A Response to Claims of Patent Propaganda and a Plea for Interpretive Charity in IP Debate

By Daniel Takash
October 24, 2019

“There is no reason to think that simply because the Wright Brothers invented the first functional airplane, they also did not abuse their patents to the detriment of innovation in aviation.”

Following a panel I spoke on with my colleagues Charles Duan of the R Street Institute, Abby Rives of Engine, and Ian Wallace from New America, Lydia Malone wrote a piece critical of our comments on this site. I thank IPWatchdog for the opportunity to respond.

The Claim We are Anti-Patent is Patently False

https://depositphotos.com/13472069/stock-photo-podium-on-stage.htmlAppreciating that Ms. Malone characterizes her piece as “one view” of the above-referenced panel, I wish to offer another, hopefully more complete view of last week’s discussion. For example, one feature of Tuesday’s panel is the panel’s discussion of how high-quality patents are an important, valuable, and in some cases necessary element of the innovation ecosystem. I respectfully disagree with Ms. Malone’s assertion that the panel “concluded that we should abolish patents and begin centrally planning the subsidization of research and development for all innovation, all in the interests of their ‘free market.’”

Why don’t I oppose patenting at large? First, there are tremendous benefits from the disclosure requirements associated with patenting. This is not mutually exclusive with making discoveries and inventions from government-financed research available to all, but the disclosure requirement is the clearest benefit from our current system. Second, while government may be able to direct its funding to specific needs, nobody knows where the next great idea will come from. When more direct forms of government support aren’t available for a nonetheless valuable invention, the patent system is a good way to make up for the missing subsidy.

But rather than central planning, my support for greater financing of STEM education, academic, and applied research is a Hayekian one. In some cases, the government may need a specific invention and offer a prize for its invention—granting it only to the party that is able to produce it, making it a customer and not a regulator. In other cases, the funding should be broad and not geared towards any one industry or party, in line with Hayek’s view that rules should be general and abstract. Such is the nature of broad-based funding for research and education.

My general framing of the issue is similar to that of free-market champion Milton Friedman, who said in his 1962 masterpiece Capitalism and Freedom, “[t]he specific conditions attached to patents and copyrights––for example, the grant of patent protection for seventeen years rather than some other period––are not a matter of principle. They are matters of expediency to be determined by practical considerations.” Friedman still defines patents and copyrights as a “governmentally created monopoly” albeit one that is “very different” from other more egregious examples of government-created monopolies, such as taxi medallions.

Patents are Subsidies, but Subsidies Aren’t Necessarily Central Planning

The 30,000-foot-view I offered on patents is that they are not property, but instead a regulatory subsidy. My colleague Brink Lindsey and I give this claim a thorough treatment in our paper “Why Intellectual Property is a Misnomer,” and former Solicitor General Paul Clement recently authored a paper with a similar thesis. I recommend reading both papers in full, but I’ll briefly restate some of our arguments here. First, ownership in the physical world and ownership in ideal objects are two fundamentally different things. Physical property is rivalrous (use by one prevents the use by another), while an infinite number of people can use a design for a widget at the same time. Further, there is no limiting principle for patents–why don’t all original inventions and discoveries deserve patent protection? Also, physical property can remain private indefinitely, but allowing an indefinite right to an invention would be absurd—well beyond even Ayn Rand’s ideal intellectual property regime.

What’s more, intellectual property poses a threat to traditional property rights. I may, through Lockean appropriation or voluntary exchange, acquire all of the parts necessary to create a widget. But the moment I take those parts and put them together into a patented design, the sum of my parts becomes someone else’s whole.

Malone’s claim that I, or any of my colleagues, are in favor of “central planning” is simply wrong. Read virtually any of my work, and you will see that I believe regulations designed in a non-Hayekian fashion (i.e. to produce specific results rather than as general, abstract rules) are detrimental to society and individual liberty. Patents are a regulatory subsidy in the form of a transferable, exclusive right.

Why is this the case? “The justification for the patent system,” wrote Joan Robinson when defining “the paradox of patents,” is to “slow[] down the diffusion of technological progress [to] ensure[] there will be more progress to diffuse.” Part of this initial slowing down is the ability of patent holders to charge monopoly prices to recoup the upfront cost of their investments. But, as a right secured by the government and not the individual (unlike physical property), patents are creatures of government intervention, just like a National Institutes of Health (NIH) grant.

For any given invention, a transfer payment in exchange for an unpatentable invention is strictly preferable to a patent. Why? Suppose the monopoly price for a patented invention is 10% above the free-market price, with that extra 10% charged going to the inventor. Now suppose we had a free market in that invention, but the government charged a 10% tax and gave the revenue to the initial inventor. Aside from the mechanics of the different policies, they are functionally identical–government is intervening in a way that redistributes wealth with the goal of increasing innovation.

The advantage of broader-based funding for research and education, prizes, etc. is that they are financed through our progressive tax system, not regressive monopoly pricing paid by consumers. Both involve government intervention, but the former is a more progressive and less distortive method of funding the intervention.

The ability of government to put resources to their most efficient use is, of course, suspect, which is why patents are an essential part of the mix to promote innovation (see the first section of this article). But, just as government can (and often does) spend far more than is necessary on a given project, the market value of a patent can also be unrelated to the social value of a given incentive to innovate. Take the example of software patents, where overly broad claims can easily hinder innovation at great cost to society, despite the value of the intellectual effort that went into the development of the patent being relatively low.

The Wrongs of the Wright Brothers

Malone’s objection to my characterization of the Wright Brothers as patent trolls is unresponsive. Her claim would give the impression that I deny that the Wright Brothers were essential to innovation in the aerospace industry, as “Any fifth-grader can tell you that the Wright brothers invented the airplane. It’s absurd to claim that two of the most significant inventors in all of history were just ‘patent trolls.’”

It would be absurd to claim that they are just patent trolls, which is why I didn’t. Did they invent the first functional aircraft? Yes. But following the issuance of their 1906 patent, which covered their specific solution (called “wing warping”) to the problem of lateral stability, they sued rivals with alternative solutions to the problem. I also never claimed (as Malone states) that the Wright Brothers’ patent was a bad patent (far from it!). Rather, they abused their patents beyond the scope of what their legal right to exclude granted.

This argument is based on the fact that merely because someone did something good, that doesn’t mean they didn’t also do something bad. There is no reason to think that simply because the Wright Brothers invented the first functional airplane, they also did not abuse their patents to the detriment of innovation in aviation.

Despite H.L. Mencken’s brilliant use of the English language to tackle demagogues and snake oil salesmen, and his advocacy for the admission of Jewish refugees that the Roosevelt administration turned away, he was undoubtedly an anti-Semite. Thomas Edison was a brilliant inventor and businessman, yet he waged an effective PR campaign against Nikola Tesla’s alternating current electricity, a threat to the royalties Edison received from his patents related to direct current electricity. Today, AC electricity is virtually everywhere. Werner von Braun made rockets go up, but where those rockets came down wasn’t his department, to borrow from Tom Lehrer. Much like how most of us can walk and chew gum at the same time, people who have done great things to advance human society can do bad things as well.

What is excluded from this piece is the context of my argument: due to the Wright Brothers’ patent war and the subsequent chilling of innovation, American aircraft were technically inferior to their European counterparts in WWI, costing American lives in the conflict. Also excluded was my argument about Cipro, the anthrax treatment patented by Bayer. Following 9/11, there was an obvious need to accumulate an anthrax vaccine, but it was only after significant pressure from the Bush Administration that Bayer agreed to lower the price. These forms of war profiteering put American lives and national security at risk.

Parting Thoughts on Cheap Shots

In closing, I would like to point out that I am frequently surprised that in the landscape of intellectual property, perhaps the wonkiest topic in public policy imaginable, there exists such rancor and hostility in dealing with intellectual opponents. We should all do our best to live by Antonin Scalia’s maxim to “attack arguments, not people.”

Any reasonable or decent person should welcome good-faith criticism of their arguments and offer the same to their intellectual opponents. But one cannot casually throw around words like “propaganda” and “disinformation,” implying dishonesty on the part of myself or my fellow panelists without serious evidence as to our intentions or integrity, rather than the shortcomings of our arguments themselves. I have no reason to doubt the sincerity or honesty of Malone, other contributors to IPWatchdog, or any of those on the opposing side of this issue and wouldn’t use such language to characterize their arguments. I ask the same courtesy in return.

Image Source: Deposit Photos
Image ID: 13472069
Copyright: jamesgroup 

The Author

Daniel Takash

Daniel Takash is the Regulatory Policy Fellow at the Niskanen Center’s Captured Economy Project.

For more information or to contact Daniel, please visit capturedeconomy.com.

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

Discuss this

There are currently 30 Comments comments. Join the discussion.

  1. Anon October 24, 2019 8:45 am

    That’s a nicely written (but clearly erroneous) reply.

    I am currently traveling, so a more detailed reply may need to wait until the weekend, but several of the errors in the reply post by Mr. Takash can readily be seen in the (non-rancorous) comments in the prior thread by the likes of those that have studied and written extensively about the Wright Brothers.

    I would also add a quick note that the academic view of “patents as monopolies is errant at the start and does not properly recognize the nature of the patent right as a negative property right, and one that simply does not guarantee a market-dominance position (there are plenty of “high quality” patents that exist for items for which the market itself has decided otherwise to emphasize this point). Further, the rather “sloppy” use of “high-quality” appears to be a rather circular or self-serving notion that inserts the very item of subjectivity that simply cannot be known a priori or at the time of filing for a patent. “Picking winners” (or designating Quality) years after a patent application has been filed and a market MAY develop is not an inte11ectually honest approach.

  2. MD Hoyle October 24, 2019 9:28 am

    This has to be the most “wonkiest” article ever written on IPWATCHDOG. It is totally based without one sliver of fact, or knowledge on the subject. If he is so anti-patent, try creating a startup from nothing. It would be a wonderful experience to be a fly on the wall when he goes to “attempt” to secure funding when he has no patents or applications to protect his new company. Or better yet, try and protect his business when it actually begins to succeed.

    Simply put, unless you have “working knowledge” of which you speak, it is best to remain silent, listen and learn.

  3. BP October 24, 2019 10:22 am

    “When more direct forms of government support aren’t available for a nonetheless valuable invention, the patent system is a good way to make up for the missing subsidy.”

    When government decision making is dictated by lobbyists, campaign contributions, and the revolving door, for those without large pots of money and influence, the patent system is what’s left.

    The USPTO cannot be properly characterized as a taxpayer subsidized system. Indeed, hasn’t congress been known to steal from the USPTO ($ that include fees paid by independent inventors)? Is that a position supported by R Street?

    The US has seen the reign of illegal monopolies in times past. Why should today’s illegal monopolies be granted favors on the backs of taxpayers? Have you looked at their employment practices (ageism, sexism, lack of diversity)? Revisit Uber’s discrimination of women and how employees were subject to arbitration. Is that the world R Street wants? Where the illegal monopolies control wages through collusion, control secrecy/future employment through NDAs/non-competes, and control immigration as a means to depress wages?

    R Street likes the “disclosure” of the ideas/innovations of independent inventors because its clients can then take, while under the AIA, making threats to challenge or actually challenging (serially) any patent that may issue (at great cost and time to the independent inventor).

    As to the drive for STEM, that’s simply another R Street client-driven position that demonstrates an extreme lack of understanding of what is a society. R Street wants online education, STEM only, to increase supply to suppress wages, while its clients control higher education in an online education environment, accompanied by huge government subsidies. Apple is a good example, “Apple Distinguished Educator” is nothing other than a brand representative on campus to influence where/how student grants/loans and taxpayer direct/indirect dollars are spent. When a campus is in the ED TX, Apple vacates, leaving the students to their own devices to find service for the products (some of which are subsidized by taxpayers). Those ADEs are the “test cases” for content creation to be owned by Apple and sold through an app store. The burden Apple places on universities and students today is substantial. I say that knowing that I benefited from Apple, in 1984, I started graduate school with an Apple II that I modified to be a chemical process controller. Where’s the parallel today? Can an iPad do that? Better off with a Raspberry Pi? But a Raspberry Pi just doesn’t scale commercially (can you image an illegal Raspberry Pi monopoly?).

    Thank you for posting, R Street is entitled to do as it does, which is understandable given, in the US, the current state of the law, illegal monopolies/lack of anti-trust action, and lack of ethics.

    Maybe a comparison of what R Street wants for its handlers and what is going on in the EU would be helpful/informative, particularly as to how the EU is handling (i) privacy and (ii) anti-trust, the latter of which is inherently part of patent law.

    But, I’m sure R Street is anti-EU because the EU has been harsh on the illegal monopolies.

  4. concerned October 24, 2019 12:04 pm

    MD Hoyle@2:

    “It would be a wonderful experience to be a fly on the wall when he goes to “attempt” to secure funding when he has no patents or applications to protect his new company.”

    I have been asked more than once “what is the status of my patent?” I am sure those questions were not rhetorical based on who was doing the asking.

    From the Article:

    “What is excluded from this piece is the context of my argument: due to the Wright Brothers’ patent war and the subsequent chilling of innovation, American aircraft were technically inferior to their European counterparts in WWI, costing American lives in the conflict. Also excluded was my argument about Cipro, the anthrax treatment patented by Bayer. Following 9/11, there was an obvious need to accumulate an anthrax vaccine, but it was only after significant pressure from the Bush Administration that Bayer agreed to lower the price. These forms of war profiteering put American lives and national security at risk.”

    The preceding statement of American lives were at risk seems in direct conflict with 28 U.S.C. §1498. The government has the right to steal or infringe patents, but must fairly compensated.

  5. Jam October 24, 2019 12:43 pm

    “There is no reason to think that simply because the Wright Brothers invented the first functional airplane, they also did not abuse their patents to the detriment of innovation in aviation.”

    Similarly: there is no reason to think that simply because there are those that say they want “higher quality” patents, that doing so is not also an attempt to destroy the patent system by raising the bar so high as to preclude inventors from any rights to their ideas to the detriment of American innovation.

  6. angry dude October 24, 2019 1:09 pm

    What a bunch of bs
    Where did this dude come from ?

  7. Curious October 24, 2019 2:03 pm

    The 30,000-foot-view I offered on patents is that they are not property, but instead a regulatory subsidy.
    Your anti-patent bias is evident from the language you use. For example, your use of “regulatory subsidy” implies that patents are little more than a giveaway from the government. The intent of this language is to inflame those who dislike government subsidies in all forms. We aren’t stupid.

    I found this bio for Mr. Takash:
    Prior to joining Niskanen in 2018, he was a policy analyst for Reason Foundation’s Pension Integrity Project, where he worked on issues related to public employee pension and retirement benefit reforms. His work has been published in The Hill, The Baltimore Sun, and watchdog.org. He has co-authored reports on Connecticut, Lincoln, Omaha, and Austin’s public employee pension systems. He graduated from Johns Hopkins University with a B.S. in Applied Mathematics & Statistics and Political Science.
    When I see a background like this, I ask myself, “what does he know about anything to do with patent law?” Forget the nitty-gritty details about patent law (i.e., the obtaining and enforcement of patents). What does he know about the economics associated with patents and how they promote the progress of science and the useful arts?

    My general framing of the issue is similar to that of free-market champion Milton Friedman
    Here we go. This is where the meaty stuff lies. Most people don’t know the difference between a free market and a fair market. The economic policy of the US has long been to create a fair market. There are a number of regulations in place to keep companies from screwing over each other and consumers. Anti-trust laws are a good example of laws intended to create a fair market. The problem with a “free market” is that it essentially the law of the jungle. Big eats small. Powerful destroys the weak. The rich get richer and the poor get poorer. The natural result of a “free market” is that oligopolies, monopolies, and cartels get created — the purpose of which is to improve profits by reducing competition. Free market does not mean everybody competes on a level field — it means unfettered ability to destroy your competition by whatever means available.

    In this context, it is understandable why patents are abhorrent to hardcore free-market advocates. A patent allows the little guy to get a toehold in the marketplace. A toehold that would get squashed by larger competition who otherwise has the advantage of marketing, production, supply-chain, etc. Why invent technology, when you can steal it? In a perfect “free market,” stealing technology is perfectly OK.

    Why is this the case? “The justification for the patent system,” wrote Joan Robinson when defining “the paradox of patents,” is to “slow[] down the diffusion of technological progress [to] ensure[] there will be more progress to diffuse.”
    Joan Robinson? Citing a British Economist who has been dead for 35 years — seriously? There is this old computer expression of garbage in, garbage out. The purpose of the patent system is to promote progress. While some people will invent (and disclose their inventions) for altruistic reasons, most will not. The problem with intellectual property is that it is easily stolen. As such, why put the time, effort, capital into inventing when that invention can easily be stolen? Patents promote invention by allowing people to see a return on their investment. Patents as roadblocks also promote invention because a roadblock provides impetus for inventors to take the road less traveled. Many technologies turn out to be technological dead-ends. Patent roadblocks force others to find other paths, and sometimes those other paths (while harder at first) lead to great results than the initial path ever could. Patents also provide incentives for inventors to plant their flags quicker. Why spend time and money quickly developing a product when you can just wait for a competitor to do the same and then steal their idea without having to spend money on the R&D? Patents foster a race, and the faster inventors proceed along this race, the better off society is as a whole as society gets quicker access to better technology.

    The advantage of broader-based funding for research and education, prizes, etc. is that they are financed through our progressive tax system, not regressive monopoly pricing paid by consumers.
    The disadvantage is that you are relying upon the government to determine what or what isn’t valuable. The patent system relies upon the market to determine what is worth inventing and what isn’t. Inventors are far more in touch with what the market wants or needs than the government could ever be.

    Take the example of software patents, where overly broad claims can easily hinder innovation at great cost to society
    Ahh … the “overly broad claims” rhetoric we hear from the anti-patent crowd ALL THE TIME. Patents on software have been around for a very long time (probably the 70s). I don’t know about the rest of you, but I think software technology has grown by leaps and bounds over the last 40 years.

    despite the value of the intellectual effort that went into the development of the patent being relatively low
    I want to hear you tell your free market friends that “work smarter, not harder” is invalid concept and that the amount of work needed to accomplish something should be the determining factor in the value of that work. That’ll go over really well, I’m sure.

    Rather, they abused their patents beyond the scope of what their legal right to exclude granted.
    All rights can be abused. However, one does not throw out the baby with the bath water.

    What is excluded from this piece is the context of my argument: due to the Wright Brothers’ patent war and the subsequent chilling of innovation, American aircraft were technically inferior to their European counterparts in WWI, costing American lives in the conflict.
    Oh Lord … ‘patents cost American lives.’ Can you do better than that? Today, the US seems have have very robust and capable military equipment today — despite a very robust patent system. How can that be? Based upon your logic, shouldn’t the US be lagging behind other countries?

    I am frequently surprised that in the landscape of intellectual property, perhaps the wonkiest topic in public policy imaginable, there exists such rancor and hostility in dealing with intellectual opponents
    Because we are tired of hacks who take pot shots from 30,000 feet who don’t know what they are aiming at or what they are hitting. Ivory tower intellectuals are disdained for a reason. You’ve never been in a room with an inventor whose company is thriving because his patents allowed him entry into an otherwise closed market. You’ve never been in a room with the owner of a company who is having his patented products knocked off by cheap reproductions out of China and is trying to stay afloat.

    implying dishonesty on the part of myself or my fellow panelists without serious evidence as to our intentions or integrity
    Perhaps dishonesty is too strong of a word — a better one might be gross ignorance. The patent system has been attacked by those in the employ of those oligopolies I spoke of earlier. They are well known here, and I won’t repeat their names. We’ve seen dishonestly made arguments all the time, and we are conditioned to treating those bad arguments as, in fact, dishonest.

    To you, this may be simply an exercise is discussing public policy. However, to many here, this is about our livelihoods and the livelihoods of our clients and a venerated US institution that has been around for a very long time. I suggest you wade into these waters very cautiously.

  8. BP October 24, 2019 2:08 pm

    For “R Street” to portray itself as “Libertarian” shows the level of deceit and the lack of understanding of the Libertarian Party (at least what it used to be).

    And, as you reference, Ayn Rand, from her HUAC testimony: “Miss Rand. I don’t believe the American people should ever be told any lies, publicly or privately. I don’t believe that lies are practical.”

    Thus, R Street is counter to Rand. Yet, R Street calls itself “libertarian”.

    And, from the Washington Examiner, October 17, 2019 (NOTE REFERENCE TO R STREET AND GOOGLE):

    But the push for government intervention runs counter to traditional conservative values, said Daisy Soderberg-Rivkin, a resident fellow on the policy team at the libertarian R Street Institute.

    Ms. Soderberg-Rivkin, a former content moderator at Google, said the “split [on the right] essentially comes from a misunderstanding of technology.”

    * * *

    The Internet Accountability Project, however, portrays the leaders of Big Tech as the 21st century reincarnation of the robber barons who should spawn an “antitrust revival.”

    “We are living in a new Gilded Age, only this time the Robber Barons wear hoodies and live in Silicon Valley,” the group writes on its website. “Today, Swamp Conservatives who leap to Big Tech’s defense are mostly taking Big Money from Big Tech. They may call themselves Conservatives but their paychecks are coming from Silicon Valley.”

    And, as I referred to Raspberry Pi: The Raspberry Pi Foundation is a UK-based charity that works to put the power of computing and digital making into the hands of people all over the world. We do this so that more people are able to harness the power of computing and digital technologies for work, to solve problems that matter to them, and to express themselves creatively.

  9. Pro Say October 24, 2019 3:16 pm

    Daniel — I suggest that you and your anti-American R Street (for Ripoff innovations from others) “Institute” immediately join Bernie Sanders’ campaign.

    Your innovation socialism will fit right in with Bernie’s democratic socialism.

    You know: Feel the burn an’ all.

    Respectfully submitted.

  10. angry dude October 24, 2019 4:53 pm

    “He graduated from Johns Hopkins University with a B.S. in Applied Mathematics & Statistics and Political Science”

    Wow !!!
    I got MS and PhD in hard sciences from the same university and can’t believe that dude with BS in Applied Math and Statistics from JHU is completely science and overall ignorant
    So he probably did’t do well in math and statistics and switched to political science where bs is the norm of life

  11. Anon October 24, 2019 5:05 pm

    Curious,

    Powerfully stated – I applaud your points.

  12. Ternary October 24, 2019 5:12 pm

    In this time of “quid pro quo” there is another Latin term that applies to patents: “sine qua non.” Translation: Without it nothing. That is: if you don’t adequately incentivize the inventor, nothing will eventually be invented. That is also where the “quid pro quo” comes in: reward the inventor for his invention.

    It is the fundamental issue in Patents. All the rest is ideological mumbo-jumbo. It seems that Daniel is (theoretically) in favor of patents but is vague about the compensation of IP. A mark-up of 10% of a product due to patent rights is deemed a tax. As soon as the term “tax” appears in an article, one should be aware of ideological arguments. As in this article. Those arguments are not bad ‘per se’ but they require substantive factual data to be rationally acceptable, which are not provided.

    In fact, as soon as names like Hayek and Friedman pop-up, one should be aware that the arguments are probably ideological, not factual. My own ideology: logical positivism/empiricism, “seeing is believing” in short. Or with Wittgenstein: ‘the meaning of a sentence is its methods of verification.’ There is nothing in Daniel’s article that provides a well constructed and fact supported argument that the Wright patent stunned airplane development. There is nothing to learn, and nothing to verify.

    The Wright brothers myth is the US counter-part of the Watt myth as being a patent troll. Both have been debunked, but are mindlessly repeated by authors with ideological intentions.

    The article on the Wright brothers that Daniel cites does not have any factual proof that the Wright brothers’ patent “stunned’ US airplane technology. No factual information is provided about the “stunning.” I would refer readers to for instance Ron Katznelson’s article that factually debunks the persistent Wright brothers’ patent myth.

    So, the shortcoming in Daniel’s article: lack of supporting information/data for the ideological conclusion about the patent system.

    My overall dismay about this type of articles: a continuous degrading and political undermining of the purpose of the US patent system, unsupported by factual data and arguments, in order to pursue an ideological goal. Basically a waste of time that I could better spend on inventing if the patent system was not a turn-off and nowadays provides little to no incentive.

  13. Anon October 24, 2019 6:54 pm

    Ternary,

    I applaud your contribution as well – you two have pretty much covered what I would have written, so thank you both.

  14. Someone October 24, 2019 6:55 pm

    “due to the Wright Brothers’ patent war and the subsequent chilling of innovation, American aircraft were technically inferior to their European counterparts in WWI, costing American lives in the conflict. ”

    Right. And it had _nothing_ to do with the US not even entering the Great War until other countries had been going at it – and developing aircraft under war pressure and experience – for 3 years by the the the US got into it? Every country in the war started out with rudimentary flying machines.

    The notion that patents cost the lives of American servicemen is ridiculous because the US mostly used combat aircraft bought from the British and French. Unsurprisingly, the European aircraft used by the US were not “technically inferior to their European counterparts”.

    And if this assertion is a criticism of the patent system, it’s an incomplete one because it fails to ask whether aircraft would have even been invented if the Wright brothers knew that anyone could steal the fruits of their labor and creativity.

  15. TESIA THOMAS October 24, 2019 7:34 pm

    I could possibly be a prime example of this whole, “In some cases, the government may need a specific invention and offer a prize for its invention—granting it only to the party that is able to produce it, making it a customer and not a regulator.”

    The DoD keeps offering contests on unique closure systems like so: https://www.innocentive.com/ar/challenge/9933788

    I’m not applying.
    Why?
    Well, I’m not pouring my own money into giving the government what it needs while it funds some jokers with PhDs over and over again hoping that the injection of government funding will make the PhDs’ closure what it hasn’t been for nearly ten years now.

    I just told them they may be retired or dead before DoD gets its hands on it unless they steal it.

    And, as concerned said @4:
    “The preceding statement of American lives were at risk seems in direct conflict with 28 U.S.C. §1498. The government has the right to steal or infringe patents, but must fairly compensated.”

    So the DoD should’ve just stolen the Wright’s invention and moved on. Oh, but what really was the problem is that they only wanted to pay jokers like Langley.

    They wanted the Wright Brothers to do what they had to do to get the government at the forefront of aviation while they wasted time with Langley.

    And, if the Wright Brothers had ANYONE to sue that means that someone was already using their IP without caring.
    Curtiss did not care one bit about the Wright Brother’s patents. And he kept right on inventing, even asserting his own portfolio later.

    So one of the main entities the Wright Brothers went after, Curtiss, soon used his own IP to the full extent of his Constitutionally given rights.
    The US government could’ve just paid Curtiss too before they needed the tech for the War. Well, they didn’t want to pay anyone except academics who gave them nothing! Just Langley. Curtiss and the Wright’s weren’t academics!

  16. TESIA THOMAS October 24, 2019 7:49 pm

    The government offers these pathetic contests for paltry sums and they want inventions from anyone to LICENSE the IP. So, the random person has to have developed their concepts enough that the government knows exactly what it is and does…and then buys a license for $50K.

    Yet, it offers SBIR and other contracts to academics for Millions of taxpayer dollars to often not even get any rights that’ll it’ll even use to those inventions. To not even know the outcomes or if everything the grants awardees propose will function or work.

    How Qualcomm started – SBIR. What a success! But, where did the government take any of those IP rights – a license of any kind for the Millions put into it?

    No, but they’ll buy a license for $50K for something they know everything about.

    Up to $50K license for fully functional prototype.
    $1.2 Million for an idea.

    My whole story is on my blog, Daniel Takash.
    http://www.zipintothefuture.com/

    Read it if you would like to see an example of where Hayekian doublespeak gets you.
    It’s double speak because on one hand the Fed will give millions to a Langley just to see what happens and on the other hand they’ll hold a contest for a Wright Brother’s type or just see what a Wright Brother’s type will give to them for free.

  17. Night Writer October 25, 2019 7:57 am

    @14 Someone “Right. And it had _nothing_ to do with the US not even entering the Great War until other countries had been going at it – and developing aircraft under war pressure and experience – for 3 years by the the the US got into it? Every country in the war started out with rudimentary flying machines.”

    This is exactly right. And this pattern of starting off with bad equipment going into a war repeated itself in WW II with tanks. Both the US and Germany started off with pretty bad tanks, but Germany changed their tanks pretty quickly from the ones they used to invade Poland.

    The author of this post Daniel Takash is another one of these Lemley like people that make up these swirling abstractions about how the world works to disparage patents. (There are two sources of the disparagement. The near monopolies that want to end IP rights for all but themselves in SV (copyright is going the same way) and the academics that simply have no understanding of how the real world works and have generated all these theories about how patents work that do not stand the test of actual experiments or even the test of common sense.)

    Anyway, these people are getting a lot of money to burn down the patent system (Lemley admits that he and his former Google executive wife have made many millions burning down the patent system.)

    The core problem is the legislators are now all bought and paid for. Obama was bought and paid for. You can’t change people like the author. He is getting money and fame burning down the patent system and his mind probably cannot even understand reality at this point. He lives in a psychotic realm of reward that is divorced from reality–except his masters know exactly what they are doing.

  18. Night Writer October 25, 2019 8:04 am

    Another thing that is kind of interesting about the author’s ridiculous assertions about the Wright Brothers patents is that the war development is similar to what patents are supposed to create.

    There is seed money given and development done and the company that comes up with the best design gets a giant reward of massive orders. The patent system is meant to facilitate this process when there isn’t a war and money can’t be thrown at all possible solutions and —and this a big one that the academics don’t acknowledge–where we don’t know what technologies there are going to be.

    Another thing. This is big too. The academics like the above author does not even acknowledge a core problem with innovation. That is that the cost to innovate for an individual or company may be greater than the increased efficiencies that they will get from the innovation. So spending time on a new plough may not make sense in terms of cost benefit analysis unless you can reap the benefits of a patent system and sell it to others.

    The academic like Lemley intentionally ignore this and it illustrates that they are not academics but paid off propogandists.

    There are many more examples that illustrate that people like Lemley have no interest in understanding the world or innovation, but only in burning the patent system down to fill his bank account.

  19. TFCFM October 25, 2019 9:33 am

    I wish Mr. Takash luck in finding much “sincerity,” “honesty,” or “good-faith criticism” here.

    Take IPWatchdog for what it is: mostly a place to observe the ‘best arguments’ (such as they are) of patent trolls and wannabes. From time to time, we’re favored with reasoned opinions offered by representatives of patent holders and applicants. You simply need to sort through a lot of nonsense to find them.

  20. B October 25, 2019 9:38 am

    Patents are subsidies? What trash? I was generally taken with this item until that assertion. Perhaps the author should referee to a dictionary.

  21. Anon October 25, 2019 9:42 am

    Night Writer @ 18,

    Your post dovetails with a position of mine that I have oft stated in defense of what many academics (and judicial members who do not understand the nuances of patent law) cannot stand:

    The “stick” aspect of patents.

    The adage “necessity is the mother of invention” plays out in both your comment concerning times of war AND the general nature of a patent BLOCKING others.

    There is no (objective) doubt that war — as unfortunate and nasty as it can be — has been a prime motivator for fantastic leaps in innovation.

    There is also no doubt that many in academia — and unfortunately, the judiciary — do not understand that patents WORK because of both a carrot AND a stick approach.

    It is the very “blocking” that many in both camps lament that provide the spark for others to innovate around the item that is providing that “block.”

    It’s as if there is some “gee, it would be nice” zeitgeist to have natural pearls without there being a gain of sand or some other irritant at the core.

    Patents are designed to block.
    Patent are designed to pre-empt.

    Their purpose in doing so is a good thing.

  22. angry dude October 25, 2019 10:08 am

    TFCFM @19

    Dude,

    I challenge you to come up with ONE(!) name of a happy… err…. forget “happy”… just “not EXTREMELY pissed off” patent holder or applicant under the current regime in US

    Even Josh Malone who WON his patent battles with cheap knockoffs of his Bunch-of-Balloons is pretty pissed…. just ask him

    Perhaps you should get together with Daniel for a beer and talk this nonsense to each other
    The rest of people on this blog are fed up with your lies and misrepresentations

  23. Night Writer October 25, 2019 10:17 am

    @19 TFCFM I wish Mr. Takash luck in finding much “sincerity,” “honesty,” or “good-faith criticism” here.

    Here we have a typical propogandists. Notice that TFCFM does not bother to address any of the substantive criticisms of the article. He just issues a blanket condemnation of anyone supporting patents, ’cause, ’cause, he feels it (probably another paid off propogandists.)

    Try to address some substance, TFCFM. Pretty typical of accuses others of what your game is TFCFM.

  24. B October 25, 2019 10:36 am

    @ Ignorance “I challenge you to come up with ONE(!) name of a happy… err…. forget “happy”… just “not EXTREMELY pissed off” patent holder or applicant under the current regime in US”

    Steven Berkheimer

  25. Anon October 25, 2019 10:41 am

    TFCFM,

    Your lament of: “wish Mr. Takash luck in finding much “sincerity,” “honesty,” or “good-faith criticism” here. Take IPWatchdog for what it is: mostly a place to observe the ‘best arguments’ (such as they are) of patent trolls and wannabes.” says more about you than your attempted insult says about others.

    You are always free to your opinions of course, just as others are always free to share how off-base and disconnected those opinions are.

    Your “From time to time, we’re favored with reasoned opinions offered by representatives of patent holders and applicants. You simply need to sort through a lot of nonsense to find them.” smacks of the same NONSENSE from you about your willingness to engage. There is no such willingness as you dismiss that which you do not wish to engage with and then invoke this “sense of outrage” when your own “style” is no less “outrageous.”

    You sir, are a hack and a fraud. Pretending here that the feedback to Mr. Takash has somehow not been on point (in any of MANY ways) and attempting to dismiss any view that does not align with your own (while accusing the forum of the very action that you take for yourself) is the height of hypocrisy.

  26. Night Writer October 25, 2019 10:56 am

    @21 anon

    I agree. Actually, this is basically what Jimmy Carter said and why he strengthened patents to end the great malaise. He was primarily responsible for the CAFC, although Reagan signed it into law.

    But, people like Lemley have fabricated a reality that has no correspondence to anything other than what their masters want.

  27. Curious October 25, 2019 11:57 am

    Steven Berkheimer
    Really? He isn’t out of the woods, and his litigation has been stalled for a couple of years with a trip to the Federal Circuit, an en banc Rehearing, and now 15 months waiting for a petition for cert to be decided at the Supreme Court. You think he is even reasonably happy about the situation?

  28. angry dude October 25, 2019 2:04 pm

    B @24

    “Steven Berkheimer” ?

    Dude,

    Just quick googling reveals that this guys is BURIED in litigation

    I am now asking you: Has he EVER collected any licencing fees from any of the infringers ? And how much ? And were those fees larger than the amount spent on litigation ?

    Ask Josh Malone – he’ll tell you everything

    The last independent hi-tech inventor to successfully run patent licensing campaign was Brent Townshend with his 56K modem invention, as far as I can remember
    But that was in late 90s, long before EBay
    And he didn’t come out of woods either (he had corporate career at Bell Labs and at least one tech product company started before 56K modem patent) and was also buried in litigation for years
    Of course, nowadays his patent(s) would be immediately thrown out as “abstract”
    – it all boils down to clever modulation technique – a “math” therefore abstract and unpatentable
    RSA algo from cryptography hall of fame would be 100% unpatentable today, despite driving global e-commerce

  29. AAA JJ October 25, 2019 4:51 pm

    “Rather, they abused their patents beyond the scope of what their legal right to exclude granted.”

    As I noted in the post that this post is in response to, the Wrights won all 9 suits they brought against others and won the 3 suits that were brought against them. Not sure where the abuse was.

  30. AAA JJ October 25, 2019 5:03 pm

    “But following the issuance of their 1906 patent, which covered their specific solution (called ‘wing warping’) to the problem of lateral stability, they sued rivals with alternative solutions to the problem.”

    Their invention was more than “wing warping,” and more than the “wing warping” applied to the problem of lateral stability as a “specific solution.” You either don’t understand that or your arguments are disingenuous. In the spirit of civil debate, I’ll assume the former.

    If the “alternative solutions” of others were within the literal scope of the claims, or within equivalents of the claims, then that’s hardly an “innovation” in aviation.

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