August 29, 2015.
  16. Library of Congress: Thomas Jefferson http://www.loc.gov/teachers/classroommaterials/connections/thomas-jefferson/history4.html.
  17. Long, Roderick T. The Libertarian Case Against Intellectual Property Rights, Formulations, http://freenation.org/a/f31l1.html, Autumn 1995.
  18. Mazzeo, Michael J.; Hillel, Jonathan; and Zyontz, Samantha. Are Patent Infringement Awards Excessive? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765891, June 17, 2011.
  19. Merriam-Webster Dictionary: liberty, http://www.merriam-webster.com/dictionary/liberty, retrieved August 29, 2015.
  20. Rand, Ayn. Capitalism: The Unknown Ideal, Signet, July 15, 1986
  21. Rand, Ayn and Branden, Nathaniel. The Virtue of Selfishness, Signet, November 1, 1964.
  22. Reisinger, Don. EU opens two antitrust investigations into Qualcomm, c/net, July 16, 2015, http://www.cnet.com/news/eu-opens-two-antitrust-investigations-into-qualcomm.
  23. Risch, Michael, Patent Troll Myths, Seton Hall Law Review, Vol. 42, p. 457, 2012, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442.
  24. Schechner, Sam. EU Antitrust Chief Throws the Book at Amazon, Wall Street Journal, June 15, 2015, http://blogs.wsj.com/digits/2015/06/15/eu-antitrust-chief-throws-the-book-at-amazon.
  25. Thomas Jefferson Foundation, Inc. Patents, https://www.monticello.org/site/research-and-collections/patents, retrieved August 29, 2015.
  26. United States Patent Office. General Information Concerning Patents, http://www.uspto.gov/patents-getting-started/general-information-concerning-patents, retrieved August 29, 2015.
  27. Zeidman, Bob, Fortune Magazine’s Unusual Position on Non-Practicing Entities, IPWatchdog, http://www.ipwatchdog.com/2014/04/10/fortune-magazines-unusual-position-on-non-practicing-entities/id=48925, April 10, 2014.
  28. Zeidman, Bob, Setting the Record Straight: Patent Trolls vs. Progress, IPWatchdog, http://www.ipwatchdog.com/2012/05/01/setting-the-record-straight-patent-trolls-vs-progress/id=24491, May 1, 2015.
  29. Zeidman, Bob, The Software IP Detective’s Handbook, Prentice-Hall, 2011.
  30. Zwolinski, Matt. Liberty and Property, Libertarianism.org, http://www.libertarianism.org/blog/liberty-property, February 4, 2013.

The Author

Bob Zeidman

Bob Zeidman is one of the leading experts on intellectual property, particularly as it relates to software. He is the president and founder of Zeidman Consulting, a premier contract research and development firm in Silicon Valley that focuses on engineering consulting to law firms about intellectual property disputes. Clients have included Apple Computer, Cisco Systems, Facebook, Intel, Symantec, Texas Instruments, and Zynga. Bob is also the president and founder of Software Analysis and Forensic Engineering Corporation, the leading provider of software intellectual property analysis tools for use in forensic examinations. Bob is considered a pioneer in the fields of analyzing and synthesizing software source code. He has worked on and testified in over 150 cases involving billions of dollars in disputed IP.

Bob Zeidman

Eashan Gupta is a junior at Basis Independent High School in San Jose, California. He is part of his school's Mock Trial team as an attorney and a witness, where he was recognized by Santa Clara County for outstanding performance. Eashan was the news editor for his school newspaper. In his free time, Eashan competes in fencing tournaments around the country, along with being a fencing referee. During the summer of 2015, he worked as an intern at the Federal Bankruptcy Court in San Jose.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 78 Comments comments.

  1. J. Mills January 5, 2016 1:24 pm

    “Libertarianism is the belief that all people have the right to live their lives in any way, as long as they respect the rights of other people.” That’s a common, but not very useful description of principle because it doesn’t answer the question “what rights do other people have?”

    Pertinent to patents and copyrights, if we recognize such rights, then, naturally, others’ patent and copyrights should not be infringed. But, if we don’t recognize such rights, then one can freely infringe without disrespecting the rights of other people.

    A more useful way to formulate the libertarian principle is this: “People should be free to run their lives as they see fit as long as they aren’t hitting people or stealing things.” That is somewhat more useful, but then it requires discussion about what exactly is “hitting people” or “stealing things.”

    Is abortion “hitting” others, or is a fetus not another human? If I stand at the entrance of my diner in Alabama with a baseball bat and advise black people they aren’t welcome, is that equivalent to “hitting others”? These are complex questions.

    Pertinent to patents and copyright, is the expropriation of ideas “stealing things”? It is stealing if inventors and artists have patent rights and copyrights; it isn’t stealing if they don’t. So, that brings us back to the core question raised by this writing: Should patents and copyrights be given by the state and enforced by the state as theft prevention?

    In puzzling that through, it seems important to consider the basics of the entire notion of theft, and specifically whether what’s “bad” about theft has to do with what I’d call “wrongful acquisition” or “wrongful deprivation.”

    With ordinary theft, that distinction isn’t particularly important or apparent. If I take your car, I acquire it; you are deprived of it. I gain something. You lose something. It happens all together. But “theft of ideas” is different. There is an acquisition without a commensurate deprivation.

    Suppose you invent a clever folding picnic table and set it up in your backyard. Now, if one day, I sneak into your yard and take the table, then I have acquired it and you are deprived of it. But, suppose I look over the fence, see what you’ve built, and replicate it in my yard. In that event, I have acquired your device, but you aren’t deprived of it. And so, there’s an important difference in the respective acts I’ve undertaken.

    Insofar as the concept of theft seems “wrongful” or “immoral,” it should be based on a wrongful deprivation – seems to me. There really shouldn’t be any law against “wrongful acquisition” because acquisition is the essence of growth and prosperity. Re-arranging things to make more and more valuable stuff is how individuals and society generally get ahead and become wealthy. Anything that limits that sort of behavior should, at the very least, be highly suspect.

    Decades ago, Miller brewing invested millions and millions in a rather ridiculous idea: low-calorie beer. From the minds of their genius (or maybe drunk) employees, “Lite” beer arrived. Most other breweries scoffed at the silliness.

    In short order, however, after millions spent marketing and promoting Lite Beer, Miller found it to be a fantastic seller. And, as soon as that was apparent, Bud Light started getting delivered. Budweiser could not, of course, infringe the trademark “Lite” or copy the logos of Miller, but they never wanted that, recognizing that the value was in the concept of low-calorie beer, not the name (although the name was good marketing).

    In America, that’s called “competition” and it is a central driver of wealth creation. In fact, people would find it strange indeed if the state were to come in and somehow restrict competition in low-calorie beers by awarding some protectable right for Miller Brewing to produce low-calorie beer. Any effort to do so would be a huge blow to consumers generally and to the wealth-creating propensities of the free market, because whatever Budweiser was doing, it wasn’t depriving Miller of its ability to produce and market low-calorie beer. Budweiser was acquiring something without really depriving Miller of anything.

    Which brings us back to patents, copyrights and the whole notion of “theft” and the question about whether theft is all about “wrongful acquisition” or “wrongful deprivation.” It’s a question that should be critical in analyzing the proper role of the state in defending “property rights.”

    I think defenders of the concepts of patents and copyrights need to demonstrate why infringement is immoral and tantamount to theft of other’s things. But, because all such “taking” amounts to an acquisition without any deprivation, I think that’s a hard row to hoe. Mostly, what it always comes down to is that an infringement “steals” the market share of the original inventor . . . which brings us back to competition and Miller Lite and whether Budweiser should be allowed to compete after Miller invested so much in creating and building the market for low-calorie beer

  2. Alec Buscemi January 5, 2016 2:09 pm

    Ayn Rand is NOT a libertarian. Libertarian are merely borrowing some of her conclusions without looking at the root of her thinking, a process based on honesty, meaning which keeps track of the entire context of a concept. When the author of this article states that many libertarians have difficulty with defining property, it is precisely because they drop context that they cannot define property. At that point they become concrete-bound skeptics, and will only consider what their senses physically identify (i.e.: land, buildings, furniture) property, without referring to the largest common factor to all these physical things: the mind.

  3. Gene Quinn January 5, 2016 2:20 pm

    J Mills-

    You say: “But “theft of ideas” is different. There is an acquisition without a commensurate deprivation.”

    That statement fundamentally shows that you just don’t understand what you are pontificating about. If artists and inventors are not able to obtain payment for their creations what do you think is going to happen? Do you actually think they will continue to create so people like you can take what they create? You can’t be that ridiculously naive and uninformed, can you?

    People like you are all the same. You want everything to be free because you don’t have the ability to create anything yourself. But I bet you take prescription drugs, and I bet you have a variety of gadgets at your disposal that never would have existed but for the incentive for the innovator to be able to make money knowing that others couldn’t just rip them off.

    In short, people like you are enormous hypocrites.


  4. step back January 5, 2016 4:08 pm

    Gene @2,

    Excellent counter argument for the anti-patent segment of the libertarians: By copying without compensation you are harming the other fellow because you diminish the economic value of his/her work.

    Libertarianism is not my cup of tea. But if you want to read more from a true libertarian, check out Dale Halling’s blog at:


  5. staff January 5, 2016 5:53 pm

    ‘the Founding Fathers intended…’

    The intent of the founders in recognizing the rights of inventors in the Constitution was succinctly put by James Madison…

    As then future president James Madison wrote in Federalist No. 43 regarding constitutional rights of inventors and that portion of the Constitution as proposed, “The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals.”

    It is a question of rights. It’s that simple. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. If we cannot own the product of our minds or labors, what can we be said to truly own? Life and liberty are fundamentally tied to and in fact based on property rights. Our very lives are inseparably tied to our property.

    For more information please visit us at https://aminventorsforjustice.wordpress.com/
    or, contact us at tifj@mail.comour constitution.

  6. J. Mills January 6, 2016 12:25 am

    Gene –

    I’m actually a lawyer and hence spend my time selling my intellectual production and imagination,. Really, all I produce is intellectual property – much of which, by the way, I just give away freely. But this hopefully isn’t resolved by just insulting the opposition and making ad hominem attacks.

    You say “If artists and inventors are not able to obtain payment for their
    creations what do you think is going to happen?” An odd irony about that is I’m writing this response on a computer running Ubuntu Linux – a totally free computer operating system that anyone can acquire without paying a dime. The existence of Ubuntu Linux demonstrates conclusively how imaginative, traditional “intellectual property” can get created without the inventors selling it commercially by charging each user – the Microsoft Windows business model.

    Indeed, the world is full of examples of things that get created without a traditional “pay-to-play” method of funding. St. Jude’s Children’s Hospital provides a huge wealth of services without any of the users having to pay.

    As long as consumers are willing to pay more than the minimum required by inventors to invent, invention will occur. Patents and copyrights empower the inventors to discover the very most consumers will pay, and in the absence of those laws, consumers tend to discover the minimum that inventors require to produce. So, these laws don’t fundamentally alter what is produced. The laws do alter how wealthy are the inventors. In that sense, like all monopoly privileges conferred by the state, those who benefit are well, financially benefited, but there’s little showing that monopolies are either necessary, or even relevant, to causing production.

    One thing, however, is certainly true, and that’s that this is all about commercial wealth, not really about production of ideas. In that sense, of course, the challenge remains about how to distinguish the Miller Lite example of regular competition. Budweiser basically – in your words – “ripped them off.” And yet, that didn’t prevent Miller Brewing from inventing Lite Beer.

    And – “Staff” –

    No one is taking about whether a person owns “the product of our minds or labors.” No question that if you invent a clever folding picnic table, you own the table and it would be immoral for another to come steal it and take it away. The question is whether the inventor should, or should not, be able to prevent others who see the table from constructing a similar one in their own back yard.

  7. Paul Morinville January 6, 2016 1:01 am

    J. Mills, You argue that people will continue to invent regardless of whether or not there is protection for disclosing the invention. They do continue to invent, but the don’t disclose.

    Before the patent system, the dark ages were full of people who invented but didn’t disclose. If you wanted the best iron, you had to travel to a monastery in Central Europe. The monks kept the secret of making that iron secret for over a hundred years and nobody could duplicate it. When someone finally figured it out, iron shops went up all over Europe.

    The first metal lathe was invented and hidden in the basement of the inventor. He made pick proof locks and was the only person on the planet who could. He hired a guy to help and swore him to secrecy. For somewhere around 15 years, he worked for him on that metal lathe and still nobody knew how they did it. Finally that employee left and started his own shop. His new shop relied on the patent system rather than trade secrets. So they disclosed the inventions to the public and over the next five or ten years, almost all of the basic machine tools we know today were invented.

    The alternative to the patent system is trade secrets. Because trade secrets are, well, secret, nobody can build upon them so innovation grows stagnant. If we lived in an altruistic world where people were not motivated by improving their own lot, your theory might work. Just as socialism might work.

  8. Bob Zeidman January 6, 2016 2:50 am

    J Mills, what is your feeling about the NSA or foreign governments tapping into your phone conversations? The irony is that libertarians who are against the patent system are nearly all (if not all) horribly disturbed by phone tapping. But when the NSA listens in to your phone call, over wires owned by private companies and in some cases using government owned property, they are “acquiring but not depriving.” You’re not on a slippery slope but rather have fallen down the rabbit hole altogether. Unless you think that there’s no right to privacy.

  9. Edward Heller January 6, 2016 6:41 am

    There might be more that one reason that England, and then Germany and the United States became the technological and industrial powerhouses they were and are, but the presence of a strong and effective patent system was certainly one of them.

  10. step back January 6, 2016 9:13 am

    J. Mills @#6

    You might be a brethren of the bar but you misunderestimate what Congress did in order to fulfill the “promote” part of Article 1, section 8, clause 8.

    The point is not that invention should happen.
    The point is that its occurrence should be hastened (its progress be promoted).
    To that end, and especially in the AIA patent act of 2011, Congress set up a winner-takes-all race to the steps of the Patent Office.

    That is why they call it a “first to file” system.
    Got a great new idea?
    Run as fast as you can to your local patent attorney’s office.
    Then have him/her run your application papers fast as possible into the e-file website (assuming they s still got that there electro motive force thing going there).

    To the swift and arduous (not to the lame excuse, I want it all free ones) goes the race.


  11. Gene Quinn January 6, 2016 10:12 am

    J Mills-

    You write: “I’m actually a lawyer and hence spend my time selling my intellectual production and imagination,. Really, all I produce is intellectual property – much of which, by the way, I just give away freely.”

    So you sell your intellectual property, but you give it away freely? Interesting hair you seem to be splitting.

    Quite clearly you are NOT giving away your intellectual production and imagination for free, so excuse me for noticing that what you wrote is complete and utter nonsense. Your intellectual dishonesty may allow you to feel comfortable twisting words to hold hypocritical positions. Feel free to refer to that as an ad hominem attack if you like. Of course, it is not an ad hominem attack, but rather is perfectly descriptive of your position. Please look up the definition of ad hominem.

    You write: “the world is full of examples of things that get created without a traditional “pay-to-play” method of funding. St. Jude’s Children’s Hospital provides a huge wealth of services without any of the users having to pay.”

    Relying on charity will never maximize benefit to society.

    If intellectual property laws get in the way and are unnecessary then there should be rampant economic activity and innovation in places with no intellectual property rights. That, of course, is not the case. That reality rather conclusively proves you wrong.


  12. J. Mills January 6, 2016 10:41 am

    Step back –

    There are probably a number of reasons why the Constitution gives Congress power to award patents and copyrights. No doubt some of the promoters believed the arguments advanced in the writing that started this discussion. I think the discussion here re-examines all that. Whether patents and copyrights hasten innovation, or stifle it, is at least debatable. I offer the entire “open source” software community as an example of how fast, cutting edge, technological innovation can happen in the absence of government monopoly protection.

    The “PC” is based on open architecture. Anyone can build a computer on that hardware platform. Apple, on the contrary has proprietary, protected hardware architecture, and there’s no evidence that the PC model has lead to restricted development. I would say the evidence is to the contrary.

    Mr. Heller –

    There are many reasons England,, Germany and the US became technological and industrial powerhouses. What’s debatable is whether patent and copyright law assisted or retarded that process. We really can’t know that with a high degree of certainty.

    Bob Zeidman –

    You are correct that NSA acquires without depriving. That would, under my analysis, mean that they aren’t “stealing” your conversations. But, theft of conversation isn’t the issue with spying – it’s privacy. There’s lots of ways to invade privacy without stealing things, and it seems to me protecting a person’s privacy is separate from protecting their “possessions.”

    Paul Morinville –

    You are correct that before patents, the dark ages were full of people who invented but didn’t disclose. Of course, back then, books were laboriously copied by scriveners. It’s hard to say whether various lost artistic and scientific knowledge – as for example, the Stradivarious techniques mentioned in the opening article – would be similarly lost in today’s world where data transmission is easy and back up copies of notes and such are so easy to keep.

    No doubt today, even with patents and copyrights, lots is kept secret and therefore is subject to loss. It is probable that the availability of patents and copyrights does encourage disclosure. But, it’s beyond question that these laws stifle production at least over the short haul. I don’t know that its even very possible to compare the advantages and disadvantages.

    What I know for sure is that the “open source” community shows conclusively that copyrights and patents aren’t essential to innovation. There are lots of other examples of all kinds of things that are given away “free” – meaning that the funding mechanism isn’t of the sort used by Microsoft, or other businesses that rely on government enforced monopoly and requiring each user to pay a fee. The American Heart Association, for example, funds a tremendous amount of research and development. Some gets patented, lots doesn’t. But, there certainly is little conclusive proof that all – or even most – R&D would vanish if we closed down the patent office.

    What we know with near certainty is that inventors and artisans would likely earn less from their inventions and creations than they would under the current system. And what that means is that, despite all the high-falutin talk about “promoting and advancing the arts and sciences,” mostly this is about who gets very rich . . . and that’s typically what government-enforced monopoly privilege is all about.

  13. J. Mills January 6, 2016 11:04 am

    Paul Morinville –

    You say: “If we lived in an altruistic world where people were not motivated by improving their own lot, your theory might work. Just as socialism might work.”

    I don’t see R&D in a post-patent world as being based on altruism. Relying on that would be a pretty lame idea. I mean, of course, altruism would support a lot of R&D – that’s the American Cancer Society method.

    But, there are lots of commercial business models that don’t depend on 1) secure a patent, then 2) charge everyone for each product delivered. Android is an open-source operating system for phones. It’s not based on altruism. Broadcasts TV is “free” to users, but that really means it’s funded with other than user fees.

    Absent patents and copyrights the sell-each-copy-for a fee – what I’d call the “McDonald’s restaurant” funding model – would likely be largely replaced with the “Ronald McDonald House” funding model, or by some other funding model, but the free market is marvelously imaginative at finding ways to get things done.

    I’m pretty confident that smart people would find a way to invent Uber with or without patent and copyright laws.

  14. Anon January 6, 2016 11:18 am

    J. Mills,

    Please provide a single example of a modern advanced society that shares your negative views of NOT protecting intellectual property.

    You will not – because you cannot (and please spare me the correlation/causation nonsense).

    What you call “re-examine” is nothing more than the same old pursuit of that different agenda – a pursuit grounded in nothing but “want/opinion/philosophy/beliefs” divorced from the reality of history and this country’s other – and dutifully expressed beliefs.

  15. Anon January 6, 2016 11:22 am

    Further, blocking copying is NOT stifling innovation – quite the opposite in fact is the direct result of this type of blocking (hence the historical adage: necessity is the mother of invention).

  16. J. Mills January 6, 2016 11:23 am

    Gene –

    You tell me: “Quite clearly you are NOT giving away your intellectual production and imagination for free.”

    Well, let’s just say that you and I are giving away our intellectual production and imagination for free right here in these posts.

  17. Gene Quinn January 6, 2016 1:35 pm

    J. Mills-

    You may be giving your intellectual production away for free, but I’m not giving my thoughts away for free.

    It is really quite surprising I would have to explain something so basic to a professional, but there is no way that I could spend full time on IPWatchdog.com if I were not able to monetize the efforts. Extremely simple business concept. That you don’t understand something so basic suggests you fundamentally don’t understand economics.

    Truthfully, we both know that you do understand economics. For some reason you are just taking hypocritical positions and unwilling to admit your intellectual dishonesty.


  18. Edward Heller January 6, 2016 2:11 pm

    Gene, I agree with your sentiments about J Mills.

    The reason England, Germany and the US became technological and industrial powerhouses is because big money invested heavily in new inventions and they did so because of patent protection.

  19. Bob Zeidman January 6, 2016 3:18 pm

    J Mills, I appreciate your taking the time to expound on your arguments. I don’t disagree with all of them, though I disagree with the main one. But in any case I respect your ability to articulate them. I think these discussions (debates? disagreements?) are really helpful for everyone to fine tune their own thinking. I don’t want to stifle the debate, because I’ve been attacked on certain LinkedIn groups and Facebook groups for holding contrary opinions and don’t want to appear to be doing that here. I encourage your arguments, and I know that Gene, Paul, and others will continue to debate these points.

  20. step back January 6, 2016 3:22 pm

    J Mills @#12 writes:

    Whether patents and copyrights hasten innovation, or stifle it, is at least debatable. I offer the entire “open source” software community as an example of how fast, cutting edge, technological innovation can happen in the absence of government monopoly protection.

    There is no debate about “innovation” and I am not one to be suckered in by that deceptive wishy washy word.

    “Innovation” is not invention.
    “Innovation” is merely about the general populace buying into something even if the one claiming to be the “innovator” didn’t invent anything.

    As for open source software, I highly appreciate the services of those who donate their time and sweat for benefit of others without seeking compensation. Not everyone can afford to do that. Alas, some of us were born sans silver spoon in mouth.

  21. J. Mills January 6, 2016 7:14 pm

    I think the “open source” software community has some people just donating their time, but not everyone. Take Red Hat for example. They freely give away “Fedora,” but that doesn’t mean that they don’t make a profit. They have simply figured out that the bigger money is in going to a company with their Linux version, offering to give away the program for nothing, and then they step up to offer monthly maintenance services with the idea that “Hey, we wrote the programming; we can certainly do the install, maintenance and upgrading more competently than others.” That doesn’t mean they will get hired by every user, but they only need to get hired by some to be profitable. Plus, they offer other “flavors” with a variety of other features imbedded for a fee. So, they don’t need copyright to make a profit.

    What this shows is that the old Win-95 funding method where each user pays a fee for each copy of the software isn’t the ONLY way to fund software development.

    Those who have digital TV antennas (or who recall the old “rabbit ears”) know that there’s a whole raft of TV programming that’s all “free” to the user. This programing isn’t “free” to produce – indeed, it’s quite capital and labor intensive to produce. But, it’s funded by the process called “advertising,” which means that the end users don’t all have to pay a fee for their copy of the intellectual property.

    It’s really clear that most authors aren’t going to write a book without ever getting paid to do so. But, that doesn’t imply that the ONLY way to get books written is to 1) assert a copyright, and then 2) charge each reader a fee per copy at the point of sale. A publishing company with advance orders can simply put up all the money, then deliver the book, when finished, to those who’ve paid for it in advance. A more modern version of that is the well-known “crowd funding” system made popular on the Internet.

    Augmenting those alternative commercial funding is the entire field of philanthropy where people of means simply underwrite the distribution of product they find beneficial to the world. The Bill & Melinda Gates foundation is an example of this, as are many, many other similar well-known organizations.

    Again, back to Miller “Lite.” The arguments favoring copyright and patent would hold that it is impossible for Miller Brewing to have ever invested the enormous capital needed to launch the “Lite” beer business given the risks and the certainty that if it failed, Miller would bear the entire costs of failure; if it succeeded, Budweiser and every other major brewer would simply “rip off” the idea, encroach on Miller’s market share and impair Miller Brewing’s ability to recover profits. Thus, proponents of copyright and patent would argue that we need to provide Miller Brewing with some protection allowing it to “internalize” all the profits of its risky venture, else no one would undertake the significant financial risks of creating that product. And, yet, in practice – without any protection from the vagaries of the free-market, Miller did invest all the money and did launch “Lite” beer.

    That, and numerous other examples of innovation and invention that occur without any assurance of being able to “internalize” all the profits demonstrate at least that the theory underlying patent and copyright laws might be somewhat flawed.

    None of this, of course, creates an iron-clad case for dispensing with patents or copyrights. It was not really my point to do so, but to merely point out that there are significant differences between “intellectual property” and what we ordinarily think of as “property.” To the extent that some simply view patents and copyrights as akin to laws against “stealing,” I’m just trying to point out that it’s not quite so simple as asserting these laws are needed to prevent theft.

    And, if these laws are not needed to prevent theft – or at least what we might ordinarly think of as theft – then such laws might not be attractive to libertarians. That’s so even if one could show conclusively that this kind of crony capitalism leads to more stuff being created . . . a proposition never very well shown by the proponents of patent and copyright law.

  22. Edward Heller January 6, 2016 7:41 pm

    Eli Harari invented the NAND Flash Cell at a time when Flash was already a big business. Yet he drew investments and his company, SanDisk, grew into one of the largest corporations in the world because of his patents. I know this personally.

    Just one data point.


  23. J. Mills January 6, 2016 7:47 pm

    Oh, and Gene Quinn –

    I’m happy that you have found a way to “monetize” your writings on IPWatchdog. But, I submit that proves my point. Your ideas and writings are freely given to everyone who visits this site (as are mine).

    What that shows is that it is not necessary for you to assert a patent or copyright and then get paid a fee from each end user in order for you to enage in production.

    However it is happening, you are distributing your intellectual property without any real protection against others “ripping off” your material, and that isn’t stopping you from making a contribution to the conversation.

    I’ve never tried to argue that Miller Brewing should be made to give away its Lite beer for free. My point is that it doesn’t need some special protection against others “stealing” their invention in order to produce the product. Miller, of course, would be much more wealthy if it were able to exclude Bud Light from the market, and to appropriate to itself 100% of the low-cal beer market. My point here is that libertarians might rightly object to the state granting them such a monopoly.

  24. J. Mills January 6, 2016 8:13 pm

    Anon –

    You’ve asked: “Please provide a single example of a modern advanced society that shares your negative views of NOT protecting intellectual property.”

    The title of the writing that spawned this thread is: “Why Libertarians Should Support a Strong Patent System.” What I’ve been writing about is why libertarians might not support a strong patent system. That’s fundamentally different from whether all modern societies have patent systems (I concede they do).

    All modern advanced societies have laws against production and distribution of heroin. Yet, libertarians disapprove of such laws.

    Although I think the evidence is sketchy, let’s assume that patent laws do advance invention. That would not persuade libertarians we should have such laws because libertarian principles aren’t altered by what results. For example, there’s little doubt that eradicating laws against heroin use will result in more deaths from heroin overdose. Still, libertarians advocate the repeal of such laws.

    If the state collected up millions in tax dollars and spent that money on solar energy R&D, then it’s very likely that there would be more power from solar delivered. But, that result wouldn’t persuade a libertarian to endorse the idea – even a libertarian who believed “clean energy” was a good thing.

    Virtually all modern advanced societies practice crony capitalism and virtually every modern advanced state gives away public money to favored causes and virtually all modern advanced societies protect favored businesses with tarrifs, regulations and all kinds of restrictions designed to impede competition. Libertarians just don’t think that “everyone does it” is pertinent to the argument about whether such behavior on the part of the state is justified, moral, or proper.

  25. Gene Quinn January 6, 2016 9:38 pm

    J Mills-

    You say: “I’m happy that you have found a way to “monetize” your writings on IPWatchdog. But, I submit that proves my point. Your ideas and writings are freely given to everyone who visits this site (as are mine).”

    For someone who is allegedly an attorney you don’t seem to understand much about the law. Have you heard about copyright law? You do know that gives me the right to prevent others from copying what I write and disseminating it for their own personal gain, right? You do realize that I can stop that behavior and if I couldn’t stop that behavior there wouldn’t be any way to monetize my writings.

    Seriously, either you are just a terrible lawyer or not a very deep thinker.

  26. J. Mills January 6, 2016 11:00 pm

    Gene Quinn –

    “Seriously, either you are just a terrible lawyer or not a very deep thinker.”

    I’ve never understood why people post these kinds of comments or what they think it adds to the conversation in a productive way. I guess its a way of allowing you to feel superior without actually advancing a coherent argument.

    My point here is that you’ve posted your writings, and not charged me a dime. I got it free, as did anyone who stumbles on this posting. Moreover, I could include your entire post verbatim in a book I sell for money, all under the headline: “ineffective arguments supporting copyright,” and call it “fair use.”

    You have a copyright, probably enforceable in America, but the Internet is read all over the globe. Wholly aside from the practical, financial and logistical impediments to “stopping people” in remote corners of America who might decide to use your post, your thoughts and writings no doubt are available to people in places where your copyright just isn’t enforceable at all.

    Maybe that thinking makes me a terrible lawyer, but at least you aren’t paying for my advice.

    My point remains: You have found a way to “monetize” your posts that really makes it profitable for you to post, all without insisting on payment from each person who wants to read your comments. Similar sorts of alternative funding schemes likely would minimize or eliminate any problems that proponents of these laws think require the enactment of copyright and patent laws.

  27. Gene Quinn January 6, 2016 11:10 pm

    J Mills-

    You say: “My point here is that you’ve posted your writings, and not charged me a dime. I got it free, as did anyone who stumbles on this posting. Moreover, I could include your entire post verbatim in a book I sell for money, all under the headline: “ineffective arguments supporting copyright,” and call it “fair use.””

    First, you could copy and put it in a book and claim it is fair use, but you would get sued, you would pay my attorneys fees, and you would pay handsomely in damages. So please go ahead and do that and we can see who is correct. Just because you call it fair use doesn’t make it fair use. So you can believe you are cute and correct, but you are wrong. This type of ignorant comment just shows how little you know about the law. So please, test me why don’t you.

    Second, you are not getting anything for free. You are coming here and you are being counted. I monetize eyeballs. So thank you for your repeated traffic, your repeated comments, and for coming back over and over and over again!

    You say: “You have a copyright, probably enforceable in America, but the Internet is read all over the globe.”

    The funny thing about copyrights is the international treatment they are given thanks to treaties.

    Also, I think I missed where you addressed the issue I raised about countries that have no intellectual property rights. IF intellectual property rights are the problem why do countries without intellectual property rights not have run away innovation and creativity? I realize you will never answer that question because it would force you to come to terms with the reality that your theory is complete and utter nonsense.

    By the way, did you ever look up ad hominem? Just curious. You seem to not like me saying your arguments are ridiculous and that you aren’t a very good lawyer despite your complete lack of understanding of basic legal principles and the fact that what you write is internally inconsistent and hypocritical. Oh wait, is point out that your a hypocrite what is offensive to you?

  28. J. Mills January 6, 2016 11:17 pm

    Bob Zeidman and Eashan Gupta:

    Very excellent writing and post that gives lots of people an opportunity to explore this interesting subject.

  29. Anon January 7, 2016 9:31 am

    J. Mills @ 25;

    You make a false (logically deficient) correlation with the exact point of what I posted.

    You assume that your parade of horribles has the same relation as having IP laws. This assumption is not founded.

    To wit: if your view on not having IP protection were indeed true, why is there NOT any single one advanced country that has picked up that “belief” and tried it?

    There ARE a few political systems that have tried it – all of which have failed.

  30. J. Mills January 7, 2016 10:05 am

    “To wit: if your view on not having IP protection were indeed true, why is there NOT any single one advanced country that has picked up that “belief” and tried it?”

    I don’t have a good reason why advanced countries persist in warfare, the drug war, rampant money printing, oppressive taxation, or a host of other policies that I think are not good for the general populace.

    I think that there are financially important interests always ready to sidle up to politicians in power and to persuade them to do things beneficial for such special interests. Why does Canada put big tariffs on American beer? To protect Canadian brewers I guess. Why does America send aircraft carriers and fighter jets to the middle-east? I suppose to protect Exxon and Standard Oil’s interests at a subsidized cost to these giant oil companies.

    I think that Pfizer makes billions more than it would make without patent protection and the influence of powerful industries on legislatures explains why all “advanced” countries have patent and copyright laws.

  31. Anon January 7, 2016 1:06 pm

    Once again you make the same mistake J. Mills.

    Your parade of horribles is not a logical rebuttal.

    Repeating your mistake does not make it any less of a mistake.

  32. Gene Quinn January 7, 2016 3:45 pm


    It looks like J. Mills has finally run out of things to stay. Rather than address the legitimate substantive matters about IP and economics raised he decided to ignore the questions and raise unrelated issues of war, drugs and taxation.

    Of course, there is no way to justify doing away with intellectual property laws based on the collective experiences of countries that both have strong laws and countries that have no such laws. Dodging the question and changing the subject signals defeat.


  33. jodi January 7, 2016 5:21 pm

    J. Mills said:

    > “I offer the entire “open source” software community as an example of how fast, cutting edge, technological innovation can happen in the absence of government monopoly protection.”

    The words “cutting edge” generally refers to advancing technology, however, a large portion of open source projects are mostly copycat of something that came before. Re-implementations offer market alternatives but they are not advancing technology or “cutting edge”.

  34. step back January 7, 2016 6:21 pm

    jodi @#33,

    Good point.

    In the reality-based part of the software arts it takes a whole lot more than having an abstract idea and then muttering the magician’s incantation of “apply it” in the presence of Justice Merlin Kennedy’s 2nd year engineering student.

    One of the problematic questions relates to “expectation of success” –will it be possible to actually make it happen in a practical way on real world networks and using various client/server pairs?

    The copycat, open source developer often has the advantage of knowing in hindsight that yes, there is a great likelihood of success because the inventors already did it.

  35. Edward Heller January 7, 2016 6:32 pm

    step back, can you give me one really good example of a “software” innovation that truly advanced technology in an unexpected way? It could be something recent, or something not so recent.

    I am thinking that TCP/IP might qualify. Also, the PRML algorithm invented by Viterbi.

  36. jodi January 7, 2016 7:42 pm


    “unexpected” is not necessary to advance technology. For example, nothing fundamental about public key cryptography (RSA patent) was “unexpected” (everyone knew factoring large numbers was difficult) but its application to computers and electronic communications did significantly advance technology. Another example is Google’s PageRanking patent where weighing backlinks was not “unexpected” yet significantly advanced search engine technology.

    In other words, both were software and both truly advanced technology but looking at things from an “unexpected” lens is less relevant than say how crucial things like patents are to investors to protect their investment on expensive R&D.

  37. jodi January 7, 2016 8:13 pm

    step back,

    “The copycat, open source developer often has the advantage of knowing in hindsight that yes, there is a great likelihood of success because the inventors already did it.”

    Yes seeing the likelihood of success may be part of it – but I think more importantly is how to combine various pieces together is hard for the open source folk to appreciate. What was included, what was purposely left out, what to focus on, what assumptions to make – once they see that then what&how to duplicate it become mostly obvious. For example, think back to the first time you saw or used a spreadsheet (for me it was on my Apple II in the 1980’s) – once you see it laid out it becomes real obvious how to duplicate a basic copy (columns + rows + functions + ability to reference cells). But how many deadends and trials&tribulations did the first person have to go down? …I mean, accounting ledgers didn’t look like that – and they especially didn’t have self-updating functions – so how did that first guy/gal get to the idea that a useful software would be what we know as a spreadsheet?

    I believe that because many in the open source community have not come up with something that truly advanced technology (for one thing it takes more than a weekend coding binge) that they cannot appreciate what it takes. All the deadends and light bulb moments that seemed great until they ended up failing too and back-to-drawing-board and effort that in hindsight appeared wasted and hair pulled out and bouts with self doubt and effort where to get funds to continue and … etc etc… In hindsight, the answers of Tungsten for light bulb filament (Edison), and e=mc2 (Einstein) – both simple to understand and copy but what extraordinary effort, insight, and deadends were encountered before arriving at the final conclusion? Like many things, casual observers cannot appreciate what it required.

  38. step back January 8, 2016 8:47 am

    Jodi @#37

    I am not one to talk because I rarely walk the walk that actual inventors take as they try one dead end after another before finding a combination whose pieces fit together just right as Goldilocks might have said.

    I recall that many moons back Gene had posted an article by one prolific inventor explaining that process, how he and his team had to try hundreds of different options before falling on one that might work. Sorry, I can’t quite recall the fellow’s name.

    But that would be a good example of what the copy cat avoids by picking up at the point where the original inventor demonstrated likelihood of success on two fronts, the first being that of finding an invention which can work at all and the second being demonstrating that there is a market for it.

    People who tout the libertarian tooth fairy story of how my copying from you does not diminish anything, does not hurt anyone, conveniently overlook the sweat equity that most inventors put into arriving at the stepping stone which the copyist takes for granted as the “obvious” place to start. That’s not where the actual inventor started. He or she started way back, many years ago and many dead end trails taken and returned from.

  39. J. Mills January 8, 2016 6:18 pm

    By the way, libertarians opposed to patent and copyright aren’t “overlooking the sweat equity.” As indicated, Miller Brewing engaged in huge “sweat equity” looking to promote what was thought by most brewers to be a silly idea – low-calorie beer. (Real men don’t drink light beer.)

    Had Miller Brewing spent their millions and failed because the idea never got traction in the market, Miller Brewing would have absorbed 100% of the loss on that failed project. Budweiser didn’t put in a penny (nor did Amstel, Keystone, Heineken or others) until Miller demonstrated that Lite was a huge success.

    At which point, everyone else glomed on to the idea, jumped in and thus dimished significantly Miller’s market share, seriously undercutting Miller’s revenue.

    Should Miller have been allowed to restrict, for a time, these competitor’s actions, thus appropriating to themselves 100% of the light beer market for a time? How do proponents of patent and copyright law explain Miller’s huge capital investment, and how did that happen when there was never going to be any protection from competitors jumping in with their copy of Miller Lite? Somehow, we know as a matter of history that Miller did made the investment even though it could never “internalize” all the benefits.

    How do we distinguish between what Coors Brewing did to Miller Lite when it launched Coors Light from what happens to other inventors and innovators if people are allowed to compete just as Budweiser was allowed to compete after Miller showed everyone the path, all at great expense of capital to Miller Brewing?

  40. J. MIlls January 8, 2016 6:31 pm

    I think the examples of this are legion. If you want something modern, there is Uber. Some people go to great expense at great risk to create something new called “Uber.” Had that failed in the marketplace, they alone would be out all the “sweat equity.”

    No sooner is Uber demonstrated to be a great money-making product than Lyft, Sidecar, Carma, and Taxi Magic all step in and start carving up Uber’s market share, thus diminishing Uber’s value.

    What about Netflix? No sooner is streaming video shown to be profitable by Netflix, than Hulu Plus arrives, and then Amazon Prime. Should those who built the streaming video business idea – Netflix – who would have suffered 100% of the loss if it weren’t competitive with cable, be allowed by the state to exclude Hulu Plus and Amazon from the business for a period of years?z

    There are just endless examples because the process called “competition,” which most libertarians support, is fundamentally at odds with the restrait on trade which is central to the whole idea of patent and copyright law.

  41. step back January 11, 2016 1:48 pm

    “Patents Are Private Property, Too”
    Above is an opinion piece subscribing to the idea of Creator-given property rights in inventions.

    I personally do not subscribe to the Creator-given rights idea, but for those of you who do, here is the link to the above opinion piece.


  42. Edward Heller January 11, 2016 1:54 pm

    step back, if one reads Marbury v. Madison, if one is granted a legal right for a fixed term it is the property of the grantee.

  43. J. Mills January 11, 2016 2:35 pm

    One other thought, and that’s the certainty that patent/copyright protection is always subject to the vagaries of litigation and enforcement.

    Not that long ago Apple was simply killing Microsoft DOS driven “IBM compatible” computers because Apple had invented the point-and-click mouse driven graphical interface that DOS lacked. There was a huge lawsuit over Windows. Apple lost. Microsoft won. Hence “windows” the MS version of graphical interface operating system was permitted to compete with Apple.

    Good decision? Bad? Should Apple have been given state protection, allowing it to appropriate to itself 100% of the graphical interface operating system market for a period of years? If not, why not?

    Stuff to ponder.

  44. Anon January 12, 2016 11:43 am

    Some good thoughts (and not just my own) on some more recent threads, but here I will share (in reverse order) some of my musings for J. Mills to consider:


    I wanted to note that the word “promote’ itself is often “victim” to the machinations of large multi-national corporations.

    As used in the constitution,the word does NOT mean only “to improve,” but also – and equally – has the meaning of “to spread” as in an advertising promotion.

    One of the “talking points” is that patents should only be rewarded for (what amounts to) Flashes of Genius, or breakthrough items that radically change the state of the art.

    But that was never the intent of “promote.”

    Further, innovation itself is not actually linear – there is NO such thing as a straight line of “get better.”

    Why do I tie this to large corporations? Because it is in large corporations that the duality exists that such corporations CAN compete directly far better on non-innovation modes, as well as be the ones to fund the higher cost merely linear innovation that a model of “promote only means linearly better” entails. It is this type of established large scale beast that the desire to forestall and remove other’s innovations that threaten the money machine overcome the rewards of innovation.

    On another recent thread [this thread] we had the (errant) supposition that these other types of competitive factors are on par (or should be thought of in the same manner) as innovation. But such is not so. And while there can be innovation in marketing techniques (and other business methods) that SHOULD be rewarded – it is NOT in such innovations that the power that large corporations will typically wield and that are a threat to real innovation efforts.

    Again, when the entity has characteristics that naturally give rise to the (objectively reasonable) expectation that it is better (for the entity that is not attached to any one sovereign) to squelch the innovation of other’s and weaken patent systems which have been shown to work with strong patent rights.

    In the larger scope of “things at play,” the power of the corporation is indeed a critical aspect.

    Multi-national corporations, being a thing unto itself, has an identity and characteristics that truly transcend the characteristics of ordinary citizens that many laws – and especially the types of laws that seek to reward and promote** innovation in the many paths that innovation may take.

    Laws in the IP sphere can operate at the corporation level. Night Writer correctly alludes to one such form of law: tax breaks.

    More traditional types of IP law also can be “used” by corporations in the same vein as use by individuals.

    But the differences between corporations and individuals is an area that merits careful attention – especially when it comes to the evolution of law, what powers are shaping the evolving law, and how the balance of benefits develops.

    Patent law is certainly not the first area of law to succumb to “agency capture” (think of the savings and loan debacle, of the [near repeat] of the big bank bailout).

    How to stop this? Diligence of course. But sadly that may not be enough. I was one of many attorneys that I know that actively reached out to Congress during the AIA passage, advising of the (many) dangers in that bill (now law). But again, we have signs of a systematic capture (think Citizen’s United).

    One of the differences between multi-national corporations and indiviudals which is pertinent to IP law is that citizens by and large are typically citizens of one country, and citizen’s actions tend to benefit that one country. IP law by its nature is sovereign specific. By this, I mean that IP law – at its heart – is meant to benefit the specific sovereign itself. Comity and nation to nation respect does extend the benefits, but those benefits remain geared to what is best for any one sovereign.

    Multi-national corporations fundamentally change that critical aspect of IP law. Multi-national corporations, unlike real people, owe NO allegiance to any one sovereign and at point, owe allegiance to NO sovereign. The only allegiance is to themselves. When real people act in a manner solely for themselves (in the Adam Smith Invisible Hand mode), the natural constraint of that person being in and of a sovereign is what yields the ultimate benefit for the sovereign. When you strip out this underlying mechanism and have an entity divorced from what ultimately is the sovereign, you end up with perversity and decay of the sovereign.

    Our founding fathers were rightly suspicious and cautious of entities such as corporations. While there are definite benefits of such entities, we should NOT forget that there are real dangers also associated with such, especially when it comes to money and power.

    So, my erstwhile libertarian, J. Mills, I would put to you that is not the government or the patent system that is the “enemy” here. And for all of your professed desires to eliminate “interference,” you lose sight of the basics of why this particular “interference” is so important. I would admonish you to not so blindly cling to a political dogma as to be slavish to the consequences that come from your pursuit. In that path lies the ability of others to use your own passion to further ends that you just may not like. Competition on non-innovative factors is simply not the same as competition on innovative factors, and your view, which may lack appreciation of such things, may be simply too pollyanna to even want to be held.

  45. Richard Peterson January 12, 2016 9:01 pm

    At some point, we need to find a way to reward the maker in the useful arts through our patent system in an equivalent manner that we reward an artist (not even one of science) through the copyright system.

  46. Edward Heller January 12, 2016 9:06 pm

    Well Richard, right now, for the price of an application and a few more for an attorney, one gets not a patent, but an expensive lawsuit imposed by big corp in the form of the IPR.

    Soon, only fools and the well-healed will remain in the patent system.

  47. Richard Peterson January 13, 2016 6:23 pm

    Yes, today Edward, I would be remiss in my duty to my clients if I did not inform them of that reality. Even clients of means, I cannot advise that their filings will result in any meaningful coverage.

    I suggest for those of modest means that the patent system may be beneficial as an application publication. Much like the IBM abstracts published by IBM for defensive reasons.

  48. Bob Zeidman January 16, 2016 2:10 am

    @J. Mills, with regard to Apple, Microsoft, and a windows user interface, Apple sued Microsoft for copyright infringement and lost because John Sculley at Apple had given Microsoft the rights to use the interface in return for writing killer apps like Word and Excel for the Mac (see https://en.wikipedia.org/wiki/Apple_Computer,_Inc._v._Microsoft_Corp.) Anyway, Apple had lifted the windows GUI from Xerox. Xerox sued but the case was dismissed because Xerox waited too long (see http://www.nytimes.com/1990/03/24/business/most-of-xerox-s-suit-against-apple-barred.html). Essentially Xerox and Apple did have copyright protection, but they gave it up.

  49. J. Mills January 18, 2016 12:41 pm

    I suppose the Apple-Windows litigation is complex, but the question remains: Would the world, or America, be better off if someone – Apple or Xerox – had been able to keep competitors out of the graphical user interface business, relegating all other operating systems to the old command line interface?

    That would have been lucrative for the holder of such restrictions, but it seems unlikely that society as a whole would have been advantaged.

    It is just another example of the conflict between the competition of free markets, which libertarians generally approve of, and the restraint of trade inherent in patent-copyright ideas about “property” rights.

  50. Bob Zeidman January 18, 2016 1:32 pm

    @J. Mills, I think it’s a good question and worth asking. However, I believe it’s because of copyrights that Apple had the incentive to create such a system and could license it to Microsoft as it did. You could ask the same question of physical property: Wouldn’t it be better if everyone could just share each other’s stuff and use it when they wanted. The world would be a better place. In theory, yes, but in practice, no.

  51. Edward Heller January 18, 2016 3:38 pm

    J. Mills, if the inventor of something truly revolutionary cannot obtain and enforce a patent because it is so revolutionary, then a major incentive to invest in the development of new technology is removed.

    Trust me, that is a lot worse that the public being limited to one source of a product for a short number of years.

  52. Edward Heller January 18, 2016 4:29 pm

    Bob, “Wouldn’t it be better if everyone could just share each other’s stuff and use it when they wanted. The world would be a better place. In theory, yes, but in practice, no.”

    Bob, this logic fails because it assumes people do not need to make money. But, if making money is vital and people have choices to make every day, they will choose to make money rather than not. If the investment in new technology benefits society as whole, there is no marginal benefit for the inventor. It follows that it makes no sense to make the investment in the first place.

    The result of such a society is known. Rome existed for a thousand years. It had a functioning court system; but technical progress was glacial. A large part of this had to be that the Romans had no concept of protecting intellectual property.

  53. J. Mills January 18, 2016 5:46 pm

    Edward – “If the inventor of something truly revolutionary cannot obtain and enforce a patent . . . then a major incentive to invest in the development of new technology is removed.”

    Agreed that’s the theory. In practice, it’s unclear whether that’s real. First, it doesn’t explain the prodution of things like Miller Lite, for which there is huge initial investment and no protection at all from competition – or the graphical user interface which Windows glomed onto after someone else built it, as did Linux later. It dosn’t explain the start of Uber which is subject immediately upon success to competition from Lyft, Carma and others. A person who creates something novel certainly has a head-start on the money to be earned by production; the question is whether much more is obtained by allowing that person, in addition, to exclude competitors for a period of years.

    What we know is that there is a minimum price that inventors must receive, but anything over that will be accepted. There is a maximum that people generally will pay for a product. If the minimum an inventor must receive is greater than the maximum all users will pay for the produtt, then there isn’t likely going to be any invention. If the maximum people will pay exceeds the minimum the inventor will receive, then generally invention will occur. But, often there is a large spread between the minimum the inventor must receive and the maximum people will pay. Patents and copyrights allow the inventor-producer to generally discover this maximum. Without those laws, people will tend to discover the minimum the inventor will insist on. And, so generally, the effect of patent-copyright law is probably far less than any of its proponents imagine as to incentivizing creativity. What it does for sure is limit distribution and increase the revenue to the holder of the patent-copyright.

    Linux is, for example,unpatentable and is subject to a “copyleft,” not a copyright, meaning that it can be freely appropriated by anyone. Still, it was created. There are millions of other such examples.

    In short, what you are saying is that people won’t invent unless they can internalize all the benefits over long periods of time. It might be that being able to reap some of the benefits over a short period of time is all that’s required.

    And, Bob Zeitman – good question: “Wouldn’t it be better if everyone could just share each other’s stuff?”

    That question brings us back to my opening comment and the idea that “sharing a car” means depriving the owner of its use – at least for a time. Freely sharing, say a graphical user interface doesn’t deprive anyone of its use at all. If you could freely borrow your neighbor’s car and yet have it there all the time for his use also, well, then I think the world would be a better place without property rights, which seem to be essential only in a world of scarce resources.

    True enough that free competition”deprives” the originator of money and maybe market share, but then allowing anyone to compete with Miller Lite or Uber also deprives those companies of money they would receive if allowed a governmental restraint on trade. Netflix took on the risk of challenging cable TV, but upon success found itself dealing with Hulu and Amazon Prime. Starbucks was never going to get a patent on high-end coffee, and was going to be subject to Tullly’s, Peete’s and a raft of other competitors. Nonetheless Starbucks coffee was created.

    These are all things suggesting that creativity might not require restraint of competition to flourish.

  54. Bob Zeidman January 18, 2016 6:04 pm

    @Edward, I don’t think you realize that we’re on the same side. However,

    1. The Roman Empire lasted roughly 500 years, not 1,000 unless you count the Eastern Roman Empire (the Byzantine Empire), which was a completely different culture and government.

    2. The Romans did have some IP protection laws (see https://en.wikipedia.org/wiki/Ancient_Rome, in partucular the reference to my book on IP).

    3. The Romans did make great technological advances considering the size of the population and the state of science and technology.

    4. I think that to blame the “glacial rate” of their technical progress on the lack of IP protection is a great oversimplification.

  55. Richard Peterson January 18, 2016 6:39 pm

    Having watched more playoff football than my mind can digest, I still marvel at the software trick of marking a first down field line in that yellow stripe that is optically under the players feet in the same manner as the permanent yard line field stripes. It is all done with software and computers. I don’t think that any American wouldn’t see that this is inventive and patent protectable.

    Yet, under Alice, some would argue that this is simply not protectable under our existing patent system, lacking tangible apparatus.

    The sharing economy simply becomes the selfish economy based on might and branding. The idea of Uber is simply a tax and liability dodge that cries out for competition. Same with MillerLite, if anyone is so bereft of taste that one would buy into the hype, which is advertising and branding, not innovation. And yes, somehow IBM was issued the greatest number of patents this past year. For what?

  56. Edward Heller January 19, 2016 9:12 am

    Richard, on the yellow stripe, what is the invention, the idea of putting the stripe down using conventional technology or the idea plus some new technology discovered that enabled that to be done?

  57. Anon January 19, 2016 10:25 am

    Mr. Heller,

    Could not” is not the proper measure.

    Rather, obvious merely requires that a Person Having Ordinary Skill In The Art would not have done so.

    I would advise you to be aware of (and beware of) the pernicious slip into the “Flash of Genius” realm that had in history past, and prompted our Congress to react against an anti-patent Court and install the Act of 1952.

  58. jodi January 19, 2016 11:33 am

    J. Mills,

    You seem to be conflating re-implementing something that is obvious in hindsight with inventing.

    In #53 you said:

    “Linux is, for example,unpatentable and is subject to a “copyleft,” not a copyright, meaning that it can be freely appropriated by anyone. Still, it was created. There are millions of other such examples.”

    Creating based on coming into contact with something that came before is not inventing. Re-implementation, or copying – yes – but “inventing” definitely not.

    In #12 you said:

    “I offer the entire “open source” software community as an example of how fast, cutting edge, technological innovation can happen in the absence of government monopoly protection.”


    “What I know for sure is that the “open source” community shows conclusively that copyrights and patents aren’t essential to innovation.”

    Actually, if anything, it indicates quite the opposite – the fact that many open source projects are simply a new implementation of something the creators/maintainers saw elsewhere first is more indicative that patents are indeed necessary to spurring invention. Otherwise, where are all these inventions that came from open source projects?

  59. jodi January 19, 2016 11:46 am

    Richard Peterson,

    Your yellow football stripe invention is a good example. Furthermore, whether it takes the form of software that is loaded after computer(s) are booted up, or etched onto silicon – it doesn’t matter, it advanced technology and state of the art.

    Another televised sports example was the addition of the red or blue trail behind fast moving NHL hockey pucks. That one was less successful (dropped altogether?) than the yellow football stripe. Which came first I don’t know, however I suspect that one influenced the other – which exemplifies the down-the-road benefits from spurring the initial invention.

  60. jodi January 19, 2016 11:59 am

    Going back to the original topic of Libertarians and patents – one does not have to go further than showing the critical role that patents played in American gun or firearms inventions to convince any Libertarian of the value of a strong patent system.

  61. J. Mills January 19, 2016 1:28 pm

    Jodi –

    “Creating based on coming into contact with something that came before is not inventing. Re-implementation, or copying – yes – but “inventing” definitely not.”

    That seems to me kind of a fine line and tenuous distinction. One could identify Einstein’s general relativity as “true creative genius,” or one could describe it as merely the obvious (in hindsight) and logical resolution of data arising from the famous Michelson-Morley experiment showing that light traveling in the direction of earth’s motion moves at the same speed as light traveling perpendicular to earth’s motion. Logically, that indicates that the speed of light is constant and from that Einstein’s famous equations are little more than math exercises.

    I suppose “pet rocks” aren’t more than just marketing gimmicks without any “true” creativity – something Mr. Richardson believes is all that underlies Miller Lite and Uber. But the people who first thought up those multi-million dollar ideas would probably take issue with anyone suggesting there’s no creativity or “invention” associated with their products.

    My bigger point has always been that because of what I pointed out about the nature of “theft” and “property” and the unique status of IP – which can be appropriated without depriving its owner of anything – in the end, patent and copyright rests on the idea that we should give state protection against some specific kinds of deprivation of market share. It is based on the fact that allowing others to compete in the production of new things deprives the originator of those new things of money.

    I agree that’s what it does. But, all competition deprives the original producer of money and market share. So, libertarians need to come to grips with why free trade in some areas of commerce is deemed “worthy” of being restrained and others areas of commerce are not. Saying that “true invention” should be protected, while mere “marketing or advertising” should not, seems like a distinction without a difference – but I also admit that arguing about that certainly make some people quite wealthy.

    I find that whole notion odd because generally new and novel ideas – true creativity – are not protected. The idea of general relativity can’t be patented or copyrighted, only a specific implementation of the idea is protected – and really only commercial implementations are protected in ways that matter. And yet, by most people’s measures, it’s the idea of general relativity that embodies true creative genius, and discovering that sort of thing is what should be encouraged to advance society.

  62. Gene Quinn January 19, 2016 1:49 pm

    J. Mills-

    No matter how many times you say that IP theft deprives the owner/creator of nothing you will NEVER be correct. In fact, it is even more ignorant the 100th time you say than it was the first given that I and others have explained this to you in ways that even you should be able to understand.

    Innovation costs money. If you want innovation you cannot allow copycats to steal with impunity while the innovator goes out of business because they cannot compete on price. The innovator has to charge enough to recoup the investment necessary to innovate, while the copycat does not. It is really a VERY simple concept. Why such a simple concept escapes you is truly a mystery. Of course, it does speak volumes about your lack of knowledge with respect to very basic economic concepts, as well as your intellectual honesty.


  63. jodi January 19, 2016 3:42 pm

    J. Mills,

    You repeatedly point to all the technological advancements from open source, yet when I challenge you to name some, you ramble on about things not relevant. Why don’t you name even just *SOME* of all these many open source inventions you repeatedly claim and which you base your entire argument upon?

  64. Richard Peterson January 19, 2016 4:39 pm

    Courts seem to be going back to “inventive concept” as a criterion for patentability. This begs the question since we are back to attempting to qualify “invention.” “Gist,” was briefly in vogue, but capturing the “idea” and making an implementation should be patentable, if they are otherwise proper subject matter and not obvious. Let’s assume the “yellow stripe” implementation used a general purpose computer and off-the-shelf programming tools, no new “technology,” whatever that means. Why not patentable?

    Back in the day, Radio Shack came out with a kit that could create 101 different projects. Why was it patentable if the same, say, lie detector project, was hard wired, but if existing as a programmed computer was not? (Assuming it was novel and not obvious.) See #59 re booted or etched in silicon. Could’a, would’a, should’a, is court created criteria.

  65. Anon January 19, 2016 6:23 pm


    Congress explicitly acted against “inventive concept” or “gist of the invention” or any other of a dozen or more like phrases when they created section 103 of the 1952 Patent Act.

    This is well documented in the writings of Judge Rich, one of the architects of the Act that Congress made into law – and did so in response to the Courts having become decidedly anti-patent.

  66. J. Mills January 19, 2016 11:40 pm

    Jodi –

    OK here’s an open source “invention” – Ubuntu Linux, which is a totally free integrated open source PC operating system. And yes, it’s sort of building on other’s work, which is about like everything – including General Relativity which builds on the Michelson-Morley experiment. You can call Ubuntu not an invention, but its creators will disagree. As Richard Peterson points out, defining things like “novel” and “not obvious” is awfully subjective.

    And Gene, why do you continue too assert I profess that taking IP deprives the creator of “nothing.” I admit freely that it deprives the creator of market share and some (but not all) money. My point here is that virtually all competition does exactly the same thing. When Tully’s started mimicking Starbucks, it cut into Starbuck’s market share and money. Starbucks would have more if it could restrain others from using the idea of gourmet coffee. Bud Light cuts into Miller Lite’s market share in the low-cal Pilsner beer industry. Microsoft cut into Apple’s market share and money when it delivered Windows with its GUI. Samsung cut into iPhones when it delivered its Android smartphone. That’s exactly what competition does. It’s what Amazon Prime and Hulu are doing to Netflix. It’s what Carma and Lyft are doing to Uber.

    The creator of all such products has a jump on the competition. It’s not clear that, in addition to the competitive advantage of being first to deliver, the creator needs also a state-enforced monopoly on all production for a period of years. Apple makes a lot of money even if Samsung can compete. Starbucks wasn’t driven out of business by Tullys – although it’s profits were somewhat reduced. Uber probably won’t be driven out of business by Lyft, although its profits are reduced because it hasn’t a monopoly on the business model.

    Why should Sam Adams have to suffer the competition of other craft beers when others can eliminate the competition with patents and copyrights?

  67. jodi January 20, 2016 2:51 am

    J. Mills,

    Do you really not see how shallow your argument is? If you really believe that Ubuntu is an “invention” then please elaborate on what technical aspects it introduced that advanced the state of the technology.

  68. J. Mills January 20, 2016 9:53 am

    Jodi –

    What so dang technical about a wheel? (But someone invented it.) Once the wheel is crafted, a bicycle is just lumping two of those together with pedals.

    What’s to technical about putting a yellow line on the TV to show a first-down line?

    What’s so technical about Scotch Whiskey? It’s just boiled beer with the vapor caught in copper pipes.

    A telegraph is just a copper wire with a device on each end to register clicks. What’s so technical about that?

    I think it’s easy (after-the-fact) to minimize new ideas and new, novel thinking. I know that courts and legislators involved with patents and copyrights talk about things like “novel” or “obvious,” but in practice, those are distinctions which don’t have much meaning.

    I confess that my knowledge of computer operating systems is woefully limited, but if someone asked me to bang one out, the technical difficulties would overwhelm me. Maybe that’s just because my thought processes are too shallow.

  69. Anon January 20, 2016 11:04 am

    J. MIlls,

    Your response at 68 is meaningless and a logical fallacy – much like your responses earlier to on-point criticisms of your views.

    It is entirely unhelpful to attempt to conflate multiple different things, draw a false parallel, and then make what can only be termed asinine statements.

    Your thought processes are more than just “too shallow.”
    Likewise, it is more than just your thought processes that are “too shallow.”

    Please stop playing the poor logic games and try to contribute to the conversation. If you cannot contribute, and you cannot advance your belief system in an intellectually honest manner, simply withdraw.

  70. jodi January 20, 2016 11:21 am

    J. Mills,

    “I confess that my knowledge of computer operating systems is woefully limited”

    hold on, so you base your argument on technological advancements are happening in open source by the millions and then hold up Ubuntu Linux as your prime example yet when challenged to elaborate on example of these advancements it turns out you know nothing about the subject?!?!

    You are forming conclusions based on fundamental assumptions which it turns out you know nothing about – only statements that you heard from others and take them as true. I suppose you believe what you read in tabloids as well.

    I originally suspected you had never truly invented anything, but it turns out worse – not only do you not have the technical background in the subject, but you have also not even studied a technological advancement. Why would you ever think about arguing about something you know so little about. As a male, I don’t go onto female forums and talk about what it’s like to be pregnant and how to improve things, etc… – yet by arguing how open source innovates without patents without basic knowledge is essentially what you are doing. I change my label from shallow to incompetent.

  71. Gene Quinn January 20, 2016 11:58 am

    Does it shock anyone that J. Mills has admitted to knowing nothing about computer operating systems?

    The fact that he knows nothing about operating systems has not stopped him from offering his uninformed thoughts on the subject. Now he is even asking: “What’s to technical about putting a yellow line on the TV to show a first-down line?”

    I think it has become abundantly clear that J. Mills is just here to cause trouble and is not interested in engaging in a thoughtful debate.

  72. Anon January 20, 2016 4:52 pm


    The most damming aspect of J. Mills’ posts are not that they are uninformed.

    He has been informed.

    The most damming aspect is that he is unwilling to recognize when he has been informed and clings to his prior belief system regardless of being informed.

    Such a one is not interested in any sense of dialogue.
    Such a one will not – cannot – learn.

  73. Richard Peterson January 20, 2016 6:24 pm

    Not to belabor a point, but I believe that the American libertarian is quite willing to rest on the U.S. Constitution that grants certain rights that the libertarian is quite willing to accept as boundaries for commercial enterprise. In addition to contract, one of the boundaries is Section 8, ” To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    Now, every libertarian I know is willing to operate under the rules set by Congress, bad as they may be. Anon is correct that the 1952 Patent act attempted to set forth some ground rules as to what is patentable. But courts, including our illustrious Supreme Court are backsliding. The KSR International case is a major backslide.

    While common sense indeed should be a factor, if the invention could have been invented by one of ordinary skill, and such a person would have made the invention giving trends in the industry, and would have made the invention if rewarding (financially) then the invention was clearly obvious. This is a long way from Judge Rich’s intent when codifying section 103 regarding obviousness.

  74. Richard Peterson January 20, 2016 6:37 pm

    The last “would” shouda been “should.” Thus, commercial success is now used against the inventor, as commercial success (from hindsight) establishes the should’a. Only bad inventions are therefore patentable. Classic Catch-22.

  75. Edward Heller January 20, 2016 6:38 pm

    Richard, “Could have been invented by a PHOSITA?”

    It is interesting how we continue to stray into the land of the skill level of a hypothetical person, and what he would find obvious. All we get with such a standard is uncertainty — a battle of experts about what some hypothetical person could do — that only other experts can understand.

    It is to be observed that the standard that it was intended to replace was an objective standard where everything about a combination had to be known for it to be the work of one of ordinary skill in the art including the utility of the combination. Now Supreme Court had allowed that this was a matter of degree in some cases. But in such cases, the difference in degree add to be a difference in kind, something unexpected.

    All of this was provable with evidence. It was an objective standard; but it has been replaced by a subjective standard which, I think all would agree, has brought a great deal of uncertainty into the patent law.

  76. Richard Peterson January 20, 2016 7:02 pm

    Take the “Post-it” note, As I recall, invented by a 3-M chemist skilled in glues. Two elements, a paper piece and a semi-stick glue along one edge. From hindsight, any PHOSITA could have invented such a product. But, they didn’t. I don’t know whether a patent was granted, but in my mind it was patent worthy. “Synergy,” another discarded criterion, now coming back in vogue.

  77. Edward Heller January 20, 2016 7:22 pm

    Richard, synergy indeed. If the sum of two old things produces something new and unexpected, which is generally provable with evidence, then it should be patentable regardless of some expert testifying that in “his” opinion, it was obvious.

  78. Anon January 20, 2016 7:28 pm

    Mr. Heller @ 75.

    You struggle against what is the actual law – all the while your known stances elevating the Supreme Court into law writers suffered the very thing that you claim comes from the actual law.

    May I remind you of history and that it was Congress reacting against an anti-patent Supreme Court that could not (would not?) coalesce the meaning of “invention,” “gist of the invention,” spirit of the invention,” or any other of a number of other like terms with the power of common law authority that had been given to the courts?

    Your attempt her to paint a “rosy picture” simply does not match reality. Your attempt to turn a blind eye to the faults of the Supreme Court will not stand.