Beware the Anti-Patent Misdirection and Lies

Anyone who has been reading IPWatchdog.com over the last several days knows that anti-patent advocates have been lambasting me for taking the position that patents are not evil and that more than a 0 year patent term is appropriate.  This debate was progressing about as well as you could expect I suppose.  I was making arguments and the anti-patent advocates were making fun of me and never addressing the points I raised, then accusing me of dodging them and being “eviscerated” by their arguments that lacked all substance.  I feel confident that anyone who would read what went on would have to come to the conclusion that I was directly addressing the issues, defending my positions, providing counter-arguments to what they were raising, while at the same time old and tired non-responsive comments were posted.  Everyone can see what happened for themselves, but there is one thing that I think deserves to be pointed out directly and not left to be unseen in a long and tedious diatribe of comments.  When all else fails and the anti-patent advocates are boxed into a corner they simply lie about reality.  And yes, I can prove that definitively.

Near the end of a long comment string associated with the article Responding to Critics: My View on Patents and Innovation, Stephan Kinsella posted the following comment:

The truth is that this is not at all accurate. I did offer this, specifically and repeatedly, and in private e-mail communications between myself and Kinsella. You can see the e-mail in which I offered this below (with e-mail addresses redacted and only my communication provided).

In fact, I offered this very type of “debate” over and over again, both in the e-mail above, in a blog post and throughout the comments to various posts on IPWatchdog.com.  Now that Kinsella cannot hide from the offer any more he elected to either lie or be reckless with the truth, and call my arguments “fumbling,” which I suppose is intended to divert attention from his unwillingness to engage in a point by point discussion.

On top of this, Kinsella wrote this on his blog:

I did not mean to imply you had not offered to debate. Sure, you’ve offered to debate. No need to post old emails or hysterically accuse me of being a liar.

****

I am concerned that a debate with you would be a big waste of my and the audience’s time and simply make you look ridiculous; I have no desire for you to be embarrassed. But I’m still willing to do it, if someone can arrange it, and subject to suitable rules that keep you from evading questions, as you have repeatedly done in recent days in our written exchanges.

Isn’t this so typical.  First he says he didn’t mean to imply I had not offered a debate, when that is not only what he “implied” but is exactly what he said!  Then once again with the tired and ridiculous — I don’t want to debate you because I would embarrass you and I am to much of a gentleman to embarrass you.  I think the right way to read this is that he is a coward.  He then goes on to say that he will still do it if someone can arrange it so that I don’t evade his questions.  That is laughably ridiculous.  Everyone can see that he doesn’t want a debate with me and is coming up with all the school-yard excuses for disengagement.  Does anyone really believe Kinsella wants a debate?  I have asked over and over again for him to answer one question and he refused repeatedly, yet I am the one evading?  How curious.

The central question in the debate is who will pay for innovation without a patent system, and Kinsella refuses to answer that question.  He finally did give lip service by saying the innovator pays, of course.  Really?  No kidding?  But why would an innovator pay for innovation when anyone can copy them and do so without having to recoup the cost of research, development and creating a market in the first place?  The answer is no one would pay for innovation without exclusive rights, and everyone knows that.  That is what investors require to provide funds, and why many good products never make it to market because once they do there will be knock-offs.  For crying out loud the knock-off problem is addressed in international circles near the head of state level, and is why some countries are on US watch-lists.  Knock-offs are the market rule when there is no exclusive rights, or no will to enforce global IP laws.  That would be the market rule in the US without exclusive rights.  We don’t need an experiment to tell us that, we just need to look at history and around the globe.

What I really want is some kind of even situation where folks can figure out for themselves who answers questions and who has the superior answer.  That is why I proposed the answering of a series of common questions.  The anti-patent crowd typically does not provide much more than conclusions and insults, and if they are forced to answer the same questions I answer it will be clear to everyone who is correct and who is wrong.  This, of course, is why they don’t want to do this and instead think I should address their insults and conclusions.  I won’t do that, although I would LOVE the opportunity to have a real debate with Kinsella or anyone, in real life or over the Internet.  I know I will win, and I am not running away.  I stand ready any time, any place and anywhere.  No preconditions, no excuses.

So how many actually think Kinsella or others will go for this?  They are boxing themselves in a corner for sure.  It will be fun to watch the series of excuses that emerge now.  I am all to happy to be embarrassed by Kinsella, and if that is what he thinks he can do then lets get it on.

So why am I doing this?  Those with an anti-patent agenda lie, are reckless with the truth, mischaracterize facts and the law, and we are at a pivotal point right now where intellectual property rights are being assailed from all sides.  Someone needs to stand up and point out that the emperor is not wearing any clothes.  Those with an anti-patent agenda are trying to steal the debate without ever engaging on facts, history and reality.  What I want to do is stand up and take them head on so that everyone can see them for what they are, which is aggrieved persons with an agenda.  They are not on the side of right, and their positions are careless and destructive.  So when you hear anti-patent rhetoric I want everyone to wonder in the back of their mind about this — if they are so right and so sure they would embarrass the competition, why won’t they engage in a debate?  Kinda makes you wonder, doesn’t it?

So gather up your questions Kinsella, and I will answer them in 500 words.  You answer them too and lets get started.  Then I will provide my questions, and we can answer those as well.  I suspect where this will break down is not in me refusing to answer.  But time will tell.  I suspect deafening silence.

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70 comments so far.

  • [Avatar for Mike]
    Mike
    February 9, 2010 10:16 am

    Greg Aharonian (Internet Patent News Service) or RANT service sent out this interesting tidbit today. The “copyright works” software people may want to rethink their stance after this.

    – COPYRIGHT LAWSUIT OVER OPTIONS MARKET SYMBOLS

    Wall Street Journal, February 4th, has a brief news item on how a New Jersey company, SFB Market Systems, is suing seven U.S. options exchanges and an options clearing group (including the Chicago Board of Options and Options Clearing Corp.). SFB is alleging that the eight defendants reverse-engineered its copyrighted computer program for creating options symbols (SFB’s “Symbol Manager” program). The illogic of software copyright, once again, since the point of reverse-engineering is to extract ideas, and last I looked, useful ideas are not copyrightable.
    You want to protect software ideas – get a patent.

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 29, 2009 10:56 am

    David-

    I was bummed as well, but grateful that the folks at GritTV could connect us via Skype video. I will be posting an article soon on that. I thought Laura asked great questions, and she showed a real understanding of the issues when she told us before the debate started… something to the effect that after reading what I sent and what you sent she didn’t know where she stood on the issues. These issues are very thorny indeed.

    I am going to try and start an Internet Radio show soon, and would love to have you come on. I am also game for doing Skype stuff again, and exchanging posts on our websites. I hope that we can have a face-to-face debate sometime as well.

    -Gene

  • [Avatar for David Koepsell]
    David Koepsell
    October 29, 2009 10:50 am

    Well, although we had a forum, and an audience, Gene got ill and couldn’t attend the big debate and emailed me the night before(I was all revved up, too). What a letdown, but still, the producers at GRITtv convinced him to appear via Skype video (a nice, open source app) and the result is here: http://lauraflanders.firedoglake.com/2009/10/27/who-owns-you-corporations-patenting-your-genes/

    In lieu of debate, I gave my talk on the fact that patents are unnecessary, and may even hinder innovation, to the Intellectual Property Society at Cardozo Law School. It was very well received by a sympathetic audience. Hopefully we can arrange a real, face-to-face debate some time in the near future. I would truly have enjoyed it, as I enjoyed the brief, televised one.

    best,
    David

  • [Avatar for David Koepsell]
    David Koepsell
    October 10, 2009 02:11 am

    I’m sure Gene and I can work out the theme with the sponsors. I have no intention to play dirty pool, I just want a good exchange. We’re corresponding with the sponsors, and we’ll set a date and frame a good theme together.

  • [Avatar for step back]
    step back
    October 9, 2009 03:48 pm

    JV,

    I understand about “framing” (Lakoff style) and debate tactics. But by no means does David’s framing of the initial question give him a guaranteed checkmate. I suspect that if Bill Clinton were managing Gene’s debate team, the first revision he would throw in is: Well that all depends on what your defintion of innovation is is. Are we talking about innovation with a small “i” or are we talking about INNOVATION (all caps)? They are not the same thing you know. Nations who have strong patent systems have INNOVATION while nations who have no patent system at all have innovation with a nano-scaled “i”. Which kind of nation does the USA want to be going forward? That is the question.

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 9, 2009 03:06 pm

    Just visiting-

    I think you are right, patents are clearly not necessary for innovation in the abstract. So we should be able to pretty quickly agree on that point and get on to the question of defining what innovation is desired and whether patents are necessary for that innovation. I would love to discuss antibiotics and vaccines, for example. With the entire world fearful about a deadly pandemic flu, and more and more bacterial infections being resistant to antibiotics the question is not whether patents are necessary for ANY innovation, but rather whether they are necessary for the DESIRED innovation. We all know that without patents there will be no new drugs. There is just not enough people with an extra billion dollars who are willing to donate that to the benefit of society. Even if there were about 1 in 10 drugs actually work (perhaps less) so to get a revolutionary pharma advance you have to plan on spending $10 billion. So at a time when pandemic flu and drug resistant bacterial infections are of such a concern it is reckless to even suggest watering down or eliminating patent rights.

    Even if the debate question is “are patents necessary for innovation” I can handle that and still win. If the discussion does not progress to where it needs to go then it would be a very short, boring affair.

    -Gene

  • [Avatar for breadcrumbs]
    breadcrumbs
    October 9, 2009 02:16 pm

    To follow the path of Just visiting’s excellent observations, it may be pointed out a fallacy of the anti-patent crowd in requiring patents only when no other forms of promotion are available.

    For an interesting discussion on “promote”, see the Patent Hawk at http://www.patenthawk.com/blog/2009/06/definitely_not.html#comments

  • [Avatar for Just visiting]
    Just visiting
    October 9, 2009 01:36 pm

    “I proposed to the IP folks at Cardozo a debate on the question: ‘Are patents necessary for innovation?’ … I think that, around that theme, we can have some great discussion, they responded enthusiastically and I’m looking forward to it.”

    Although I’m neither an expert debater or litigator, both know that the person who is able to frame the question to be answered usually wins the debate.

    David’s proposed question is his attempt to win the debate before it even begins. To put his question into different contexts:

    Are airplanes necessary for a viable transportation system?
    Is the interstate highway system necessary for a viable transportation system?
    Is electricity needed for an industrial economy?
    Is the internet needed for communications?

    The answer to all of them are “No.” Similarly, the answer to David’s proposed question is “No” since patents are not ***necessary*** for innovation. Certainly, patents have a far more lengthy history than airplanes, super-highways, electricity, or the internet, but innovation occurred prior to patents. As such, if Gene argues David’s proposed question, he will lose.

    On the other hand, you can propose that the question to be answered is “Do patents provide incentives for innovation?” This is a slam dunk win for Gene if this is the theme he works with. I have met few people that didn’t have an idea that they would like to patent (notwithstanding that many of those ideas aren’t patentable). The public, in general, loves the concepts of innovators, inventions, and patents. It embodies the American dream that someone, with nothing, can create something with little capital besides their own creativity and better their life because of it.

    That being said, a fairer theme would be a debate over what technologies need incentives and what incentives should they be. This is already a fairly common debate (albeit a little more too technical for most audience members). This is a debate, however, that David does not want to engage in – because to suggest that some technologies may need (or deserve) more incentives than others undermines one of his world views – which is that government intervention in business is bad. For David to argue over the merits of what technologies should receive incentives (and what kind), David would have to acknowledge that the best entity for enforcing those incentives is the government. Moreover, the entity making the decisions as to what technologies receive incentives and the kind of incentives to be given is also the government. This is a result that David cannot support, either explicitly or implicitly.

    This leads us back to David’s proposed question. The only way David wins is by advocating the patents aren’t necessary for innovation, and therefore, the patent/copyright system can be eliminated. Of course, the obvious flaw in David’s question-answer-conclusion combination is that the fact “something” isn’t necessary to achieve a particular purpose does not necessary lead to the conclusion that this “something” isn’t desirable in achieving that particular purpose.

  • [Avatar for step back]
    step back
    October 9, 2009 12:22 pm

    Gene and David,

    I think it is wonderful that the two of you can come together for civil discourse on this subject.

    As a first step you should each provide the other with your educational backgrounds. Often I find that disagreements arise from having first and foremost framed our world views in different ways.

    The other day I was listening to a journalist on the radio explaining about the satellite they just crashed into the moon. I went into a literal howl when I heard him tell the public that, if they find water, H2O; on the moon, they can split the H2O to get oxygen to breath; and get this, to use the hydrogen for “energy”. OMG!

    Now of course a liberal arts major will stare at me as if I am a mad man for cracking up over this journalist’s explanation. After all, educated liberal art majors well know that hydrogen can be used as a fuel. What is that fool laughing about? But that’s the point. We come to the table with different educations, different understandings, and different ways of framing things.

    Good luck gentlemen.

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 9, 2009 11:02 am

    David-

    I agree that would make an excellent question to lead off and frame the debate. I personally think the answer is yes, patents are definitely necessary if we want to have a high level of innovation. If we are OK with little innovation then they are not so necessary at all. I also think at a time when there is so much alarm regarding swine flu and a deadly pandemic it makes little sense to be chipping away at incentives.

    Where I personally would love for discussion to go to is this… if patents do not cause access problems, as the HHS report concludes, then it would seem that a patent in and of itself is not a problem. I think the more enlightening question is something like “how long a term is necessary for innovation on the desired levels?”

    I am really looking forward to this. I think you and I could come to some understandings and agreements that will allow for the exhibition of opposing views. What I would love to see is energy spent on figuring out where there is commonality and where the divergence starts. The point of divergence, in my opinion, needs to be more clearly defined.

    -Gene

  • [Avatar for David Koepsell]
    David Koepsell
    October 9, 2009 06:30 am

    re: the debate, Gene stated in his original post: “The central question in the debate is who will pay for innovation without a patent system,” so I proposed to the IP folks at Cardozo a debate on the question: “Are patents necessary for innovation?” … I think that, around that theme, we can have some great discussion, they responded enthusiastically and I’m looking forward to it.

    best,
    David

  • [Avatar for David Koepsell]
    David Koepsell
    October 9, 2009 06:17 am

    Step Back,

    I responded in comment number 35 to your Native American question.

    best,
    David

  • [Avatar for step back]
    step back
    October 9, 2009 04:00 am

    David,

    It is wonderful that you are willing to engage in live open debate with Gene.
    Good luck to both contestants.

    Hopefully the contest will take place in a UFC approved arena cage. 🙂

    My Native American friends are still waiting for Dave’s answer about those artificial property lines his government has drawn on the real estate map. They say those lines are no more natural or real than the artificial property lines his elected government draws around IP when it issues patents or copyrights or other rights in so-called “Intellectual Property”. The Great Buffalo in the sky says all things belong to him who is strongest to take by might and force. This is the way of Brother Bear and it is the way of natural men also. Anything else is a violation of the natural Laws of the Jungle.

    In your debate with Gene, it is hoped that both of you address some fundamental questions:
    1. What are “property rights”? Do they arise as forces of nature or are they artifices created by men to govern how men behave with respect to one another?
    2. If the government has a right to declare rights of exclusive enjoyment as to territories of land and even as to territories of radio frequency (think FCC), why would the government not have a similar power to declare rights of exclusive enjoyment as to territories of intellectual endeavor (IP)?
    3. What is the definition of “software” and how does one draw a bright separation line between that kind of “ware” and other wares, like hardware and firmware? (**)
    4. What is the definition of “business methods” and how does one draw a bright separation lines between those kinds of “method” and other methods, like non-business related methods? Do people, in general (of course there will be odd ball exceptions) waste their time and money patenting things that are not related to their businesses and not directed to making some sort of profit? And if not, wouldn’t a prohibition against business methods be a prohibition against patenting all processes?

    (**) Footnote: Personally, I disagree with Gene’s public definitions of “software”. I argue that there is no clear definition. It is merely a touchy feely nebulous concept and, like a cloud, has no bright line boundaries.

    Cheers.

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 8, 2009 09:52 pm

    David-

    I received the e-mail. A live debate certainly would be very interesting indeed. Hopefully it can be pulled together in time for your visit.

    -Gene

  • [Avatar for David Koepsell]
    David Koepsell
    October 8, 2009 07:46 pm

    Good news, Gene!

    Cardozo Law School is interested. I cc’d you on the email response to their expression of interest. This should be fun to have a real, live debate. Also, I’m looking forward to meeting you in person, finally.

    best,
    David

  • [Avatar for Just visiting]
    Just visiting
    October 8, 2009 07:26 pm

    “As mentioned in previous posts to another thread, I think that it’s unlikely that you will change your mind, nor that I will.”

    So what? A good debate allows each side to explore the strengths and weaknesses of both their position and the position on the other side. I want to know what drives your position more than the amorphous comments of “justice” and “moral and economic” reasons. The Austrian school of economics has been criticized for their eschewing of statistics and mathematics. As such, their economic theory is a bit “squishy.”

    As for “moral” reasons, I am really curious as to what those are? Government action is typically based upon the moral judgment that certain activities need to be curtailed and others fostered. Is it you don’t like government intervention in business because they had made different moral choices than you.

    Don’t confuse big state-run industries in China with the average business. I forgot to add that the Chinese don’t have the labor regulations we deal with or the enviornmental issues — again, closer to your ideal than many countries in the West. If you think their are significant regulations, then you are reading just the press clippings of the government — not seeing what is actually happening on the ground.

    In fact, you should be holding up China as your beacon as to how the laissez faire approach (in a great many aspects) by the Chinese attracts business to China. However, I suspect your world view prevents you from making that argument — it just isn’t politically correct for you.

    Regardless, I gave you some specific hypotheticals through which you can discuss your proposal. Let me repeat them.

    I’ve got a great idea. A valuable idea. People want my idea because they can make money off that idea. I want to sell my idea, and they want to buy my idea. It wold be nice if there was a market (i.e., part of your beloved free market) for my idea. In your perfect world, what mechanism do you provide that will allow me to sell my idea?

    Remember, I spent 2 years of my life on this idea, and I know that the product produced from this idea will make millions.

    Alternatively, perhaps I want to make the product myself, but I need capital to make the product. What mechanism, in your perfect world, will allow me to attract capital?

  • [Avatar for Just visiting]
    Just visiting
    October 8, 2009 03:37 pm

    Where is David?

    I was just getting started on he Austrian school of economics. This would have been fun.

  • [Avatar for David Koepsell]
    David Koepsell
    October 8, 2009 12:22 pm

    Just Visiting:

    China is a market socialist economy, with still a great deal of state ownership of enterprises, as well as significant regulation. I’ve been there twice for several weeks. You are confusing a “black market” with the market forces endorsed by the state.

    I never wanted to wipe the floor with you, I don’t see this as some sort of opportunity to prove machismo or anything like that. I was merely answering questions and providing a point of view and arguments that I believe support it. As mentioned in previous posts to another thread, I think that it’s unlikely that you will change your mind, nor that I will.

    best,
    David

  • [Avatar for Just visiting]
    Just visiting
    October 8, 2009 07:51 am

    ‘300 … to coin a pun … all this talk about patent reform, IMHO, is “academic.”

    I doubt very much that Congress will eliminate patents and/or cede substantive rule making authority to the USPTO. Too many lobbying dollars flow into Congress as a result of patents.

    Patents are important and valuable. As such, there are people who desperately want to keep them and desperately want to get rid of them. As long as that conflict remains, the dollars will continue to flow into congressional relection funds. I doubt that those who will ultimately make the law will want to stop sucking on that teat.

  • [Avatar for Just visiting]
    Just visiting
    October 8, 2009 07:45 am

    “Wow. If you think China is in any sense a free market, then I really am just wasting my time with you.”

    What? China has little in terms of enforcement of intellectual property laws. It has little in terms of government oversight of business. Isn’t that what you are looking for?

    China is a lot closer to your ideal free market as most in the world. In fact, the US and Europe have FAR MORE business regulations than China. Remember, we are talking about the business environment, not the political environment.

    As for wasting your time … I thought we were here — jousting with ideas. If you don’t like my China angle, joust some of my other comments. Come on, I’ve thrown down the gauntlet. Are you game???

    I’m a amateaur “academic” and part-time debater. If you cannot wipe the floor with me and my ideas, then are you really ready for the big time???

  • [Avatar for step back]
    step back
    October 8, 2009 05:28 am

    Hat tip to IPBIZ for pointing out Gary Locke’s editorial:
    http://www.mercurynews.com/opinion/ci_13506908?nclick_check=1

    If indeed the 1952 patent laws are “outdated” then surely the US Constitution is “outdated” and needs to be “reformed”. All criminals must be “prosecuted” quickly and efficiently. And if a criminal is improvidently released upon the public, there must be post-release reviews that quickly undo the error. Harmonization is the way for all things big and small. After all, the people of China and North Korea are happy and smiling. See how they march in lock step at the Olympic or other parades. Smiles on every face. We need to be happy too. “Reform” will bring us happiness. /sarcasm.

  • [Avatar for David Koepsell]
    David Koepsell
    October 8, 2009 05:03 am

    Dear 300,

    Sincere thanks to you for your service. I think you have legitimate grievances, and am sorry for all your troubles. I hope you get them resolved to you satisfaction.

    I do stand by my point of view and my arguments, and appreciate the time of those who have engaged them seriously. It is always helpful to joust about these ideas.

    Thanks as always, Gene, for the forum.

    best,
    David

  • [Avatar for step back]
    step back
    October 8, 2009 03:56 am

    300,

    I feel for you buddy. More than you’ll know.

    Have you seen Michael Moore’s movie, “Capitalism: A Love Story”?

    I think that with the title Mr. Moore was trying to get people to recall Tina Turner’s song, What’s Love Got To Do With It? Our current system is an emotionless, cruel hearted, one way ticket that grinds middle class people like yourself up into little pieces and ultimately feeds them to the sharks.

    If it wasn’t the patent system that got you fooled then it would have been something else. You might have instead invested your life savings with Mr. Madoff. Or you might have sunk your life savings into a 401K plan, or into a home mortgage, etc. Each of them is an illusory Field of Dreams: If You Build It, They Will Come. Each keeps the lower 99% dreaming that one day, if only they work hard enough, play by the rules, they will become one of the upper 1% when in fact it rarely happens. (It happens to some; just like winning in Vegas happens to some, but only to a rare few. The point is to keep the casino bells ringing and to drive the crowd into a feeding frenzy where, on the whole, the crowd keeps feeding the one-armed bandits and gets nothing back in return. Only a rare few win.)

    I wish I had an answer for a better system. But I don’t. This is as best as we got and it isn’t very good at all. You are not alone in having worked on an invention for many years and having sunk a not-insignificant chunk of change into an idea. If you build it they will come. But they don’t. It was just a movie. Just a Dream. If we didn’t have our dreams, what would we have?

    The patent system keeps the Dream alive. If only I design an intermittent windshield wiper system, then “they” (Detroit, or some other group) will play fair and reward me for my brilliant idea. But they don’t. They call you a “troll”. Belittle you. Take your idea without recompense and run laughing all the way to the bank. Then they cry for “reform”. That’s just a code word for letting wrongdoers get away with it time and again. Tort reform. Patent reform. Wall Street reform. Change that the lower 99% will believe in this time around and until the next round comes about. Change that is too big to fail.

    Yeah, Right. Tell me another lie Pinocchio. Feed me another economic Mises theory Mr. Koepsvell. Thank you oh so much.

  • [Avatar for '300]
    ‘300
    October 8, 2009 01:55 am

    Mr. Koepsell –

    You write: “…sarcasm, sniping, and sloganeering.”

    I am sarcastic and I’ve had the honor of working with a sniper or two.

    Perhaps you may wish to exit the sandbox about now.

    It appears that you are better than “us” and that you will probably be wasting your time from here on out.

    Listen to “Just Visiting”. This “person” may be the crux of your next thesis (or non-profitable-but-tax-payer-subsidized book).

    You come here to esponce your theorem. Yet, you bristle at being joustled about by your school mates.

    Why?

    Could it be that we all waste our time coming together here at Mr. Quinns’ expense because we have nothing better to do with our time and energy?

    As I said above: “I don”t know what you do for your walking around money…”, but I can share with you what I do…

    I was born into the “lower middle class”. After wasting half a century + of scraping pennies and hours of my efforts together, I’m still “lower middle class”.

    That’s okay.

    To Academics, such as you identify your self, I’m just a loser. I’m just a write-off. I’m a numerical aberration.

    Set aside the unimportant aspects of my personal being such as: never cheated on my Wife of 25 years, no criminal record, no adherence to any group or religion, not an alcoholic or “illegal” drug addict, no taxation evasion on any level, working a full time job and part time job while care-taking an elderly couple, no race preference for any employment purposes, never late for my “junk” jobs for 25 years, never missed a payment in any debt I gladly incurred, not on any prescription medicine what-so-ever, never missed an opportunity to vote for my “representatives” in my country of birth and choice (so far), that my Wife and I are still waiting for our first vacation together, that I volunteered 4 years of my life for my country by serving in the US Army Infantry, that I’m permanently hearing handicapped in both ears for these past 28 + years from a “friendly fire” incident and that I’ve never filed for a single “green” check from the government for financial aid, that my Wife and I save 6 or 8 anonymous peoples’ lives every 2 months by our donating a pint of blood each for the last 24 years, that my Wife and I volunteered 10 years of physical and artistic assistance to a “native” group of indigenousness people as repayment for the “love” they granted to us up front …

    Whoa! Jeeze! I apologize! We’re here for IP stuff! Pardon me!

    Never mind the 16 years I’ve worked on my one idea to save human lives and prevent human injuries.

    Never mind the $16,000. + (after-taxation) US dollars my Wife and I spent to try to bring this idea to fruition.

    Never mind that this was the only hope in hell that we both shared for these many too long years to extract ourselves from the multi-generational, lower middle class, economic dead-end that has been our unbroken predecessors’ lives.

    Who cares about the jobs this would have created? Who cares how much money this would have stimulated? Who cares?

    I know; all of this is far-afield from the roots of this thread. So let me stretch your kind indulgence for only a couple of more moments here and I’ll be gone from your life.

    I am an individual inventor. I do hold a US Utility Patent on a life saving safety device. I have paid my first of three “Maintenance Fees”. My patent is current and valid.

    …and my patent is under assault from the very last entity I would have ever guessed would assault me … the US Government .

    I’m an ignorant ass.

    I thought that a US Utility Patent was a contract between me and the US federal government.

    I thought that what ever the “deal” was, it was incapable of defeat as long as the US government was solvent.

    I … was … wrong.

    “Patent Reform” is “Breach of Contract”. Period.

    If the people much more brilliant than me want to change the rules of engagement, so shall it be.

    However; if they want to change the rules midstream then they will have to come to me to re-negotiate our mutual contract.

    Any other “deal” is null and void.

    Change the rules? Fine. Draw a line in the sand. “From this moment forward, here’s the new rules”.

    Grandfather the old contracts. Give a 5 minute break to those poor hard-working individuals in the USPTO. At the end of that break, announce: “From this point forward, here are the new rules”.

    No one has the right to change the rules mid-stream; not without re-negotiation with each and every patent holder.

    Change the contract we “had” with each other? Without even having the “common” courtesy of asking my opinion?

    As they say around here: “Down the road”.

    Continue on their course?

    Then: we have no agreement.

    Then: we have no contract.

    Then: I wasted 4 years of my life jumping through the USPTO hoops.

    Then: I wasted thousands of my after-taxation dollars trying to solidify a patent in flux.

    Then: I have no patent.

    Then: we absolutely have nothing in common.

    … and now lay waste is the only hope my Wife, elderly widowed Mom, and I ever had of breaking-out of the “lower middle class” by pulling ourselves up by our own bootstraps.

    Shame.

    Shame … on you.

    Shame on each and every single one of you.

    Don’t ever think for a moment that any of us will ever believe your lies and deceit again.

    Oh and an insignificant little burr under your future childrens’ saddle may be this: “Inventors’ can not help but create something out of nothing”. Really? Like we can’t help ourselves?

    Check this out: I have 400 + “ideas” written-up in a notebook in a bank box in another state. If I pursued 1% of those ideas there would be 4 more products and services out there to hopefully make life a little easier on somebody.

    In a few more weeks of lobbyist-greased political maneuvers fueled by academics, I’m gonna have me a little bon-fire in my back yard.

    Nothing of importance.

    Just a bunch of scraps of meaningless paper.

    And I will bid all of you good people: ” …good bye and I wish you the best”.

    Soon.

    Unfortunately, very soon.

    I Thank You Mr. Quinn, Mr. Koepsell, and all of you anonymous spirits out there for your time and attention.

    Fare Thee Well.

    ‘300

    I can tell you a couple of unimportant things to ease your mind and save our mutual readers here on Mr. Quinns’ forum. I am an inventor. I hold a US Utility patent. It was granted in October of 2004. It is a life saving safety device. It – if embraced – would have the possibility of saving the lives of your Loved Ones and very possibly saving your own life. Is this important? Does this matter to any one living or dead?

    Well, this is all academic. Because by the end of this year, the USPTO and it’s sucking-up to the political “correctness” that permeates the academic one-world order (excuse me; I meant to say: “Harmonization”)

    and the “contract” that I entered into at great expense with my unimportant Wife after we saved up for after many years of after-taxation US dollars

  • [Avatar for David Koepsell]
    David Koepsell
    October 8, 2009 01:47 am

    Wow. If you think China is in any sense a free market, then I really am just wasting my time with you.

  • [Avatar for Just visiting]
    Just visiting
    October 8, 2009 12:29 am

    David:

    Let’s make it simple.

    I’ve got a great idea. A valuable idea. People want my idea because they can make money off that idea. I want to sell my idea, and they want to buy my idea. It wold be nice if there was a market (i.e., part of your beloved free market) for my idea. In your perfect world, what mechanism do you provide that will allow me to sell my idea?

    Remember, I spent 2 years of my life on this idea, and I know that the product produced from this idea will make millions.

    Alternatively, perhaps I want to make the product myself, but I need capital to make the product. What mechanism, in your perfect world, will allow me to attract capital?

  • [Avatar for Just visiting]
    Just visiting
    October 8, 2009 12:17 am

    “My objections to IP are founded, as explained at length above, at the inability of governments to efficiently direct or manage markets, and the interference with personal liberty and individual valuation involved in any such attempts.”
    Private industry, particularly the larger the company, is no better.

    “What we need are more rational fishermen with greater foresight.”

    A comment that would make a hardcore economist cringe. Like communism, you are basing your hopes that 100% of the people will act in a rational manner. This isn’t the case, and it will never be the case. If 99 fisherman out of a 100 fisherman in a sustainable manner, yet 1 does not, the fishery will eventually collapse. It won’t be the 1 fisherman that collapses the fishery – it will be the 10-50 other fisherman, that see the success of the 1 fisherman, and then copy the 1 fisherman.

    Ludwig von Mises, a famous Austrian economist, supposedly suggested that the question “should this policy be implemented?” not be asked, but rather “if this policy is implemented, will it have the effects you intend”? If patents are eliminated (i.e., the policy you want to implement), what are the effects you intend?

    “Once again, my argument is not founded on consequences, so why do you keep returning to them?”
    Oooooh … you better refresh your Austrian economist credentials. It seems to me that consequences are important (i.e., “will it have the effects you intend.”)

    Being an academic, you obviously aren’t “in it for the money.” However, from my experience, most people are in it for the money. My belief is that whatever effects you intend will be short-lived, at best. Moreover, there will be far more negative consequences to your actions than positive.

    ” 4) no, I haven’t. Id’ suggest though that valuing a company based on IP holdings is as risky as valuing a house based on a future expectation that mansions will be built in one’s neighborhood. Better to see how consumers value a product, and valuing the producer of that product based on that”
    A nice non-answer. It must be getting late for you because that last sentence wasn’t particularly focused.

  • [Avatar for Just visiting]
    Just visiting
    October 8, 2009 12:06 am

    David – you say you love free, unfettered markets. However, for someone who thinks about the topic, I don’t think you realize how fettered and constrained efficient markets are.

    I asked you to provide an example of a free, unfettered market. However, I answered my own question. Your example is China. In China, you can get away with so much more than you can in the U.S. I had this conversation with a friend of mine this afternoon who does business in China and spends a lot of time in China. As a consumer, you can do really well in China – buy some great stuff for a little price. Also, as a manufacturer, you make some really good money. However, on the other hand, the product you buy may be a cheap imitation – but don’t complain to the government, they don’t care.

    As I noted before, property (real or intellectual) is nothing more than a bundle of rights that attaches to something, and the market works best when those rights are enforceable. Thus, a market (which buys/sells property) needs a mechanism for enforcing those rights. As today’s market transactions become more complex (just consider all the different transactions and parities that were involved when I bought my washer and dryer from Best Buy and they hired somebody to deliver it to me). We are talking at least five parties (and likely many more) and similar amount of transactions. In the U.S., I wouldn’t think twice about handing over my credit card and then expecting that I would receive my goods, as promised. However, if the same transaction was attempted in a far less stringent regulatory environment (e.g., China), I would have a much lower expectation that I would receive my goods, as promised.

    At a time when most economic transactions involved just involved two parties and real currency (not that paper kind) or the bartering of goods, then there wasn’t much of a need for “fettering.” A buyer was able to inspect the goods first hand, and there were no warranties. However, the transactions that the “average Joe in the street” becomes involved in every day, without thinking about it, are far more complicated than people could have imagined 150 years ago. What “fettering” provides is the ability of the average Joe to interact with the sophisticated parties of the world. With “fettering,” the average Joe can take part in complicated transactions with the expectation that he won’t be taken advantage of.

    We, as a society, have made the decision that we should trade certain inefficiencies (i.e., fettering) in order to obtain benefits for society as a whole. Does having meat inspectors inspect slaughterhouses “fetter” the meat market? “You betcha” – to quote a wannabe Austrian economist. Does having the FDA regulate drugs “fetter” the pharmaceutical market? “You betcha.” However, most people see the value in those types of fettering. I don’t need to be an expert in drugs or meat to avoid from becoming sick from eating/ingesting either.

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 11:26 pm

    Just Visiting:

    I’m not averse to it, just dismayed that that’s the best you’re capable of…. nonetheless,

    1) there have never been truly free, unfettered markets, nor has there been a perfectly democratic system. Just because ideals have never been achieved is no reason to reject the ideals nor to cease striving for them.

    2) we have heard from entrepreneurs here who have chosen to release their products without enforcing their IP rights. Why they do it? Maybe because they have figured out a way to profit. Once again, my argument is not founded on consequences, so why do you keep returning to them? My objections to IP are founded, as explained at length above, at the inability of governments to efficiently direct or manage markets, and the interference with personal liberty and individual valuation involved in any such attempts.

    3) your criticism of Austrian Economics is interesting, because again you refer to consequences (depleted fishing stocks). This, I would argue, is a clear market failure caused by irrational actors. The result will be collapsed fisheries, which would indeed be sad, and put the fishermen out of work, but it doesn’t indicate any justice in regulation. Governmental attempts to curtail fishing have also failed to sustain fisheries. What we need are more rational fishermen with greater foresight. But again, you have made an argument about consequences we might prefer rather than one attacking the premise that maximal liberty is morally required.

    4) no, I haven’t. Id’ suggest though that valuing a company based on IP holdings is as risky as valuing a house based on a future expectation that mansions will be built in one’s neighborhood. Better to see how consumers value a product, and valuing the producer of that product based on that.

    Finally, my comments about the state were absolutely relevant because I was replying to the myth of the “state of nature” somehow requiring states (and thus their various market regulations) .

    best,
    David

  • [Avatar for Just visiting]
    Just visiting
    October 7, 2009 11:05 pm

    David — this is the internet, get over your aversion to “sarcasm, sniping, and sloganeering.” This blog is about as civil a blog as you will find on the internet.

    You still haven’t answered the following:

    “Give us an example of one of your ‘free, unfettered markets’ so that we can better analyze it. If you want to take on the status quo, you better have some great evidence to support your position.”

    “Regardless, why don’t enlighten us by explain why anybody would invest 6 months to produce a product that he can only sell for $12/per? I can provide that explanation, can you?”

    Can you comment on my criticism on the Austrian school of economics?

    Have you ever talked to a venture capitalist/angel investor about the importance of intellectual property when they decide whether or not to invest in a company?

    BTW – I said “blah, blah, blah, blah, blah” because your comments were not relevant to the topic at hand. Your comments on the state and violence undertaken in the name of the state did not appear, to me, particularly relevant. If you want to use my post as a vehicle to spout some of your general philosophies – be my guest. However, don’t get defensive when I respond.

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 10:54 pm

    just visiting (and everyone else):

    Still cannot resist sniping (David Koepsell says blah blah blah)? Still stuck on consequences? Still slinging around straw men (communism, communism, communism)?

    Raise a new argument or challenge my premises, and we can move on. Otherwise, I’ve addressed everything you just wasted pixels on in spades.

    Really, it’s a bit sad that almost no one here can resist sarcasm, sniping, and sloganeering. Can’t you just engage the ideas, without resorting to that kind of stuff?

    best,
    David

  • [Avatar for Just visiting]
    Just visiting
    October 7, 2009 10:13 pm

    “I honestly believe, as I have expressed many times, that entrepreneurs and business-people of all sorts often take risks without any expectation of profit”

    The problem when you deal with lawyers is that they notice a lot more than the average bloke. The fact that recognize business people **often** take risks means that you implicitly recognize that business people also take risks with the expectation of profit. In fact, I would be willing to wager that the far greater amount of money is spent in the expecation of profit. Successful business people don’t become successful by throwing away their money on project with little to no expecation of profits.

    Certainly, many venture capitalists/angel investors throw away good money all the time. However, when they do hit a winner, they hit big. Keeping with angel investors, you should certainly take the opportunity to talk with these people. Ask this question — “what is the importance of strong intellectual property when you value a company’s business plan?’ I’m sure you’ll be surprised with the answer. I wouldn’t be surprised with the answer, but you and I are working from a different set of base philosophies.

  • [Avatar for Just visiting]
    Just visiting
    October 7, 2009 09:55 pm

    I did a little research on the “Austrian school of economics,” and found a book that stated “[t]he realistic aspect of the Austrian approach is well captured in the words of Friedrich Hayek, who that that ‘The economic problem is a problem of making the best use of what resources we have, and not one of what we should do if the situation were different from what is actually is.'”

    What jumped out at me was the statement “making the best use of what resources we have,” which reflects an economic approach that is popular among some in this country. What I found striking about this statement is that it represents a philosophy that doesn’t care about the future – only the present. Eliminating all patents/copyrights would certainly make best use of what resources we have. However, as a society, we have recognized that resources can be overused. Many of the world’s fisheries have collapsed because of overfishing (i.e., “making the best use of what resources we have”). As such, countries/states have begun to protect fisheries by imposing strict regulations on what can be caught – certainly an evil act in the eye’s of an Austrian-schooled economist, however, correct in my eyes.
    There is not an infinite supply of fish or ideas. If there was, then “making the best use of what resources we have” is not a bad philosophy. However, if your actions, in using the resources, ultimately lead to the substantial reduction of those resources, then I think it is a bad philosophy.

  • [Avatar for Just visiting]
    Just visiting
    October 7, 2009 09:31 pm

    David Koepsell writes “blah, blah, blah, blah, blah.”

    He then writes: “To dispossess someone of their land or moveables requires force, threats of violence, or actual violence, whereas to use another’s expressed ideas requires no violence at all, nor does it deprive you of anything if I re-utter or re-build an expressed idea of yours.”

    Not a good study of human nature, are you? Communism, although an “idealistically” more attractive solution than capitalism, does not reflect reality (i.e., human nature). The downside of communism is that it removes a considerable amount of motivation for people to produce “works” that benefit people other than themselves. A farmer produces enough food to feed 1000 people, and the state comes in and takes 999 people worth of food, and in return, the farmer gets X. Next year, the farmer produces enough food to feed 100 people, and the state comes in and takes 99 people worth of food, and in return, the farmers gets .99*X. Except for altruistic reasons (which motivates some people, but not a whole lot), why would the farmer bust his butt to work hard? Similarly, why should an inventor spend 6 months, 6 weeks, 6 days, or even 6 hours solving a problem when anybody can come in and take that idea away.

    Perhaps solving a particular problem only saves the inventor 30 seconds once a week. As such, the inventor, being a rationale person, wouldn’t spend any significant amount of time solving it and certainly wouldn’t spend 6 months solving it. However, if solving that same problem helped 100 million people also save 30 seconds once a week, then solving that problem makes sense for somebody to spend 6 months solving that problem because the inventor benefits society greatly once that problem is solved.

    One of the aspects of capitalism and relative non-interference by government in business is that the people who are most efficient at certain things (be it services or products) gain market share, attract capital, and thrive. Be in business long enough and you find that somebody are good at creating ideas. Other people are good at taking ideas and making products. Some people are good at marketing. Other people are good at building products. All are necessary. Property rights allow these people to protect their capital, and permit the incredible diversification we now see. Intellectual property is what is needed to protect the “product” of the people who develop the fundamental ideas that drive business.

    What you are advocating is idea anarchy. Works great for everybody in the short run. However, once it happens there no longer is a motivation for somebody to spend more effort to create an idea for what they can get paid by a single person for that idea.

    “I prefer free, unfettered markets for both moral and economic reasons.”

    Give us an example of one of your “free, unfettered markets” so that we can better analyze it. If you want to take on the status quo, you better have some great evidence to support your position. Otherwise, you might as well be pis sing in the wind.

    BTW – I’ve written about patent communism long before encountering this thread. Regardless, why don’t enlighten us by explain why anybody would invest 6 months to produce a product that he can only sell for $12/per? I can provide that explanation, can you?

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 09:20 pm

    correction “nor does it make my arguments” should read “nor does it contradict my arguments”
    apologies.

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 09:18 pm

    300:
    (these comments are almost completely tangential, but then so were the questions”) — I actually wasn’t being sarcastic at all, anywhere…
    I too am from a lower-middle class background and have profited through a state education (if you’d like, you can blame my ideas on that)
    I have also benefited through a system that I think is unjust and immoral… that doesn’t make the system necessary, nor does it make it moral, nor does it make my arguments since they are not consequentialist arguments.

    step back:
    Argue though some may about the justness of real property, that doesn’t contradict any of my arguments about IP.

    Gene: I think I’ve avoided committing misdirection or lies, and have worked through the initial 3 questions. Shall we continue with new ones?

  • [Avatar for step back]
    step back
    October 7, 2009 08:48 pm

    David K,

    I think there are a few Native American tribes who would differ with you about those “natural” property lines around your claimed real estate. As far as they are concerened, a bunch of thugs with superior weaponry swooped in and took the land by means of force and violence. There is notheing “natural” about those abstract boundary lines on your deed of trust. It is all purely a fictional machinery enforced by the state.

  • [Avatar for '300]
    ‘300
    October 7, 2009 07:13 pm

    Mr. Koepsell –

    Whoa! You’re certainly fast on the ole keyboard! I struggled over and posted my comment and you already addressed much of what I wrote! You win!

    “Open Access publications are subsidized by academic institutions…”. If an academic institution received 100% of it’s funding from private (after taxation) donors, that would be one thing. What if the institution derived a percentage of their funds – which then supported the academics’ writings – from US tax payers?

    Put into another scenario: what if I were an independent inventor and I had an idea for a life saving safety device. What if I derived my patent via tax payers’ dollars? Would this be a moral dilemma?

    ”As I said, I’ll be happy to send you a pdf of O of C . In the case of my latest book, I can happily email you the torrent link.” Again; both to Mr. Quinn if you don’t mind. Both a genuinely sweet of you.

    All the best, Sir.

    ‘300

  • [Avatar for '300]
    ‘300
    October 7, 2009 07:01 pm

    Mr. Koepsell –

    “Nice sarcasm.” Thank you for the compliment (whoa! … wait a minute; you’re not being sarcastic with me are you?).

    Being a non-academic, I had to look that meaning up:

    http://en.wikipedia.org/wiki/Sarcasm

    “Sarcasm is a form of humor that uses sharp, cutting remarks or language intended to mock, wound, or subject to contempt or ridicule, generally saying the opposite of what the statement really is.”

    “Hostile, critical comments may be expressed in an ironic way such as saying “don’t work too hard” to a lazy worker. The use of irony introduces an element of humour which may make the criticism seem more polite and less aggressive but understanding the subtlety of this usage requires second-order interpretation of the speaker’s intentions.”

    Hmmm; I guess I’ll have to look up what I just looked up! Too heavy for me!

    Okay. Let me try this again but without the sarcasm.

    You mentioned that patents are immoral – yet – you hold the copyright to your book. It would seem to mean that either you do not see patents and copyrights as equal “moral” IP’s – or – you’ve changed positions since your last reprinting in 2003.

    You have prospered ($1,500) in royalties from your book. The only way you received any money what-so-ever from your book is because you entered into a contract with your publisher. You could enter into that contract with some sense of confidence knowing that you had the legal monopoly on your book via copyright. Copyright, to my understanding, is the life of the artist plus 70 years. That seems to be a fair amount of time to hold a legal monopoly (oops! … sorry … there I go again!).

    It seems unlikely that your publisher would have gone through the expenses of proofing / fact checking / revisions / galley proofs / edits / printing / public relations / advertising / storing / transporting / accounting / taxation preparation and a repeat performance for the soft-cover edition … without some guarantee that you held some IP protection with which to negotiate with.

    Why would the publisher risk all of that knowing that some “free spirit” could snatch an early copy, whisk it off to a foreign land, produce it for pennies-on-the-dollar for all costs listed above, ship it back to the US, and … have it all done before you two knew what happened?

    You wrote: “Moreover, I never wrote it to make money. I am an academic, and books are one ways we communicate ideas that are important to us.” I certainly don’t know what you do for walking around money, but I imagine that when your publisher tossed $1,500 your way, you probably found a good cause to donate it to (dang!).

    What does an academic do? If they do not produce “movables(?) or real estate” (both of which require money generated some where first), how do they earn their living? If it’s teaching or research or writing … should those activities not be freely distributed so that all of humankind may progress more rapidly and unhindered? Why lock them up with IP lasting a lifetime + 70 years?

    You wrote: “If you’re in town, you should come. It’ll be open to the public. You can pose all the questions you’d like and I’ll be happy to discuss IP all you’d like over drinks afterward.” (That’s the sneaky thing about sarcasm … you never really know what the other one means). Thanks for the invite and especially the after-hours invite. I truly would love to take you up on this opportunity. My “lower middle class” upbringing would dictate we pay for our own drinks. Being 5 or 6 thousand miles away – and in debt – I’ll have to pass. Truly; thanks anyway, Sir.

    “Give me an email address, and I’ll gladly scan and send you the pdf to Ontology of Cyberspace once I get back home this weekend.” Red Alert! I’m sensing pay-back for my sarcasms! Ambush! 4 years in the Infantry and I always follow my instincts. Please send same to Mr. Quinn; he has my email address, we’ll both learn much from you, and – he has a large and growing audience who will equally benefit for many years to come.

    I wish you all the best that Life has to offer.

    ‘300

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 06:14 pm

    300:

    To elaborate a little on the nature of academic publishing… books and journal articles are what we are expected to produce as academics, it fulfills a good part of our duties simply to write and publish, as well as teach. For books, we generally go with the publisher that accepts the book (a process that can take years), and often there are no choices at all for us in terms of means of dissemination or licensing schemes. We simply sign a contract because we need a publication (even though we make ultimately no real profit).

    When possible, I always choose “open access” publication for journal articles. Book publishers as of yet do not have this option, but it seems more likely as more and more books move to electronic versions and the costs of production continue to fall. Open Access publications are subsidized by academic institutions, and are valuable because they allow instant dissemination of publications, and thus speedier science.

    As I said, I’ll be happy to send you a pdf of O of C . In the case of my latest book, I can happily email you the torrent link.

    best,
    David

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 05:49 pm

    300:

    nice sarcasm… now, without sarcsam, here are my responses

    As for the royalties, I haven’t seen them in ages. I think I made roughly $1500 off the book in the 9 years since it was published. Publishers make most of the profits from books, not authors unless they sell millions. Moreover, I never wrote it to make money. I am an academic, and books are one ways we communicate ideas that are important to us. If you read the book (or even my comment above), however, I don’t delineate any “moral difference between classes of IP,” as you suggest, but only a moral difference between IP rights and rights to moveables and real estate (please read carefully what I wrote above).

    Re: Cardozo law school, it’s a relatively well-known law school in NYC. I was invited to speak there on Oct 21 at noon, and I figured that I can ask them if they are interested in a debate, though I can make no promises. If you’re in town, you should come. It’ll be open to the public. You can pose all the questions you’d like and I’ll be happy to discuss IP all you’d like over drinks afterward.

    Give me an email address, and I’ll gladly scan and send you the pdf to Ontology of Cyberspace once I get back home this weekend.

    Gene: I honestly believe, as I have expressed many times, that entrepreneurs and business-people of all sorts often take risks without any expectation of profit, and sometimes they do profit anyway, by moving into a market quickly with a product people want. Risk-taking is highly venerated behavior in free markets, and sometimes people win. If you’ll note from the links I gave you earlier, there’s no indication that IP was necessary nor highly influential in fueling the industrial revolution. Why do we think it’s necessary now? The R&D cycles for numerous industries have been sped up substantially thanks to technological advances, so the costs of R&D should also fall, reducing the cost of risks. But as I’ve said many times before, my argument is not utilitarian, so consequences will not dictate my conclusions. Even so, it’s likely that innovation will proceed even without IP, and if it doesn’t happen as quickly, that is ok. We’ll move forward, things will still improve, and progress will not cease.

    best,
    david

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 7, 2009 05:21 pm

    David-

    I did not mean to put words in your mouth.

    Did I read what you wrote correctly when you said that there is no difference between machines and software and neither should be patentable. Do you really believe that machines should not be patentable? What, if anything, do you believe should be patentable? Without the greed motivation I just do not see how innovation happens on any large scale. The government can only fund so much, and academics/professor can only take research so far.

    -Gene

  • [Avatar for '300]
    ‘300
    October 7, 2009 05:18 pm

    Mr. Koepsell,

    It is obvious to me that you are blessed with an exceptional mind. Respect for those of differing opinions is refreshing. And I thank Mr. Quinn for creating and continuing this open forum for those subjects close to all of our hearts.

    That you take the initiative and set-up the venue for this “debate” between Mr. Quinn and your self speaks volumes to me. I plead ignorance as to the Cardozo Law School in NYC; however, now I think highly of this institution. After inviting you to speak/teach/advise pro bono from 18 October to 26 October, now they are willing to cut-out the time, staff, utility costs, security, and salaries to fit this “debate” in. My hat’s off to them (that’s a lot of dollars to give away for a good cause).

    In one of your excellent threads above you mentioned:

    “I make a case against software patents in my book The Ontology of Cyberspace (Open Court 2000) as well.”

    I must confess both ignorance and embarrassment, Sir. I was so moved by your eloquence and weight of historical references that I was immediately compelled to find your book on the ‘net, download it, and ponder your good work.

    Sir; you may wish to sit down. Your book is not “open source”.

    Yes, some ****** capitalist is charging US Dollars for your good work! You might want to click on this obscure website for proof:

    http://www.amazon.com/gp/offer-listing/0812695372/ref=sr_1_olp_1?ie=UTF8&s=books&qid=1254945711&sr=1-1

    Someone is selling your book for $5.17 (“used” – but in good condition, she says).

    After that shock, I went to our friends at Google Books to read your work:

    http://books.google.com/books?id=-HUBSKlokqgC&pg=PP1&dq=the+ontology+of+cyberspace&ei=kfTMSsSqLZCqkASHh7XZBw#v=onepage&q=&f=false

    Sir! On the first page of your book someone’s printed language like: “Copyright” / “All Rights Reserved” / “No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher, Open Court Publishing Company, a division of Carus Publishing Company…”.

    Then it says: “Library of Congress Cataloging-in-Publication Data …”.

    I am confused …

    Copyright?

    Library of Congress?

    I mean, as in … US Government?

    In Googles’ left-nav bar on your books’ page, they display hyperlinks out to:

    Amazon.com – $17.95
    Barnes&Noble.com – $19.95
    Borders – $19.95

    You may wish to call your agent and/or publisher to clear all this up. It seems that someone’s making money off of your “work”. If this came out in 2000, I suspect someone was making some profit here, because it was published again in soft-cover in 2003.

    This could have generated at least a few dollars for someone. I mean, I gather from your threads above that writing comes easy for you, so your 160 page book was probably only a couple of afternoons’ worth of work. I harbor no doubt that you worked on this book purely as a labor of love. But still, it was your work and I think you should be compensated for your work.

    ***

    Am I so far off the mark that I just plain don’t get the difference between “Patents” and “Copyrights”? I understand the differences in terms of Intellectual Property types covered. I just don’t get the moral (your words above) difference between one class of IP and the other. Put another way … why do you say patents are immoral – yet – you enjoy the full protection for your book through the copyright muscle of the US Government?

    How is one not the other?

    If you would be so kind, please educate me.

    Thanks in advance.

    ‘300

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 04:58 pm

    Step Back:

    Yes, I am consistent. As I stated numerous times, my position is not a utilitarian position. Just because I am not be happy with a particular scenario, doesn’t mean I have a right to expect anything else. Nor does it mean I would bargain away my freedoms to ensure anything else. Basic science, and scientists in general, have made great discoveries for ages without any guarantee of recompense, so if your hypothetical inventor feels he must secure from the government some right of profit to save lives, then I’d pity him for his immorality, but understand completely his right to his position. Nonetheless, this doesn’t imply that a system of IP is necessary nor good, it just demonstrates that some people value their personal profit over other things, which they are certainly entitled to do. Nor does it prove that he would not have other means to profit, perhaps by entering into private agreements with others, etc. People do make money from inventions without the necessity of IP, sometimes.

    Now your real property example ignores the argument I have made many times defending real property claims as grounded in brute facts of possession. Those lines that bound your property are not fictitious and they are utterly defensible, and my possession of real property and moveables is exclusive in a sense that possession of ideas, once expressed, are not. Your army might dispossess me of my property, but this would be, in my view, a moral wrong. On the other hand, my use of your expressed ideas causes no violence nor dispossession, and so is not a moral wrong. You have no natural right to the proceeds of their use. Time and again I have pointed out my support of property rights in real estate and moveables, yet you seem to have ignored or failed to understand them. Please go back and read my defenses to real property and moveables, because by posing your scenario you have chosen to ignore my previous defenses of those types of property. I am, as I said, consistent.

    Gene: I didn’t say it proves Austrian economics to be correct, but I said it “illustrates its likely truth”… by recasting my statement, you have tried to put words in my mouth meant to demonstrate that I have oversimplified the situation, or that am a mere ideologue. I have independent reasons to accept Austrian economics, in large part because the central thesis of methodological individualism is, in my view, incontrovertable. What is certain is that the policies that were pursued, being Keynesian in origin, have failed. Don’t forget, it was Reagan’s hero, Milton Friedman, who said “we are all Keynsians now.” What a shame that was. Thank God I’m not.

    We are getting far afield of the central argument, but suffice it to say I believe you have far too much faith in governments’ abilities to govern markets. I have addressed the three questions posed and I think I have done so fairly, honestly, and civilly. Now, are there more or do we wish to continue debating those questions? I’m happy to do whatever suits you.

    best,
    David

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 7, 2009 02:56 pm

    David-

    You say: “The current collapse of the world financial system illustrates the likely truth of Austrian economics quite well. Keynesianism has been wholly discredited by now, given that all attempts at market regulation, direction, control, or manipulation have resulted in such massive failures of valuation at a large scale so that the thesis offered by the Austrians seems now to be proven.”

    REPLY: I think you are severely overstating the case that can legitimately be made, and the reality of what has caused economic collapse. What lead to the massive collapse has absolutely nothing to do with valuation failures and everything to do with pumping money into a system and placing that money into the hands of those who could never afford to repay. What this did was inflate values artificially. It pure and simple was a sellers market driven by cheap, easy and irresponsible money given to those who would only be able to participate long term if values continued to rise. It is in many ways the same dynamic exhibited in ponzi schemes, only this was perpetrated by the government. The government forced banks to lower standards and lend to folks who should never have qualified. Banks were all to willing to participate in the fraud on responsible folks because they were making money. Alan Greenspan repeatedly warned Congress of the impending doom, as did President Bush, John McCain and others. You can easily verify this by visiting YouTube and watching testimony and statements in official proceedings. Barney Frank called these statements fear-mongering and unfair vilification of good companies and good bankers trying to help those less advantaged. Of course, the world blames the Republicans and ignores the truth that it was the democrats at least at the end standing in the way of the obvious reforms necessary to stop disaster.

    To suggest that the economic turmoil we find ourselves in now proves Austrian economics is correct is simply incorrect. This economic downturn has nothing to do with over regulation or de-regulation and everything to do with politicians pandering for votes and bankers being greedy and giving in to political pressure because it was also in their best, short term interest.

    As the US housing market collapsed, and the world allowed speculators at computers to manipulate oil prices all hell broke loose. Truly free markets, which seems to be what you want, means no investment and advancement unless there are other ways to insulate from competition. This was the American experience at the end of the 1800s and into the early 1900s, lead to monopolies that dominated and caused real harm. I think you should really be careful what you wish for.

    Again, if those in Europe want to engage in a fundamental shift and see how it goes I am more than happy to sit back and watch. If it works then we can all adopt these policies. If not, at least we have not destroyed what works, albeit more inefficiently than we might all like.

    -Gene

  • [Avatar for step back]
    step back
    October 7, 2009 02:32 pm

    Well Dave,

    To your credit, at least you are consistent.
    You are totally against any and all governement intervention in the so-called Mises free markets.
    Stated otherwise, if an inventor comes up with a secret recipe for curing all cancers but his idea is easily copiable and hence he won’t release it to the public because he no longer has IP rights secured by the State, you are totally OK with that scenario?
    And if I show up at your house with my gang of well armed thugs (better armed than yours), take over, and there is no govenrment intervention –because after all, what’s the difference between fictitious property lines drawn on a paper map and fictitious IP boundary lines (a.k.a. patent claims) drawn in a patent document– you are totally OK with that too?
    I’m glad we cleared the air on where excatly you stand and we can let all the readers out there in the free market decide for themselves whether any of what you argue makes sense within their subjective views of the world. OK?

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 01:11 pm

    so, recapping:

    Step Back posed the following questions which I have attempted to answer above.

    “1. Question number 1: Does the task of “innovating” include having one or more persons engage in “work”, and if so, why should they not be compensated for their work?” see my comment 8, above

    “2. Are you a communist if you insist on “What’s yours is mine and what’s mine is mine”?” see my comments 12 and 18

    “3. How is the design of a mechanical machine any different than the design of an electronic machine that responds to software signals? If the latter cannot be patented, then why should the former be patentable; or is it the better rule that nothing should be patentable?” see my comment 12, 18, and 23 .. in sum, no, there’s nothing different between machines and software, and neither should be patentable.

    best,
    David

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 12:33 pm

    Step Back,

    I’m not a Randian, actually. She believes in IP. I have answered Gene’s question inasmuch as the answer must clearly be “no” since I argue that all patents are bad ideas, and immoral as well. This is the point I make in my comment above. I make a case against software patents in my book The Ontology of Cyberspace (Open Court 2000) as well. As for free markets and rational choices, you abide by a particular theory of free markets that I and a number of economists also reject. I subscribe to Austrian economics (Menger, Reinach, and Mises are some influences on my thinking) and they understand that valuing is wholly subjective, and all attempts by states to manipulate markets result in inefficiencies. The current collapse of the world financial system illustrates the likely truth of Austrian economics quite well. Keynesianism has been wholly discredited by now, given that all attempts at market regulation, direction, control, or manipulation have resulted in such massive failures of valuation at a large scale so that the thesis offered by the Austrians seems now to be proven. The Wikipedia article on the Austrian School notes this point, you can read a bit about it there.

    best,
    David

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 7, 2009 12:13 pm

    For what it is worth, I would like to point out that David Koepsell is not (in my opinion) the same as other anti-patent folks. I know this gets very heated, and I am as responsible if not more responsible than anyone. Having said that, I do think it is worthwhile to engage Koepsell and while I disagree with him on a lot of issues and think he is misguided (grin), he does at least insert facts and reality into the discussion. This may not be evident because of how this discussion has proceeded, but he does have a point of view he can support with a historical viewpoint. I think he is wrong, but we discuss things via e-mail and I respect him.

    I guess what I am saying is perhaps we should take a step back for a minute and try and re-engage Koepsell assuming that he is not like the many other anti-patent folks that have worn us down with their rhetoric, insults and superiority complex.

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 10:07 am

    Truth,

    Did you want to contribute something to the discussion? Is that all you’ve got?

    I assume you meant “hear” … so let’s hear something having to do with the meat of the arguments, then.

    best,
    David

  • [Avatar for Truth in Advertising]
    Truth in Advertising
    October 7, 2009 06:32 am

    David,

    You are calling other’s attempts clumsy?

    You are still wearing clown shoes on the dance floor of Patent Law. (yes, bread – I owe you).

    Now let’s here another witless but agile(?) remark about my posting under a pseudnym that has nothing to do with the meat of the arguments.

  • [Avatar for step back]
    step back
    October 7, 2009 05:38 am

    David,

    Congratulations.
    At comment 18, you have fulfilled Gene’s prediction about “Misdirection”

    The debate was supposed to have been about whether it is good for a modern society to allow and even encourage the patenting of this stuff referred to as “software”.

    But your personal goal, obviously, is to espouse your self-contradicting beliefs in anarchy (or in Ayn Rand style extreme objectivism –if that is your shtick).

    Why are your beliefs self contradicting?
    That one is easy to answer my friend. Because you accused Just Visiting of being brain-washed. Just Visiting strikes me as being a reasonable person. If indeed one reasonable person can be brain-washed, then we all can be brain-washed and probably we all are brain-washed thanks to the efficiencies of the market. And if indeed we are all brain-washed, then there can be no “free market” in which reasonable persons make rational choices. And thus all your rantings about ‘free markets’ and your love for them are wiped out by your admission that people can be brain-washed. In other words, yours is a self-contradicting argument.
    But then, like you, I have now digressed from the discussion that Gene was trying to conduct here in the first place in a civil manner: Is it good for a modern industrialized society to allow and even encourage the patenting of this stuff referred to as “software”?

  • [Avatar for David Koepsell]
    David Koepsell
    October 7, 2009 01:07 am

    Just Visiting,

    You have parroted the myth of the “state of nature,” very good. But it’s a myth. The state is the most likely to commit violence, not large corporations (which are also a legal artifact I would like to see disappear), and not big strong individuals. Yours is a commonly accepted myth, but there is no support for it. Our mutual friend history has revealed that much more violence has been undertaken in the name of the state. The legal artifact we call eminent domain, by which the state takes properties from private land owners, is much more offensive and prevalent than any private battles over land. You have been brainwashed by the state into thinking these things, and that makes you a good citizen, but not an objective thinker. Since the dawn of history, millions of people have died in the name of states and sovereigns. I am suggesting that this is wrong.

    As well, there is also a real difference between what one does with your expressed ideas and what one does with your moveables and land. To dispossess someone of their land or moveables requires force, threats of violence, or actual violence, whereas to use another’s expressed ideas requires no violence at all, nor does it deprive you of anything if I re-utter or re-build an expressed idea of yours. These differences are real, and are why states instituted IP laws to begin with (gene recognizes these differences, he admitted in an earlier debate that IP laws protected no natural rights), but we are now beginning to see that these market manipulations may not be necessary for innovation to proceed, and they may hinder innovation (see my links in my first post).

    Anyway, your initial attempts to cast my point of view as “communism” were clumsy and ill-considered, but clearly an attempt to create an easy strawman so you wouldn’t have to confront the economic, moral, and political arguments. Your new attempt at mere insult is similarly clumsy, and doesn’t make an argument at all “If your love for free markets/capitalism is what drives your hatred for patents, then you either don’t know enough about capitalism or enough about patents. Personally, I think they go hand-in-hand”…

    Let me repeat, I love free markets, If you think modern capitalism has anything to do with free markets, then you haven’t been paying attention. I suppose you think China has a capitalist economy? They have a market economy, but they also rely upon state manipulation of those markets to even stronger degrees. Patents are a form of state market manipulation, and I reject it as a form of state-capitalism. I prefer free, unfettered markets for both moral and economic reasons.

  • [Avatar for Just visiting]
    Just visiting
    October 6, 2009 05:11 pm

    “1) Open Source Software (or Free Software) is not a new fad. Free software development, in its current form of “copyleft” licensing, has been going on for over 25 years. It has crossed at least one, if not two, generational boundaries. In less formal ways, people have been sharing source code and not claiming their copyrights on code for twice that time. There’s pretty good evidence at this point that it’s sustainable in some form”

    … and communism has been going in Cuba for about twice that long. Are there really any doubts about the long-term future of communism in Cuba?

    “Much Open Source software is written for fun. Programmers like programming and do it as a hobby.”
    I agree. However, the smart ones (i.e., the ones with the most ideas) will ultimately realize that the source code they gave away could have been worth hundreds of thousands or even more. Pro players in the major sports all talk about playing for the “love of the game.” However, in the end, it is better to be paid for what you are doing than not be. Plenty of people have turned hobbies into businesses. Although there are plenty of “purist” programmers out there creating Open Source software for free, there are plenty paying the bills doing the same thing.

    Don’t get me wrong, I like free software and all sorts of the free things (like e-mail) that have resulted based upon the advent of the internet. However, even serious programming time is needed to develop any of these things, somebody is going to want to get paid. You wouldn’t want to spend 2000 hours to develop the next greatest internet app and then give it away for free?

  • [Avatar for Just visiting]
    Just visiting
    October 6, 2009 05:01 pm

    “Shouldn’t capitalism embrace free markets? My love for free markets is what drives me to hate patents, since they skew markets, are a state-granted privilege accorded for no better reason than beating someone else to filing something with bureaucrats, and inhibit free, unfettered competition, which is what capitalism ought to encourage rather than hinder.”

    The same thing can be said about the guy who bought the piece of farmland that is now a piece of a prime real estate next to a busy on/off-ramp or the guy who developed that farmland into a shopping mall. The state grants these people the privilege to do what they want with their property and to keep other people off their property. No matter how much competition would be furthered by my store in the shopping mall, the state permits the owner of the mall to decide whether or not I can be in the mall or not.

    Property 101 …. property is nothing more than bundle of rights. If you have rights to something, it also means that you have the ability to prevent someone from doing something with your property (i.e., “hinder,” as you put it). It doesn’t matter whether it is real property or intellectual property.

    If you want to take your “capitalism argument” to the nth degree, why don’t we just let the all powerful take whatever property they want for whatever purpose. Might = right. Then, if my militia is bigger than the mall guy’s militia, I get to put my store in the mall. Similarly, if the company with a billion dollar budget wants to build the small’s guys (could have been) patented product, then let the big company as well. The consumer wins in the end, right?????

    The answer to that question is … No!! The mall guy won’t develop his property if he thinks it will be taken away. Similarly, the small inventor (or even mid-size inventor or big-inventor) won’t spend the R&D money when any Joe Copier in the US (or Chen from China) can make it for 25% of the price. Why bother with the investment?

    Capitalism relies upon the principal that if you create value, you get to keep it. Otherwise, capital won’t flow to the good ideas creating value since those good ideas can be taken away, and the return on investment for that capital is eliminated and/or risk is increased for those providing the capital. An increase in risk means more return on capital is demanded, which makes it harder for people with good ideas, and not capital, to borrow money and develop those good ideas into profitable products/services.

    If your love for free markets/capitalism is what drives your hatred for patents, then you either don’t know enough about capitalism or enough about patents. Personally, I think they go hand-in-hand.

  • [Avatar for Adam]
    Adam
    October 6, 2009 04:15 pm

    step back,

    “what you really are talking about is forcing the other guy to involuntarily give away the fruits of his labor for free. That is called involuntary servitude.”

    I don’t think that’s a fair analogy. It’s not involuntary, and it’s not servitude. First, no one is suggesting that all work has to be made public. If you want to keep it to yourself, that’s your right. Second, no one is suggesting that you can’t sell things you create, so there’s no free gift involved. Third, the work isn’t servitude, because it’s not required in the first place. Just don’t do the work and the issue doesn’t even come into play.

    I’m also not sure where the “gratuitous gifts” issue comes into play. I’m not a lawyer, so I don’t really know what that means. Are you trying to imply that if you can’t patent everything you create, it’s somehow a gift? Does that mean if I make a chair, or write a book, or sing a song, but I can’t patent that work, then I’m being robbed? How does that relate to socialism or racial oppression?

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 6, 2009 03:50 pm

    David-

    I know you are always civil, and I appreciate that. I also appreciate you putting up with my passion.

    Perhaps it would be better to refer to this not as a “debate” but more of a discussion of opposing views. I suspect you and I could calmly set forth our positions and even acknowledge where the other raises good points and have it be a frank discussion that airs competing ideas.

    -Gene

  • [Avatar for Adam]
    Adam
    October 6, 2009 03:27 pm

    Just visiting, that’s an interesting perspective. In some ways, you might be right. But I think you miss a few things in your characterization of Open Source software development.

    1) Open Source Software (or Free Software) is not a new fad. Free software development, in its current form of “copyleft” licensing, has been going on for over 25 years. It has crossed at least one, if not two, generational boundaries. In less formal ways, people have been sharing source code and not claiming their copyrights on code for twice that time. There’s pretty good evidence at this point that it’s sustainable in some form.

    2) Much Open Source software is written for fun. Programmers like programming and do it as a hobby. You might be interested in this essay about doing work as entertainment: http://www.shirky.com/herecomeseverybody/2008/04/looking-for-the-mouse.html

    3) Much Open Source software is written for very selfish reasons, but not monetary ones. People usually don’t sit down to write Open Source software to contribute to the noble ideals of the movement. Rather, they want to have piece of software for their own uses, so they write it. Since it doesn’t cost them anything extra to give it to others, and there’s a chance someone will help them fix bugs and add features, they release the source. In the parlance of the field, this is called the “Scratch your own itch” phenomenon. This was certainly the reason for the initial development of Linux, that poster child of the Open Source movement.

  • [Avatar for David Koepsell]
    David Koepsell
    October 6, 2009 03:22 pm

    Why should the government get into the business of encouraging innovation at all? The subsidies they grant by way of temporary monopoly has nothing to do with market forces… I’ll re-post here what I’ve said before, pointing out that what you favor is closer to communism or socialism than what I favor:

    “How are patents a free market device? Shouldn’t capitalism embrace free markets? My love for free markets is what drives me to hate patents, since they skew markets, are a state-granted privilege accorded for no better reason than beating someone else to filing something with bureaucrats, and inhibit free, unfettered competition, which is what capitalism ought to encourage rather than hinder.

    Patents are more socialist than capitalist. They get the state into the business of marketplaces, of determining what technologies ought to succeed or fail, of boosting patented tech over non-patented tech, rather than encouraging the market to select for the best products and drive pricing. It’s a lot closer to five-year plans than what I envision, which is a market without any state involvement at all.”

    Gene has admitted in the past that there is no natural right to IP, but rather it is a creation of the positive law of governments. Thus, what is the moral obligation of the state to get involved, much less the practical problems associated with states involving themselves with markets in the first place? States have terrible records in directing market forces because they do poorly at predicting individual valuation by consumers.

    best,
    David

  • [Avatar for step back]
    step back
    October 6, 2009 02:48 pm

    Adam,

    At comment number 9, you argue:

    However, it’s silly to suggest that every person has a right to be paid for every action that you can call work.

    In hindsight it should be apparent that this sentence could have been applied by a racist to so-called “work” done by a person whose skin happens to be colored dark or yellow or … well you fill in here your selectied group of people who do not deserve in your opinion to be compensated (let me suggest it is solo inventors who happen to invent in or near the “software” side of things)

    At your comment number 6, there is exhibited a clear misunderstanding of what is referred to in the law as “gratuitous gifts”. While the 13th Amendment of the US Constitutuion has a prohibition gainst involuntary servitude (a.k.a. slavery), there is nothing in the law that prohibits free thinking individuals from voluntarily giving away there things or services for free; and it is certainly noble when members of our society do so out of pure altruism. I certainly applaud members of the open source movement who have dedicated thousands of hours of their time to develop software that they give away for free. As to you (finally) washing the dishes in your sink, that is hardly altruisitic. Your house will be a mess if you did not.

    However, what you really are talking about is forcing the other guy to involuntarily give away the fruits of his labor for free. That is called involuntary servitude.

  • [Avatar for Just visiting]
    Just visiting
    October 6, 2009 01:24 pm

    I’ve referred to the whole “who will pay for innovation” answer by the “other side” as patent communism. One of the underlying beliefs of communists is that everybody will work towards a common goal and that the rewards, upon achieving that goal, will be divided equally.

    Patent communists (including a distinct sub-species named the “open source movement”) believe people will continue to develop these wonderful innovations out of the goodness of their hearts and/or perhaps they believe in the movement and will do their part to keep the movement alive. Communism can work — in the short term. However, the smart ones will eventually realize that the maximum gain (i.e., the difference between work expended or rewarded obtained) will be achieved by doing the least amount of work since everybody gets the same reward (i.e., the free rider program). Ultimately, as more people discover that it pays to do less work, the system falls apart.

    Turning to the open source subspecies, they are kind of like the animals in George Orwell’s Animal Farm. The pigs are represented by the likes of Red Hat, who have learned how to game the system to their own end. Red Hat extols the open source movement, not because they have some deep-seated belief that products/services should be free. Instead, Red Hat extols the Open Source because it is the lynchpin to its business model. Red Hat simply takes pre-existing software and packages it for individual user’s needs. Red Hat’s success is reliant upon Open Source software being available and that companies will continue to publish source code under Open Source licensing.

    The software developers will publish their source code if they believe that doing so will lead to the same type of software “installation,” “maintenance,” “consulting” opportunities for the software developers. However, this type of model is akin to computer printer manufacturers selling printers for losses on the hope that they will make it up on selling the ink. What ultimately occurred is that the ink manufacturers, not coupled with the overhead of the printer manufacturers, undercut the prices for ink. Eventually, printer companies were forced to find intellectual property means to prevent ink companies from taking their business. The same thing will occur with the major software developers who are licensing under Open Source licensing. If they cannot pay the bills because they cannot compete with integrators such as Red Hat, they will pull the plug on Open Source.

    Patent communism, like economic communism, may seem like a good concept to idealists. However, we do not live in an ideal world. In the real world, people require greater compensation for greater contributions and greater incurred risks. Just like economic communism failed to spur real economic growth, my opinion is that patent communism will fail to spur real innovation.

  • [Avatar for Adam]
    Adam
    October 6, 2009 11:48 am

    Gene, I think you’re asking the right questions here and, when it comes to the answers, the devil is in the details. I can invent certain kinds of things for free, but not others. And I’ll probably be more likely to do it if I don’t have to do the inventing for free. In any case, I’ll probably need some kind of incentive for my efforts, whether monetary or otherwise. It’s reasonable (and in my opinion, highly desirable) for debate to exist around the issues of how to best create incentives to invent.

    However, it’s silly to suggest that every person has a right to be paid for every action that you can call work.

  • [Avatar for David Koepsell]
    David Koepsell
    October 6, 2009 11:46 am

    Regarding the “cost” of innovation: Step Back’s point is excellent. Not only do we subsidize our own work often, but not all of that work necessarily becomes profitable. Indeed, even with a patent, there’s no guarantee of profits, as you well know. Business necessarily involves risk, and lots of entrepreneurs lose everything. The lucky ones break even. Why should we expect recompense for all our work? As long as the work we do isn’t forced, there is no right to recover a dime from any labor of any kind unless there is some form of labor contract with another person, and then we are only owed the market value of our labor.

    And Gene, I will ask the folks at Cardozo law school if they are interested in hosting a debate that week, titled: Patents: are they necessary for innovation? And you know, I always try to be civil.

    best,
    David

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 6, 2009 11:11 am

    Adam-

    While I disagree with you a lot, I would not expect you to answer with insults. But if you look at some of the related posts recently you will see why I said that. A good many anti-patent folks trade in insults without substance.

    With respect to point 1, I think what stepback was getting at was innovating takes time and work. You can do your dishes for free, but can you invent for free? There is always a cost, and who pays that cost where there is no reasonable expectation of recouping?

    -Gene

  • [Avatar for Adam]
    Adam
    October 6, 2009 11:00 am

    When did this blog turn into All My Children? This post reads like Soap Opera Weekly.

    step back, I’ll answer your questions in a straightforward way and without insults. Apparently this will shock Gene.

    1) Innovating usually involves work, but it doesn’t necessarily. New things can certainly be discovered accidentally. If it does involve work, that doesn’t necessarily mean people must get paid for it. Work gets done every day that isn’t compensated for with money. Just this morning I washed my breakfast dishes and didn’t get a dime for my efforts.

    2) Maybe, but not necessarily. You might also be a fascist leader, a socialist, a member of royalty, a feudalist, or just a capitalist who likes stealing.

    3) I don’t know of a significant difference between the design of a mechanical machine and of a computer circuit or CPU. If you think one should be patentable, you should probably think the other should be as well. Unless you think the design of a thing should not be the only consideration as to whether or not something should be patentable. Of course, software is a completely different matter, but since it’s not in your question, I won’t address it.

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 6, 2009 10:03 am

    David-

    I am largely free that week and could get away for a debate if it can be arranged. Later in the week is better than earlier in the week, but I can be flexible (at least as of right now).

    Thanks for the links.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 6, 2009 10:01 am

    Step Back-

    I would love to hear folks try and answer these questions, but I don’t suspect we will get any takers, not at least with substantive answers. I suspect if anyone does tackle these questions it will be with insults and demonizing.

    -Gene

  • [Avatar for step back]
    step back
    October 6, 2009 06:22 am

    1. Question number 1: Does the task of “innovating” include having one or more persons engage in “work”, and if so, why should they not be compensated for their work?

    2. Are you a communist if you insist on “What’s yours is mine and what’s mine is mine”?

    3. How is the design of a mechanical machine any different than the design of an electronic machine that responds to software signals? If the latter cannot be patented, then why should the former be patentable; or is it the better rule that nothing should be patentable?

  • [Avatar for Truth in Advertising]
    Truth in Advertising
    October 6, 2009 06:05 am

    “I’m a practicing patent lawyer, BTW; my motive is only truth and justice”

    Posted by: Stephan Kinsella at February 25, 2008 8:48 AM
    http://www.patenthawk.com/blog/2008/02/no_surprise.html

  • [Avatar for David Koepsell]
    David Koepsell
    October 6, 2009 05:17 am

    Hi Gene,

    I will be in NYC between Oct 18 and 26, giving a talk at Cardozo law school, among other venues. A face-to-face debate would be most preferable. Perhaps we can put one together? It’s the last time I’ll be in the US for a while.

    By the way, since you like history, here’s a paper offering an interesting analysis of the effect of patents on the speed of the industrial revolution: http://www.rufuspollock.org/economics/papers/patents_and_ir.html
    (they conclude, based on historical evidence, that effect was minimal at best, neither speeding it up nor slowing it down, since very few patents were sought or granted). An interesting study involving a simulation is also here: http://www.readwriteweb.com/archives/study_says_patents_hinder_innovation.php

    best,
    David