Leaves out important factors

Story: Does Intellectual Property Need a RedesignTotal Replies: 12
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Jul 26, 2011
12:49 AM EDT
1. Intellectual property does not have a legal definition. Patents do. Copyrights do. Intellectual property doesn't. It is an attempt to pawn off a concept that doesn't fly. Ideas are not property. Lumping these three categories together ignores the differences between them.

2. It ignores trademarks, which are usually lumped in with the political term "intellectual property". Trademarks have caused some trouble where they have necessitated rebranding of Free Software, but they have not caused near the problems that patents and copyrights have.

3. The proposed solution - just stop - is simple only in the mind that thought it up. It will cause some very complicated consequences. I have to believe that there is a solution that balances simplicity of both solution and consequences.

4. The author buys into the idea that pharmaceutical patents help. Pharmaceuticals can also be researched in universities, with the pharmacological companies doing the implementation. The cost of getting new medicines approved for use by the FDA is a regulatory issue that needs to be resolved, but it is outside the scope of the patent system.

5. The author assume that both mechanical and pharmaceutical patents are working right now, and help foster innovation. In fact, the patent system is broken. Patents are being granted in all fields that are obvious. Too many patents are being granted because the examiners are not being given enough time to discriminate a good patent from a bad one. Until this is fixed, we won't be able to trust any patent.

The patent system is not doing what was envisioned when it was set up. It is being used as a weapon, and helps only those large companies who can afford the attorneys instead of helping the independent inventor. I agree with the author that it is time for a change, but disagree on the kind of change needed.

Jul 26, 2011
7:31 AM EDT
@ artp On point 5, it is probably impossible to cover the hundreds of millions of lines of open source software (not to mention all closed source).. so don't hold your breath.

Also, the law sets a bar for inventiveness that is "non-obvious to a person having ordinary skill in the art". That is a ridiculously low bar from which to grant anything like a 20 year monopoly. So, it's not by accident that many patents are written so broad and basic, each potentially capable of being that "first" to be awarded a patent. Broad is what maximizes leverage, and it's what is easiest to write up quickest.

And such a low bar, obviously getting in the way of advanced details being created by many, cannot possibly promote the progress.

Jul 26, 2011
9:11 AM EDT
I guess this is the right time, and place, to suggest two excellent works on the subject.

Against Intellectual Monopoly, Boldrin and Lavine http://www.dklevine.com/general/intellectual/against.htm

Against Intellectual Property, Kinsella http://www.stephankinsella.com/publications/against-intellec...

The author/artist/inventor has one intrinsic monopoly that no one can every alienate, that of being first to market.

Everything else is a matter of personal preference. IP laws are just that preference made political, which is why everyone keeps arguing about it just like every other issue that has been usurped by politicians.

Jul 26, 2011
3:45 PM EDT

on point 1: Intellectual Property doesn't need to have a legal definition for the author to talk about it as a concept that we all understand applies to the subjects of the article so that we can look at and think about the issues.

on point 3: A simple solution can have complex results. The author recognizes these results in the fact that he addresses the backlash and believes we can be at peace with it. And in the end it will create a better situation I believe.

on point 4: Are you suggesting an enormous increase in University funding? Which state do you live in? I know of quite a few where this is not at all possible in the foreseeable future.

on point 5: Almost every pharmaceutical and mechanical patent out there is non-obvious and requires extensive capital to produce currently. But the author is making a case for law that reflects the PURPOSE of patent law, and not the reworking of patent law that reads to the letter of the current wording. In other words, the author is not looking at the law as it is now to decide how we should remake the law in the way it should be in a vibrant and growing technological economy.

And in the interest of full disclosure, I should mention that the author is me. =)

Jul 27, 2011
2:08 AM EDT
>> on point 5: Almost every pharmaceutical and mechanical patent out there is non-obvious

To clear my conscience, I feel compelled to ask, you do know what "non-obvious" means and you were just being thorough in your reply, right?

For others who may not have heard that word before...

Let's say you take a college exam on material you have been learning. The whole class does. And of everyone there, there is the hypothetical average student that represents the average performance and understanding of everyone there. We'll call this person PHOSITA. Let's assume the exam is such that it has a question with a solution that this average skilled person would find to be essentially non-obvious. Now, statistically speaking (imagine a "bell curve" with its standard deviation, etc.. think of "grade by curve") a fair number of students to the right of the center of the class average will NOT find that question non-obvious; they will find it not non-obvious or, as most people might say, "obvious".

A patent is awarded simply by meeting the non-obvious to a PHOSITA bar. This means that if you seek a patent, you have full opportunity to just barely meet that bar (like the question just mentioned), rather than to take much longer to file the patent in an effort to greatly surpass that low bar consequently (a) risk having someone else beat you to the patent and (b) risk yielding coverage over would be infringing inventions on which you could for example profit. The lowest bar met implies the broadest and greatest coverage for that patent. You want to just meet that low bar to get max value for your patent. You want to file a patent as soon as you can just barely meet that bar. In fact, patents are structured so that you can meet what you believe is that low bar and then incrementally add specificity in case that bar was actually a little higher than you first thought.

Thus, when people say that something clearly is non-obvious as if to say that such a problem/solution "deserves" more than 1 day, week, or (uhh) month's monopoly time (never mind 20 years!!!!) on account of that "complexity", I shake my head and almost want to cry. Then I think about bombing the USPTO at the next July 4th juncture (it should be empty). Eventually, I settle on advancing my plan my faithful monkey friends religiously rehearsing will one day carry out. [Since I don't want to have to kill anyone taking the time to visit lxer and engage this community, I'll withhold further details.]

Jul 27, 2011
2:53 AM EDT
@Browser72, there are differences between software patents (aka pure information patents) and other classes of patents that, for example, necessarily require production of new physical material, but the fact is that patent law has an extremely low bar written into it.

If there are few players in the area and some but not all of these will require hundreds of millions or billions USD to develop and reach the target audience, then some form of handicap is IMO a reasonable and probably healthy law to pass.

However, I think raising the inventiveness bar is a must.

[Drugs have other issues, including that much research is government funded, that the other non-mandatory costs may not be that high for the particular firm doing the work (and relative to the competition), and that there are ethical issues in play.]

Besides raising the low bar significantly, it would be much better if all patents were but a handicap exclusively to help small firms as protection against large firms (more specifically against large scale commercialization). I think the big boys can defend themselves (with exceptions taken, eg, when the government requires clinical tests and other efforts that would thwart first mover and other advantages). Jobs can cry all he wants about android, but he relied on open source and many existing innovations to get there, and he has had his net wealth and income go up by truckloads since the iFamily started to be marketed. It doesn't help consumers or progress to try to have him lock in a monopoly beyond what he is already capable of doing (Apple already exploits trade secrets in formats and interfaces to slow down direct major competitors). In fact, I'd argue that he should be required to reveal interfaces more clearly and require competition in order to get an inter-state license to sell software, depending on the scope of what the software does. Competition should be a requirement in most cases. When competition can easily be thwarted, we usually have free market assumptions not holding and our US government de facto being used to support this player with very leveraged negotiation position that is likely unhealthy to our Union and its citizens (for whom the government is intended to serve by creating fair rules of play).

I present opinions, of course, but it's hard to argue that the "non-obvious to a PHOSITA" bar is anything but rather (or perhaps extremely) low and almost sure to stifle progress (eg, for cheap process/information patents), hurt consumers to some degree, and abridge civil liberties of potentially too many when we look at any sort of monopoly duration beyond a token amount after the product begins to be marketed to the primary consuming audience.

Jul 27, 2011
11:28 AM EDT
Um. Yeah. I was being thorough. But not as thorough as you were I suppose.

And I agree. Non-obvious, besides being a subjective concept is also a very low standard. Unfortunately we have a complicated system that only really solves the matter of what is non-obvious by the tune of millions of court dollars wasted on one-up-manship.

We could be more efficient as a society with our resources.

Jul 27, 2011
4:28 PM EDT
Quoting:"And I agree. Non-obvious, besides being a subjective concept is also a very low standard. Unfortunately we have a complicated system that only really solves the matter of what is non-obvious by the tune of millions of court dollars wasted on one-up-manship."

So we appear to agree on at least one point.

The bar is too low. The place to raise the bar is at patent examination, before all those millions of dollars are spent trying to hold back the flood. I once heard that a fool can ask more questions than a wise man can answer. This appears to be true in the case of the USPTO. The patent examiners who are putting out foolish patents are swamping the courts and costing US industry millions of dollars in real money, not to mention the billions in lost opportunity.

At the very least, it would seem to be wise to reduce the output of the USPTO for the sake of judicial efficiency, let alone the efficiency of every other person and entity involved in these patent traps.

On another point, I would like to restate that patents and copyrights are not property. They are instead grants of privilege from the government. The have been granted, they can be taken away without any real harm done to the holder of those privileges. They didn't have privilege before, they wouldn't have privilege after. That is one of my major objections to the term "intellectual property". It puts it in the category of an entitlement. And it isn't.

Jul 27, 2011
5:25 PM EDT
Technically, they are a property right, because they can be assigned, transfered, exchanged for monetary consideration, etc. Just because they aren't tangible, doesn't make them not be property. If you use the "sovereign grant" theory, land would not be property either, since a deed is nothing more than an exclusivity grant to a particular parcel of land (a right to exclude others from it). You can't move.a.parcel of property across town, and it survives its owner, after all. It's not like you can "possess" your land in the sense that you could a piece of.moveable property (chattle).

Jul 27, 2011
5:42 PM EDT
@JaseP, are you thinking of allodial title? There are very few of those in the USA these days.

Jul 28, 2011
9:13 AM EDT
I disagree with both the overall "intellectual property" and the specific implementations (copyright and patent). I base this disagreement on both practical and theoretical grounds.

My theoretical grounds: independent invention. Very few things spring from the brow of an inventor. Telegraph, telephone, virtually every computer science advancement, all had nearly parallel inventions in two or more places. It seems wrong to grant "ownership" over an idea, which is virtually certain to have occurred to other people many times. How do we decide who to grant this ownership? Shouldn't we give it to the person who did the most, who created the "IP" from the least basis of general knowledge? Giving ownership to someone who filed paperwork first seems very prosaic, and possibly counters the legal basis of "IP".

Practically, the idea of "intellectual property" is just one of those things that causes a boatload of trouble. Monopolies make economies stagnant. We can see the stagnation today of a patent monopoly of nearly 100 years ago. The Wright brothers got patents on basic airplane concepts. They sat on all innovation in the USA, causing innovation to move to Europe, particularly France. That's why airplanes have monocoque construction, fuselages, ailerons and empenages, not stressed skin construction, hulls, trimmers and tailpieces.

There are infinitely many other problems.

Jul 28, 2011
10:07 AM EDT
@ Gus3:

Exactly the opposite. Allodial title is a grant free of all encumberances, including the resposibility to pay taxes on it. That makes to deed holder the outright owner of the land, the sovereign losing any reversionary interest (at least to that owner). That's why I used quotations when describing it as a sovereign grant theory. Typical "fee simple" deeds confer ownership subject to the right of the sovereign to retake the land by eminent domain or a tax lein, etc. The fees that the USPTO imposes makes a patent more analogous to a fee simple deed than to an allodial title deed, the fees being similar to taxes imposed on land.


Jul 30, 2011
7:02 PM EDT
@artp >> The bar is too low. The place to raise the bar is at patent examination... The patent examiners who are putting out foolish patents

1. The actual law states "non-obvious to a person having ordinary skill in the art." This is a low bar (by law) to which the USPTO must hold itself. We see a problem with software in a large part because so many people can practice software (all you need a cheap PC and Internet access) and you can create without material limits (everything is information/virtual).

2. The size of the prior art is not something the patent examiners can hope to manage, at least when it comes to things like software. There are too many people creating too much of it. This was true at the time of States Street (early 90s) and is even more true today, especially with so much more open source readily available.

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