“One of my top scientists has four kids. How is he going to provide for his kids without profit?” So says Martin Shkreli on this week’s Milo Yiannopoulos Show. Shkreli is supposedly the most hated man in America for raising the price of the drug Daraprim from $18 per dose to $750. The way he tells it, it was like buying a wine company that was selling wine for $2.50 cents per bottle but losing money, when all the similar wine was selling for $100 per bottle. He saved the business.
He described being interviewed on CNBC, a business news channel.
I went on there and it felt like they were shaming me for raising the price of Daraprim and I’m sitting there saying, “all fucking day, 24 hours a day all you talk about is profits, and my profits are inappropriate?
Milo laments the regression of America from a place that celebrated success to one where the media and the government like to punish rich people. Shkreli pointed out how people used to love to hate Bill Gates, but they do not any more, now that he is giving he money away. “What else did they think he was going to do with it?” he asks, pointing out that once you have one billion dollars, you can no longer really spend any more on yourself.
Shkreli has been arrested on fraud charges. He says the charges against him make no sense, given that his investors are making lots of money.
In the interview he comes across as a fun guy who annoys the right people. His Twitter feed is entertaining, too.
Update: There is something of an Ayn Rand novel about his questioning from Congress.
“Investors are making money” is not actually a defence against a Ponzi scheme. Shkreli seems like the poster boy for what the left thinks capitalism is – greed in the stupidest form possible, with no regard for your reputation or the long term.
It is all very well to be all about profits, and his right to charge whatever he wants. However, what is not stated is that his profits are enforced by the government. Specifically he has a monopoly enforced by the government on his drug via patents (or I believe in his case it is some sort of exclusive marketing thing.)
Profits are moderated by competition, but if you use the government to eliminate competition you are playing by a whole different set of rules.
So greed is good, profit is the laudable, but only if you do it by convincing the public to buy from you on your own merits, not by forcing your competitors out of business at the point of a government gun.
Lookup the price of gleevec 600 mg on goodrx. It’s $18,000 per month. PER MONTH. This is a life-saving drug. Without it, I’ll day a very painful death in about 3 years. The research behind it was largely publicly funded. The scientists who did the research (Brian Druker) is not receiving the profit. The high price is purely a matter of the patent that gives Novartis monopoly rights.
The drug he got a lot of grief for was off patent. He was simply taking advantage of the fact it takes eighteen months or so for a new production line to get approved by the FDA. So if you can buy all the production for a given drug you have a year and a half in which you can charge whatever you want.
Eric,
So in other words, he was taking advantage of the FDA’s hindering of competition.
And given the behaviour of the US and State governments over the last century or so, he would have been a damn fool to think that he would not be noticed and nailed.
Either we believe in IP or we do not.
If IP (patents and copyrights) are fine then so is jacking up the price of something covered by them – jacking up the price towards outer space.
Presently the view seems to be that IP is fine as long as people who own patents and copyrights do not try and make lots of money out of them.
That makes no sense – as there is no such thing as a “reasonable” or “just” price.
Whether IP is actually fine or not – is an argument I leave to others.
But if IP is fine – this man has committed no crime.
And only a public saturated by “Pragmatist” philosophy (i.e. a form of thinking that rejects PRINCIPLES) could think that he has committed a crime.
I don’t think I know all the details. But if he’s taking advantage of government stupidity (he did not create the situation and I don’t think he is lobbying for it) then my ire is saved for the government. The profit motive can do good even in these situations. If Eric is right it seems like others might be encouraged to produce this drug, for instance.
@ Dom, who wrote:
“Lookup the price of gleevec 600 mg on goodrx. It’s $18,000 per month. PER MONTH. This is a life-saving drug. Without it, I’ll day a very painful death in about 3 years. The research behind it was largely publicly funded. The scientists who did the research (Brian Druker) is not receiving the profit. The high price is purely a matter of the patent that gives Novartis monopoly rights.”
First off, what I am going to say is not intended in any way to insult your personal situation or make light of your condition. If you are taking Gleevec, you are a very sick person and I have every sympathy with you and your family in what must be a very difficult time.
But that being said – your description of the situation surrounding Gleevec is not quite – complete.
While it’s true that some of the research that led to the successful use of Gleevec was performed by publicly-funded agencies, the lion’s share of the development, approval and manufacturing cost was borne from its inception by Novartis (and its predecessors). Novartis began development of the drug family that’s now sold as Gleevec in 1992, and Novartis solely bore the huge costs of getting it to market – much of which is regulatory cost. It’s disingenuous to state the ‘the research behind it is largely publicly-funded’ when the fact is that that research is but a small part of the total cost required to get the drug to market.
As to Dr Druker and the fact that he does not ‘receive the profit’ from the sale of Gleevec – not to be blunt, but how much did Dr Druker personally invest in the development costs of getting Gleevec to market? He has never manufactured a single pill of Gleevec, nor risked a single dollar of his own money in its manufacture. Why should he profit from it? As it happens, I am a named inventor on more than 50 US Patents, which made my (then) employer large amounts of profit. I was well-paid to devise those inventions, and my employer took all of the risk in development and production to manufacture them for sale. My risk was nil – why should I profit from them?
Novartis enjoys a state-sanctioned monopoly on the sale of Gleevec, which will expire (soon – I can’t be bothered to backtrack each and every priority date, but it’s less than 10 years from now). When the patent expires, anyone will be able to make and sell Gleevec, and prices will drop. It’s been estimated that the societal benefits of Gleevec are approximately 10x the societal cost, even at the current pricing which Novartis enjoys due to its patent monopoly. When the patent expires, the societal benefit will only increase as prices reduce.
I am sorry that you find yourself in the particular time window in which the drug that extends your life is costly. 10 or 15 years from now, and after that forever, many other persons will enjoy all of the benefits of Gleevec at a fraction of what it costs you now. I know this must seem unfair. But the fact is that without the patent-monopoly model, drugs like Gleevec will simply not be developed. The regulatory regime for new drugs which now applies makes the cost of bringing something like Gleevec to market so vast that only a huge commercial enterprise can even afford to take the risks involved just to get it to clinical trials. And the stockholders of Novartis would (rightly) send the management packing if they risked all that money on something which would have no possible prospect of profit without the patent monopoly, even if it is wildly-effective. The only thing which brings things like Gleevec to market is the US Patent monopoly, which allows Novartis to recover their sunk costs, and a moderate profit – to be sunk into the development of the next Gleevec. Without this mechanism, neither you, nor those more financially-fortunate than you, 10 or 15 years from now, would have Gleevec – at all.
Again, I have every sympathy for your situation and it is not my intention to make light of it. But your ire is, I think, misdirected at Novartis. It should more-properly be directed at the vast and Byzantine bureaucracies which make the time and cost required for developing and marketing any new drug so huge.
llater,
llamas
@Paul Marks
> Either we believe in IP or we do not.
No, I don’t agree. This isn’t the case in any actual legal code because there is a middle ground. Let’s consider options:
1. IP is the same as any other property, so, just as I can price my house for sale anything I want, I can charge whatever I want for my IP. The government can and should enforce that property right by force, and preventing someone stealing my IP is no different than preventing them stealing my car.
2. IP is a fiction, and nobody has a right to enforce a monopoly on what I can make with my hands or do with my mind.
3. IP is not the same as property, but we the people recognize that its protection, for a while, encourages invention by providing rewards and that benefits us all. In this case, as it is given in nearly all legal codes, IP is not an absolute property right, but a limited property right, where the limits are set by legislation.
All these are somewhat logically consistent.
The legal situation everywhere is number 3, and consequently it is absolutely legitimate to argue about what rights we grant the guy in exchange for the monopoly we offer him.
My preference is 2 since the basic underlying premise — that increased innovation benefits society significantly more than the decreased competition harms it — has never even been really studied never mind proved true.
But YMMV.
And as someone point out, this specific case is more about rent seeking than patents (since what he has is an exclusive manufacturing license from the FDA) but the same principles apply.
Paul Marks is entirely correct on this one. While as a matter of politics Mr. Ed is equally correct in his remark that Shkreli ought to have been able to foresee the result of his action. Everyone here knows that patents–and the temporary monopoly they confer–were specifically authorized by the framers of the US Constitution. They must be assumed to have known what they were doing, and to have determined that the benefits to society in the aggregate from permitting that monopoly would outweigh the harms. Hard to say with certainty, but to me it is abundantly clear they have been proved correct again and again. Very surprising to see commenters here, on this site, arguing that Shkreli’s price is obviously too much without setting forth any standard by which “too much,” “not enough” and “just right” can be determined outside the sort of government fiat that this site is dedicated to opposing. My personal feeling here aligns with Dom’s. I, too, feel that it is an outrageous price, but I cannot think of a way to address it that would not cause more harm than good in the long term, although I would like to see a radical reformation of FDA procedures that currently delay the availability of new and/or substitute pharmaceuticals.
@llamas
> It should more-properly be directed at the vast and Byzantine bureaucracies which make the time and cost required for developing and marketing any new drug so huge.
Let me add my sympathies and concerns to @Dom. I am very glad that the miracle of science and capitalism has provided you this life saving medication.
However, although I think llamas’ analysis is mostly correct, where I diverge is on the conclusion, namely that patents are the only thing allowing this drug to be manufactured. As you indicate the actual cost that is protected by patents is a pretty small fraction of the overall cost, most of which is regulatory and marketing. There is no reason to believe that a different competitor making the same drug would not have those same costs, and so the first mover advantage can offset the small development cost fraction of the NRE.
Why should the competitor be allowed to ride on the regulatory compliance of Novartis? If it is necessary for Novartis it should be necessary for them too.
What you also don’t mention is that patents allow drug companies to sit on their laurels enjoying their profits rather than constantly fighting for the next win.
Let me offer an example from personal experience. I suffer from hay fever occasionally, a condition hardly worth mentioning compared to Dom, but mildly bothersome nonetheless. Claritin works well. The drug was developed and patented by Schering-Plough, and they made a lot of money off the patents. About ten years ago (I forget the exact dates) their patent was about to expire, and so the brought out a “superior” “Clarinex” version within a few months of the patent expiring. Was this a coincidence? Hardly. They delayed the introduction of a superior drug simply to allow them to extend their patent monopoly.
So patents actually also have the opposite effect — namely delaying the introduction of new medicines — as well as encouraging them. And of course patents prevent competitive pressures on existing drugs too, and competition improves things dramatically everywhere it touches. So there is both push and pull from patents, and it is not correct to think of them as this magic blanket that facilitates only good things.
I wish I had a reference, but the loathsome senator from Illinois Dick Durbin, talked on the Senate floor about a report that actually concluded that drug patents DECREASED the production of new drugs. I don’t have the report and I’d love to read it. I mention it not as proof, since I don’t have the original study, but as evidence that there are intelligent, contradicting views.
However, the bottom line is this, the question of whether the benefits of patents outweigh the harm they cause has really never been studied extensively. And if we are to have patents, which are fundamentally an anti freedom measure, there had better be slam dunk evidence that we are MUCH better of with them than without them.
People risk their capital and energies all the time without the protective power of patents. It is the very nature of business to do so.
Well thank the Lords of Google, I found a link to that study…
http://www.acslaw.org/acsblog/report-patent-law-stifles-drug-innovation
ABSTRACT
“Report: Patent Law Stifles Drug Innovation
December 20, 2006
A report by the General Accounting Office concludes that current patent law discourages drug companies from developing new drugs by allowing them to make excessive profits through minor changes to existing pharmaceuticals. While pharmaceutical research and development expenses have increased by 147% since 1993, applications for approval of “new molecular entity” (NME) drugs, or drugs which differ significantly from others already on the market, have risen only 7%. According to the report, the majority of newly developed medicines are so-called “me-too” drugs, which are substantially similar to existing drugs, are less risky than NMEs drugs to develop, and which “offer little in the way of therapeutic breakthroughs.”
Surely the issue with developing new drugs is the billion or so dollars that it costs to get it approved by the FDA? Developing the drug itself is cheap by comparison.
One report does not the science settle. Originality is one of the requirements for patentability. Like all concepts, it has no fixed meaning. I expect large pharmaceutical concerns have exerted their influence to keep the threshold of that requirement low. Dog bites man. The fact that a concept has been corrupted does not indict the concept. And there is no way to either verify or falsify the hypothesis that a patent regime has produced more net good than harm. For one thing, the basic measurement unit of such phenomena cannot even be settled, let alone the method for measuring. But most importantly, such an experiment can only ever be a “thought experiment” (which is to say, not an experiment), because it concerns a fictive, counterfactual history.
We might take AIDS drug development as an instructive case. AIDS first appeared only in our own lifetimes (well, mine anyway). Within a short time after it appeared, gay activists were vigorously condemning the government and industry for not investing enough money in finding treatments and cures. In the ensuing 30 years, I don’t know how many billions have been invested in search of treatments and cures, but many more treatments exist today than then and, unless I am mistaken, AIDS is not the automatic death sentence it once was. Yet today one sees the focus of the vigorous condemnation having shifted to the exorbitant cost of these same drugs whose development at light speed and sparing no expense was insisted upon by the same people. What are the chances that today’s treatments would have been developed absent a patent regime? Here is an illuminating article (something I rarely say of this publication) on the development of the polio vaccine, famously unpatented by Salk. One wonders how feasible massive sustained crowdfunding of drug development would be today.
@QET
> One report does not the science settle.
Of course, really I provided it more to challenge the notion that the science is settled the other way. But I should point out that the report was produced by the US Government Accounting Office, which, as you know, is a hotbed for radical anarcho capitalist revolutionaries. So you really can’t trust it.
> Originality … it has no fixed meaning.
On the contrary, it has a very precisely defined meaning in law. The meaning is stupid, but that is what you’d expect. Like llamas I have worked a lot with patent lawyers, and it really is a carnival of insanity some of the shit these people say.
One of the most important things to say about patents is that they are for the benefit of huge corporations not for the little guy as is commonly believed. The idea that Old Uncle Fred can sit in his garage and come up with some amazing new invention, fill in a government form and then profit, Profit, PROFIT with a strong defense against the big corporations stealing his idea, is an absolutely cartoonish vision of patent law.
A good patent costs tens of thousands of dollars in legal fees (good meaning worth the paper it is written on.) Uncle Fred generally doesn’t have $50,000 to invest in legal BS.
It almost never happens for uncle Fred. The vast majority of patents are produced by farms in large corporations that pump out speculative patents on everything they can think of, and are used to crush the little guy, or used as weapons in negotiations with competitors. Many patent lawyers won’t even take on clients like Uncle Fred. And the ones that do are often charlatans looking to exploit his ignorance. (Some exceptions exist of course.)
Why did Google by Moto Mobile? Not for the technology, but for the patents. And why did they buy the patents? Not because they are actively suing people for violation, but rather as a negotiation tool to prevent themselves from being sued. There is ten billion dollars of money not invested in innovation simply to protect themselves against the evils of patents and IP.
> And there is no way to either verify or falsify the hypothesis that a patent regime has produced more net good than harm.
But patents prevent me from making and selling things I invented myself. They are a tremendous imposition on my liberty. If there was strong evidence that we were all better of for having them then you might make a case that the sacrifice of liberty if a good trade off. But you are claiming that you can’t prove it either way? Then surely the default should be to leaving people the hell alone?
> What are the chances that today’s [AIDS] treatments would have been developed absent a patent regime?
You just said there is no way to know, so you are guessing at the answer. In a regime free of patents there is a whole bunch of different benefits and incentives. Company B brings out drug b, and Company C improves it to drug c, which force B to make b better, which makes Company D bring out d. Etc. Etc. The wild west of the free market is a remarkably productive place. And the biggest cost of patents is the massive opportunity cost lost by its restrictive strictures.
And AIDS drugs are a tremendous market. They cure death among people who are generally very well off, and politically sympathized with. It is a terrible disease, but a potentially huge profit center for drug companies, and all that money makes things happen.
@QET, who wrote:
‘What are the chances that today’s treatments would have been developed absent a patent regime? Here is an illuminating article (something I rarely say of this publication) on the development of the polio vaccine, famously unpatented by Salk. One wonders how feasible massive sustained crowdfunding of drug development would be today.’
It should also be noted that some parts of the development of the Salk vaccine – specifically, the clinical trials involving literally millions of children – would never pass ethical muster today. That is part of the huge regulatory cost of current drug developments.
Furthermore, it’s all very well to say that the Salk vaccine is ‘famously unpatented’, but that does rather overlook the fact that it was likely unpatentable in any case, for two distinct causes a) lack of novelty and b) publication.
Fraser Orr is making excellent points faster than I can react. And I am trapped in Area 51 today. I will try and respond to selected points later today, if he hasn’t posted even more :-).
llater,
llamas
Fraser, there most certainly is evidence that the net good from a patent regime has exceeded the net harm. That evidence is called today, modernity, 2016. A patent regime has existed since this nation’s (US) founding and today we have all manner of drug treatments that we did not have then. That we have them under a patent regime must count as evidence in favor of that regime. Not conclusive evidence, of course, but evidence all the same. I think your argument is exactly the reverse of correct: given the historical fact of drug development under a patent regime, it is rather on you to argue for changing the default, for adducing convincing evidence that a patentless order would produce superior results in this department. The Founders–no milquetoasts when it came to liberty–clearly believed a patent regime was not incompatible with liberty, and they established the default accordingly. And as for originality–if at least two people are unable to agree in a given case whether the requirement is met, then it has no fixed meaning. (But then it has long been maintained by many philosophers that no word has a fixed meaning, so what can you do?)
llamas–I only raised the Salk example to preempt someone else from raising it. I am maintaining (for the sake of argument here, that is; it’s not that I have a firm personal conviction either way on the goodness or badness of patents generally) that it is a non-trivial argument, a highly credible argument, in fact, that but for a patent regime we would not have the benefit of so many good pharmaceuticals. I anticipated someone raising Salk as an exception that by itself would tend to disprove my hypothesis, so I just thought I’d mention it first. Whether things are as you say, that the vaccine could not have been patented, I don’t know. Certainly in the popular imagination, Salk seems to stand for the proposition that a patent regime not only is unnecessary, but positively evil. Others might say that Salk is the exception that proves the rule.
Just to clarify a few points raised by llamas …
I’m not insulted by anything you wrote. And I’m not really sick; no one with CML is anymore. I’ve been on Gleevec since the year 2000 (I was in the beta group, one year into my alloted three) and aside from hair-loss and what oncologists call “sharts” (shitty farts) there are no side effects. It is indeed a miracle of science.
“While it’s true that some of the research that led to the successful use of Gleevec was performed by publicly-funded agencies …” More than some. According to CPTech, the cost of clinical trials for gleevec was 50% NCI, 30% Leukemia Society, 10% Oregon Health and Science University (where Druker worked), and 10% Novartis. Novartis was mainly responsible for the development costs.
“research is but a small part of the total cost required to get the drug to market” I am unable to get statistics on the total costs. I’d be surprised if development cost more than research.
“but how much did Dr Druker personally invest in the development costs of getting Gleevec to market?” I made the comment about Druker’s profit because the OP has Skreli saying “One of my top scientists has four kids. How is he going to provide for his kids without profit?” The price of Gleevec is not determined because Druker needs more money.
“Novartis enjoys a state-sanctioned monopoly on the sale of Gleevec, which will expire (soon – I can’t be bothered to backtrack each and every priority date, but it’s less than 10 years from now). When the patent expires, anyone will be able to make and sell Gleevec” I don’t know how this works, but only Sun Pharmaceuticals, an India-based company, has the license to produce the generic. I don’t know how you get a license to produce a generic, but there you have it. They will keep this license for 6 months, then I think all doors are open. Yes, the price is already dropping.
“The only thing which brings things like Gleevec to market is the US Patent monopoly, which allows Novartis to recover their sunk costs, and a moderate profit …” I agree, but “moderate profit”? Really? It is not moderate at all. According to Novartis, sales last year alone were 4.7 billion dollars. See https://www.novartis.com/investors/financial-data/product-sales
“… to be sunk into the development of the next Gleevec” The next Gleevec is Tasigna, which is 10K as opposed to 12K for Gleevec. The two drugs are both Tyrosine Kinase Inhibitors (TKIs), but they are not interchangeable. I can’t take Tasigna. Again, they have a monopoly on this.
“your ire is, I think, misdirected at Novartis. It should more-properly be directed at the vast and Byzantine bureaucracies which make the time and cost required for developing and marketing any new drug so huge.” I agree with that.
@QET
> That evidence is called today, modernity,
That is a very weak argument. I could equally argue that big government is the cause of today’s wealth since government has expanded largely in lockstep with progress in STEM. On the flip side I can argue that we would be much more STEM advanced were it not for the restrictions of patents. There are perfectly good arguments on both sides.
In science we have a saying — data is not the plural of anecdote.
A smart person could certainly come up with some sort of experiment or data regression analysis that made a determination of patents’ effect on innovation, in fact the GAO did so, and the conclusion wasn’t what you thought it would be. I find if baffling that there aren’t more studies in support of patents, even ones that have been rigged, and I can only conclude it is because people never really think about it, never challenge the status quo. And I think that is largely fueled by the myth of Uncle Fred.
However, as to what we should default to? I don’t think the default should be “current practice” I think the default should be “individual freedom”. Patents are evil by their very nature — any law that says an idea that I came up with, executed on my own, made with my own stuff, and sold to people I convinced to buy can result in me getting sued and having my business destroyed in court just because someone filed a form with the government without me knowing, is fundamentally evil. And to be clear, this sort of thing happens ALL THE TIME, usually to guys like Uncle Fred who busted his butt to make his new widget a success.
Some evils are necessary evils, but before we declare that we had better be pretty sure of that necessity. “It has always been like that” seems to me to be unlikely to console Uncle Fred when all his hard work is destroyed by some evil patent troll.
@Dom – of course I am glad that you are well while taking Gleevec. I spoke inartfully – I should have said that you would be a very sick person indeed were it not for TKIs like Gleevec. Prior to its advent, patients diagnosed with CML had a life expectancy of 3-5 years.
Regarding research costs, the figures you quote, while no doubt accurate, are only for the costs of the clinical research and trials. The total development costs of the drug, from initial research through synthesis, testing, regulatory approval and finally manufacture and production, vastly exceed the cost of the clinical trials.
Regarding Dr Druker, it was your point that he is ‘not receiving the profit’. I suggest that there’s no particular reason that he should. I agree, Mr Shkreli’s complaint about his scientist with the 4 kids is poorly put – but both scientists do need to get paid, and that means there have to be profits – in Dr Druker’s case, those profits would be (partly) from the last successful drug that Novartis sold.
Regarding Novartis and ‘generics’, I think that there may be some confusion. Novartis has licensed Sun to manufacture and sell the generic, and presumably, Sun pays Novartis a license fee. This is within Novartis’s power to do, so long as they hold the patent. But once the patent term expires – again, I do not know exactly when that is, but it is not long – then Novartis loses any property right in the drug and nobody will have to get a license from them to make it. And – since the patent describes exactly how to make it – any suitably-equipped pharmaceutical company will be able to do so. The only license required at that point will be a regulatory license.
Regarding ‘moderate profit’ – the figure of 4.7 million dollars which you quote is for 2015 sales. The real question is – what is their profit on those sales. I suspect you may not have access to those numbers. And what constitutes a ‘moderate profit’ in this arena may not be obvious. It’s estimated that Novartis’s costs to bring this product the market were in the range of 15 billion dollars. They get the benefit of the patent monopoly for perhaps 10 years of actual sales, with low sales = low profits in the early years and (presumably) higher sales = higher profits in the later years. Let’s say that 2015 was the middle year of their sales monopoly. Even if we say that they made a profit of 50% on their 2015 sales, that’s 2.4 billion dollars, out of which they have to pay their stockholders, fund the next development and recover a sunk cost of 15 billion dollars going back over 25 years. Doesn’t seem quite so totally-unreasonable now, does it?
@ Fraser Orr, who wrote
‘But patents prevent me from making and selling things I invented myself.’
No, patents prevent you from making and selling things invented by other people. If you truly invented something, under the US system (until the Congress screwed it up) you had the sole right to the patent and its monopoly.
QET has already made the excellent case that the benefits of a strong patent regime in area like pharmaceuticals are self-evident from the world around us – every pharmaceutical development worth having is now developed and funded by (or in anticipation of) high-profit sales in the US, which are only guaranteed by the patent monopoly. In a sense, the rest of the world rides piggy-back on the US, and gets all these drugs for dirt-cheap once the patent expires, since they do not have to carry any of the costs of research or development.
I have to go. A young pimply man with a gun is telling me that I must now lock my phone and laptop away and come with him. I don’t have the heart to refuse him ;-).
llater,
llamas
Extremely interesting discussion. Thanks, guys. QET, the Slate article was indeed interesting (that word again! but it was), and thanks for that too.
(But I do have to say that Shkreli’s manner in that clip with Cummings does him no favors. Although I suppose it could conceivably be a result of nervousness. Same reaction you see sometimes from a person who’s just received horrible news: A big grin, maybe even a laugh. Pure nervous reaction, but people are full of finger-pointing and denunciations based on the reaction.)
@llamas
> No, patents prevent you from making and selling things invented by other people.
Would that that were true. But it isn’t. If someone “invents” something and registers a form with the government describing a grossly over generalized description of it, and I then, entirely independently, invent something that falls into that wide net, then I am in violation of his patent.
Again, this sounds like some unlikely hypothetical, but it happens ALL THE TIME. Today you cannot bring a product to market without violating some patent or other. Not because you are stealing other people’s ideas, but just simply because most new ideas are reworking and synthesis of older ideas which are often covered by extremely broad patents.
Right now we see insane litigation going on with so called patent trolls. We all throw up our hands in horror. But patent trolls are not some unique species just because they don’t actually make the thing patented. Why does making it somehow make your imposition of my right to invent independent of you somehow less viable? How is, for example, Microsoft who hold gazillions of patents on trivial ideas for smartphones somehow any less of a patent troll than Sleazy Lawyer of East Texas?
> QET has already made the excellent case that the benefits of a strong patent regime in area like pharmaceuticals are self-evident from the world around us
Sure, but any good scientist knows that the self evident can be extremely deceptive. As I said, data is not the plural of anecdote.
> I have to go. A young pimply man
I am sure that were it not for the overwhelming number of patents in dermatitis drugs, not to mention the regulatory burdens of getting drugs out, that competitive pressures would provide materials to provide clean and clear skin for this sorely afflicted pimple face….
There is another side to the patent, quite apart from financial incentives. To get a patent you have to clearly describe how to make or do something novel. (That’s the idea; the implementation clearly falls short.)
The description remains after the patent expires. Perhaps the idea was in advance of what technology could do, and nobody makes any money from the patent. That’s sad. But the idea is still down on paper, and perhaps some day it’ll be put into practice.
And the existence of an expired patent might make life just a little bit harder for patent trolls.
None of this excuses the excesses of the FDA. But one law of bureaucracy is that it’s far safer to say “no” than “yes”. That way nothing can be pinned on you.
I don’t want to get into the whole IP thing, but the Shkreli / Turing Pharm thing has been misrepresented in the comment thread. Please go look at, for instance, Derek Lowe’s posts on the subject, especially the peculiar confluence of the FDA rules on monopolies for such old compounds, and the rules that allow Turing to refuse to sell samples to potential competitors (who must use such actual samples in order to prove equivalence.)
That is, THIS Derek:
http://blogs.sciencemag.org/pipeline/
NOT the American baseball player by the same name.
@Ellen
> There is another side to the patent you have to clearly describe how to make or do something novel.
As you say that is the theory. Download a few patents and read them. They are not technical documents they are legal documents, designed not to explain how to do things but to be as inspecific as possible to broaden the range of coverage.
Consider the text I have copied below, this is typical of the turgid legalese and see if you can work out which famous patent it is. Notice how all the specifics are eliminated and it uses as broad terminology as possible. This is deliberate and by design. You will also notice how dreadful the English is, the first thirteen lines are one gigantic run on sentence. And notice the deliberate omission of most punctuation except for punctuation that is there for specific legal purposes. Patents are full of phrases that have very specific legal meanings and mean very little in terms of technical details. And remember this is from the abstract, the overview that is supposed to be the simple explanation.
====================================================
A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.
2. The method of claim 1 wherein the displaying of information includes displaying information indicating the single action.
3. The method of claim 1 wherein the single action is clicking a button.
4. The method of claim 1 wherein the single action is speaking of a sound.
5. The method of claim 1 wherein a user of the client system does not need to explicitly identify themselves when placing an order.
6. A client system for ordering an item comprising: ….
Can’t argue with you on that, Fraser. I’m more used to 19th-century patents, when things hadn’t devolved to that sorry state. Up until 1880, inventors were required to submit a working model of their invention. Hard to bafflegab your way around that. (The museum I worked at had a few of those models in the collection. Some fine work there.)
Today? The implementation clearly falls short.
Also, I totally want to second Llamas’ point about drug costs and overseas. My British relatives and Canadian friends love to prod at how much cheaper drugs are in their country than the USA. What they don’t realize is that their drugs are cheap because American’s are literally subsidizing them. Really, if you think about it, it is kind of like paying gazillions of dolalrs for your kids to go to college only to have those same kids laugh at you for the junky piece of shit car you are driving….
“Also, I totally want to second Llamas’ point about drug costs and over …”
And I’d like to third it. To go back to gleevec, Novartis sells it for a few hundred dollars in places like India. I have no doubt that the American price tag is subsidizing these other countries.
What Fred the Fourth said. Mr. Lowe’s blog “In the Pipeline” is one of the best things on the Internet. He has covered l’affaire Shkreli in excellent detail. As Lowe notes, Shkreli’s claims to be supporting research are utterly bogus.
“In the Pipeline” is an excellent place to learn about the huge costs, great difficulties, and considerable risks of drug discovery. Lowe has exploded many of the myths about the process, including the claim that government and academy do most of the research.
Pointing with one pointer finger at nose and other at Fraser Orr
This was a really great thread with fantastic comments on both sides (and the middle) of the issue!
What Josh said – I learned a lot, thank you all.
OK, they let me out for a while.
Fraser Orr, I understand only-too-well your issues with the abuses of the patent system, like patent ‘trolling’, the deliberate vagueness of some patents (especially ‘business-method’ and software patents) and ‘submarine’ patents.
But these things are issues of process, not principle. Vague and generally-weak patents are the fault of weak examiners, not of the patent owners.
And for every example you give of the innocent inventor ruined by his inadvertent copying of the patented inventions of a huge and immoral parent troll, I will give you an example, just as real, of an individual inventor who defended his invention rights against a vast and powerful infringer and who only prevailed because of his patent.
I’m not saying that the patent sysrem is always the perfect mechanism to promote ‘Science, and the Useful Arts’ – merely that it’s better than all the others. The US system of first-to-invent was the best of all until the Congress decided to screw it all up as the result of heavy corporate lobbying – which should tell you right there that it was the best system of all for protecting the rights of the individual.
I am interested to know your views on copyright and the state monopoly that provides. Do you believe that authors and creators should have the sole, enforceable right to their identifiable works?
Will be locked away again all day today, so do not assume that silence means I’m done.
llater,
llamas
@ Fraser Orr: I’m under-caffeinated at the mo, but my guess would be Amazon’s One Click wotsit.
I will note, however, that it is a patent for a business process, rather than a machine or a chemical compound. When I was active in IP (some time ago and only in a tangentially related field) there was considerable disapproval in many circles over the US’ habit of granting patents on business processes, much of it coming from the UK and Europe.
Then, iirc, the whole Software Patents issue came to the fore and, while I can’t be certain, I believe that other jurisdictions may have gone the way of the US. Somebody who is more current than I can doubtless tell tell us whether or not that’s the case.
So, this aspect of the problem at least, may be attributed to the corruption of the patent system, rather than to the system per se.
I often have elderly and obscure devices on my bench and, frequently, the patent or patents associated with them provide the only on-line accessible information about how they function. While anecdotal, this illustrates a minor benefit of what one might call traditional patents.
As to “me too” patents, some googling on Albuterol and CFA propellants reveals a particularly egregious example of regulatory agencies colluding with pharmaceutical companies to the detriment of the general public that said agencies purport to protect.
I see that llamas addressed the issue, while I was slowly typing.
@llamas
> I will give you an example, just as real, of an individual inventor who defended his invention rights against a vast and powerful infringer and who only prevailed because of his patent.
But don’t you wonder Llamas, would the world not have been a better place had this Uncle Fred instead of consuming his resources and energies fighting in court had instead continued to use his resources and energy in inventing new things, improving and marketing his existing inventions, exploiting his competitive advantages that we might possibly be better off? It is, for example, a matter of history that the Wright brothers, after transforming the world with their flying machine, spent most of the rest of their lives fighting in court over violations of their patents, and they invented little else after their Kitty Hawk adventure. To me that is a most dreadful waste. Who knows what might have happened if they had instead continued to invent. You will also notice that there are no airlines or aircraft companies today called by their names. Which is a point worth pondering.
> I am interested to know your views on copyright and the state monopoly that provides.
This is a rather different question. Were I to come over to your house with my guitar and tell you that I had written this song, and started to strum and croak out “Purple rain, Purple rain….” then you might rightly suspect that I had not in fact written the song but had purloined it from the now… and it is hard to even type these words… late lamented Prince.
Why? because the probability of me coming up with the same song or novel or painting is pretty close to zero (whereas the probability of me coming up with the same invention is extremely high.) So I would say the case for copyright is stronger than the case for patents.
Having said that I’d rather not. I’d rather we didn’t have a copyright system at all. I’d rather authors and creative people found different ways to make their living than preventing people sharing works of art. After all, let’s just be clear, for nearly all of human history there was no copyright system. Mozart never copyrighted any of his little ditties, neither did Da Vinci or Michelangelo. May I be so bold as to suggest that Ms. Britney Spears doesn’t actually NEED two private jets. Copyright mis-allocates resources in society making many of these people extremely rich (while lesser, more talented musicians make nada.)
So apparently there are other ways to make a living than forcing a false concept of property onto things that bear little resemblance to property. Let me expound on that last sentence. If I own a car, and you steal my car, then I no longer have a car. I have taken a loss. That is the very essence of property. If I have an MP3 of the aforementioned “Purple Rain” and you take it then I still have it, there is no loss, except I suppose the loss that Prince’s estate might have in losing a potential sale.
Now I will also mention trademarks, another form of IP, because I think there is a somewhat related concept here. I think trademark law is good, though overly enforced. That is because trademark law is primarily about fraud more than anything else. If I make a fizzy drink and call it “Pepsi” then PepsiCo have every reason to say that I am fraudulently representing my products to be theirs, and that will impact and damage their reputation. So they have a legitimate claim to the word “Pepsi”. However, why I think it is overly enforced is that they should not entirely control the word. If I create a web site called “pepsi-sucks” or “pepsi-is-poisoning-our-children” then clearly I am not representing myself to be them, and they have no legitimate claim to say that I am.
I think there are certain aspects of fraud law that also apply in copyright, but I have rambled on enough already.
OK, they let me out again.
Fraser Orr, you are right that it would be better if Uncle Fred could concentrate his efforts on exploiting his ideas and developing new ones. But the real world ain’t like that. Without the legal protections that patents offer, individual inventors will always be at the mercy of larger and more-powerful interests who are in a better position to exploit their ideas.
Classic case – Robert Kearns and the intermittent windshield wiper. He invented it – not just the operating concept, but the electronic control system and everything. It was just fabulously elegant. He patented it, then offered it to the major auto manufacturers. He did, just as you suggest he should, and tried to exploit his invention. The auto makers turned him down – and then, a couple years later, they put his design into production.
Without his patent, he would have been SOOL. It’s all very well to talk about competing and putting your invention in the marketplace, but how can a single inventor compete with GM and Ford? His invention was useless until it was part of a car – what do you suggest, that he start a car company in order to exploit it?
When you take away the concept that an invention is a property right of the inventor, and that copying it amounts to theft, you take away any incentive to invent. In that sense, patent is exactly like copyright. In the comparison, you suggest that copyright is somehow justifiable because it is so unlikely that you would independently come up with the exact-same work of authorship as another, but patent is not, because it is very likely that you might independently come up with the same invention as another. That may be so, but what has the probability of doing something got to do with it? You might as well aver that the owner of (let’s say) a gold mine has no more right to it than anyone else – he was just the first to find it, another person might just as well have done so, and therefore has the same right to it as he does.
As to your complaint that patents are complicated and written in difficult language – well, yes. They are because they have to be precise. Just now, you were complaining that patents are too vague, now you are complaining that they are too precise. Which is it?
I stand by my contention that defining ‘new, novel and unobvious’ inventions as an individual possession, in which the inventor has a defined and exclusive property right for a limited period, is the best means yet devised to promote ‘Science, and the Useful Arts’ to the eventual benefit of all. The alternative suppresses the freedom of the individual to sell and trade the fruits of his intellectual effort, which are in many senses no different than the fruits of his physical labor. The difference is that a man’s intellectual labors can often be taken from him without payment or effort. If you allow that to occur, without redress – if you compel a man to give away his intellectual labors for free, to anyone that wants them – then why would he labor at all?
The ‘freedom’ you seek is the freedom to profit from another man’s prior intellectual labors, on the grounds that you did not know they were his. You can never prove that you did anything other than copy his work, so you would like to reap the benefits based solely on your word. You wouldn’t tolerate the appropriation of another man’s physical property on that basis – why would you tolerate the appropriation of his intellectual property?
Does the patent system have problems? Of course it does. But the problems are in the system of administration – not the concept of patent itself.
llater,
llamas
llamas, regarding your comment that “The US system of first-to-invent was the best of all” and other reference(s?) to the Patent Act of 1952, have you heard Richard Epstein on the subject? He’s firmly of the opinion that the “two guys who wrote” the 1952 Act were pretty close to right, and that the idjits who meddled with it more recently messed it up royally.
. . .
Now, what about the Wrights’ rights as using up valuable time that might have been better spent providing the rest of us with additional useful stuff….
https://en.wikipedia.org/wiki/Curtiss-Wright
“The Curtiss-Wright Corporation is an American-based, global diversified product manufacturer and service provider for the commercial, industrial, defense and energy markets. Born in 1929 from the consolidation of Curtiss, Wright (founded by the Wright Brothers), and various supplier companies, by the end of World War II it was the largest aircraft manufacturer in the United States, supplying whole aircraft in large numbers to the U.S. Armed Forces.” [SNIP]
So maybe they didn’t go on to invent the Lunar Lander, or Google, but it’s not clear that they added little of physical use to mankind after Kitty Hawk — even if only indirectly (which may or may not be the case).
But perhaps their efforts to see that their patents were honored has helped all of us, in some small measure, to retain whatever freedom we, as individuals, still have to profit (both financially and otherwise) from the works of our minds and our hands.
@llamas
As you say the case of Robert Kearns is a classic case, if I’m not mistaken they made a movie out of it.
However, I see this whole situation rather differently that you. You see the little guy offering his idea, and then years later the auto companies stealing it. But that entirely assumes your conclusion, that an idea is property, something I reject, because it doesn’t have the same attributes as property.
Why did Kearns have a right to control this idea? Why did he have precendence than some engineer at Ford that might well have come up with the idea the next day? (Though I am not saying that happened, I don’t know.)
Let’s be honest, it really wasn’t all that innovative. Everyone who had ever driven a vehicle in the rain had manually done what his machine did. That isn’t so much to put him down as to say that the idea was largely an inevitable discovery. So why should he, who happened to be the first to articulate it become rich off of it. You say he built the control circuitry. But any decent EE could do that in a morning, it isn’t very complicated.
You might say that hindsight is 20/20, but really, honestly, this is not some brilliant new insight, it is a small synthesis of existing ideas.
He comes to the car company with an idea and a working model and somehow that obliges the car company to him forever? I don’t see it at all though I do agree it was kind of rude and scuzzy.
This is the way I see what you are saying: Kearns brought an idea and a working model to Ford and said: you, Ford, here take this, develop it into something real, harden it to work in an automobile, redesign your cars to accommodate it, create the plants to manufacture it, then distribute it and market it, and take ALL the risk as to whether people will want it or not, invest all the necessary capital to make it happen, and then give me a big fat royalty off all your work.
That doesn’t seem very fair to me at all. And the fact that this patent forced Ford to pay this big fat royalty anyway irrespective of the fairness of it to me is an indictment of patents not advocation of them.
It is all based around the principle that ideas are a dominant portion of product creation. My head is full of hundreds of ideas for new products. But you don’t see a shelf of Fraser Stuff at the local store because the really hard part of product creation is engineering, raising capital, marketing, partnering, manufacturing, etc. etc. etc.
But what could Kearns have done instead, in a world without patents? Let me offer two options off the top of my head. Though if you are trying to make your fortune of your idea you might think pretty hard about this question, in fact as hard as you did about your invention. As they say, 1% inspiration, 99% perspiration.
One thing he could have done is that when he brought the invention to Ford, he could first have signed a contract with them to ensure they would pay him for it if they used it. Now of course a little guy often has a hard time doing that without giving up the goods first. But in the absence of patent law this problem, basically a transaction cost problem, would surely solve itself. For example, agencies could arise to disintermediate. They could have inventors bring ideas to them, and the agency would sign that contract, then the agency could sign an agreement with Ford to cover all the ideas en masse. The agency needs trust and reputation at both ends and so would be strongly incentivized not to cheat, and of course everyone is covered by legal agreements that anticipate things like two inventors bringing the same idea.
These agencies (largely) don’t exist because patent law stands in the way of them: people think their patents act in the same way, which, generally speaking they don’t. (Kearns was very lucky to be successful. Most of the time things don’t work out that well.)
Second thing he could have done is not go to the car companies at all. He could have got some investors and created a retrofit kit to allow existing cars to have intermediate wipe retrofited. He could have marketed this to the public to work with any car. He could have done deals with garages to make them “Qualified Intermediate Wipe Fitters”, and he could slowly have built up his business. Eventually the car companies would duplicate the idea, but there would be a pool of used cars to work with even after every new car had the feature.
This would allow him to build up his business and make some capital, allowing him to use that to further develop his next invention, which he would similarly grow. Over time his business would become bigger and bigger and he would retire comfortably without using the oppressive patent system.
Would either of these ways work? I have no idea. They are both a lot more work that dumping your idea at a meeting and saying “give me a check for thirty million.” But business is hard work. Business is risky. Business does require you to put your capital on the line.
Invention is a lot more than coming up with the latest widget or googah. Part of it also is working out how to take that item, market it, sell it and make a profitable business out of it. Sometimes that involves partnering with others through legal agreements, sometimes it requires blood sweat and toil. But the idea that you can shortcut the whole process by an evil imposition of patents on everybody is repugnant to me.
@Julie
> to retain whatever freedom we, as individuals, still have to profit (both financially and otherwise) from the works of our minds and our hands.
I find the words “freedom” and “patent” in the same sentence discordant. Patents are the opposite of freedom. They are a legal mechanism to prevent (or at least to allow legal recourse) against someone else for using the works of their minds and hands.
A world without patents allows everyone the right to profit from the works of their minds and hands. But they can only do so if they do an excellent job, and convince other people that said work is worth paying for.
It is as American as mom and apple pie.
I’m with Fraser on this, and the contract model was the first to come to my mind as well. The second model suggested by him was less obvious to me, but seems just as plausible. I have to stress though that Fraser’s points in no way negate the validity of intellectual property as a concept (in fact, I’d argue that all property is intellectual in its essence), and that the difference of opinions represented here and elsewhere in free-market circles is on implementation and enforcement, not on the concept itself.
Travelling transcontinental. Probably not until tomorrow, but I have much to say.
llater,
llamas
I’m with llamas on this. Fraser’s alternate strategies might work, but would be poor substitutes for patent protection because there is absolutely nothing to keep rapacious auto companies from buying one of the retrofit kits (or a competitor’s car), reverse engineering the device, and bringing it to market on its own. The inventor gets shut out.
Intellectual property is every bit as much the property of its creator as is physical property. In fact, I would argue that it is even more deserving of legal protection, because creative thought is a quintessentially defining human attribute. Any animal can pile some sticks together for a residence; it takes human thought and creativity to discover better ways of doing so. As llamas says, whatever defects there may be in our patent (and copyright) laws, and certainly there are many, are flaws in application, not in the concept itself. Providing a limited (in duration) legal monopoly on the product of a man’s intellect is an elegant solution.
Laird, I’d be very interested to see a discussion on the merits or downsides of different models for implementation of IP as a concept, among people who in principle agree on its validity.
Busted flat in ABQ
Waiting for a plane . .
Fraser Orr – I understand your suggestions for alternatives. But – really? What you are proposing makes no sense to me. Why would anyone invest in a string of intermittent-wipe installation shops? It’s a business with no future, because in a year or two, Ford and GM will be offering intermittent-wipe on every new c ar they make (there being nothing to stop them doing so) and in 10 years, there will be no business left. I wouldn’t invest in that. Would you? snd our inventor must now find investors and set up a business and get it running, all while fending off the 1001 people intent on copying his invention to their advantage. And this is supposed to make it easier for him to come up with his next great idea?
Your proposal reminds me of many other ideas put forth by hard-line libertarians who claim that state action is always 100% bad and that everything in life can be solved by private contracts. But this thinking always overlooks the inherent power imbalances that exist in life. In the particular field of invention, patent removes those power imbalances, and provides a property right in intellectual endeavor that approximates to the property right in many other endeavors. Just like copyright – of which, oddly enough, it seems you approve. It’s not a perfect system, it’s just better than all the others.
The proof is in the pudding. Nations with strong and enforced patent rights always lead in development, and the chances of an individual or a company growing rich as a result of their intellectual labors is far greater in those places.
Nations with weak or unenforced patent systems either do not innovate at all (why would you?) or innovation is controlled by whichever state powers or private plutocrats happen to hold sway at the time. Vide China, or Russia. Those are the places where the concept of provate exploitation that you prefer holds sway – seem to you like a good model to follow? In fact, of course, in these places, the only thing that gets exploited is the inventor, which is why these places do so little innovating.
I agress that the US,patent law of 1952, under which I did most of my patent work, was the best development of US patent law. It all wnt to hell in the early 2000s, under the influence of big-business lobbying of the Congress.
Gotta go, closing doors now.
llater,
llamas
Uh-oh. Plane broke. Maybe here forever.
Posts not up to usual standard because done on phone. Will try to do better.
llater,
llamas
Sorry to hear that, llamas. If you end up being there overnight, the Taj Mahal does a decent Tandoori lamb.
Could somebody, please explain why the protection under copyright regulations is so much longer than that under patent regulations in the US?
Cristina – it’s due primarily to the Berne Convention, which the US belatedly signed up to in the 1980s.
@Laird
> Fraser’s alternate strategies might work,
Yes, they might, they might not, I just came up with them off the top of my head. It is the responsibility of the inventor and whoever he works with to come up with an effective business strategy. My point was not “this is what Kearns should have done” but rather there are ways that a little guy can be successful without the gross hammer of patents.
> but would be poor substitutes for patent protection
Certainly. But my point is that the patent system in this case grossly mis-allocated resources. The guy came up with a fairly obvious idea and a simple working model and the courts awarded him the lottery. So the patent system worked too well in his favor, would be my argument.
> because there is absolutely nothing to keep rapacious auto companies from buying one of the retrofit kits (or a competitor’s car), reverse engineering the device,
So Kearns would have to compete with them? He would have to use his competitive advantage (in this case most obviously twofold, first to market and the fact that he is flexible competing with a sclerotic old car company — remember it too them three years to “steal” his idea.) That is the free market, and it is a GLORIOUS thing, not something to lament.
> Intellectual property is every bit as much the property of its creator as is physical property.
I honestly think you don’t believe that. Title on physical property does not expire, but everywhere IP exists title does expire. If you wanted to open a sandwich shop do you think you should have to negotiate a royalty contract with the heirs and successors of the guy who first thought of the concept of sandwich shop 400 years ago? After all, you do have to negotiate with the heirs and successors of the guy who first owned the piece of land on which you intend to put your shop?
If your answer is no then you must acknowledge that physical property is fundamentally different than so call intellectual property. It is fundamentally different than physical property and it is different in the specific attributes that give rise to the laws of ownership we have. Specifically, physical property is a limited resource. Only you can build a sandwich shop on that piece of land. However ideas are not a limited resource, hundreds of sandwich shops can be built all over the city without taking away your ability to sell sandwiches (except, of course, that you have to make really good sandwiches to make people come to you rather than somewhere else.)
> In fact, I would argue that it is even more deserving of legal protection, because creative thought is a quintessentially defining human attribute.
But the very nature of patents is to take AWAY people’s right to implement their thoughts. In a world without patents you are absolutely at liberty to implement your idea, you just have no right to interfere with my ability to do so. You have to make your business a success by being better than me, offering better services and products, convincing people to buy. That is the free market, and again, it is a GLORIOUS thing.
The nature of patents is to take something that is a free and unlimited resource (ideas) and deliberately make them a limited resource for twenty eight years. The purpose of a patent is to stop me from implementing my idea if, by some scuzzy legal process, it happens to be sufficiently similar to your idea, even if I have never met you, you have never implemented your idea, and I have no way (save searching through eight million impenetrable, turgid legal documents) of knowing that my idea that I just came up with is not mine after all.
Your high words about quintessential human attributes do not recognize the fact that the purpose of a patent is to specifically deny that very thing to the second person to come along.
I will get back to airport bound Llamas later. I hope he can survive on overpriced airport peanuts and burned free coffee in the meantime…
Indeed. If all what patent laws did is make sure that people do not actually steal someone else’s ideas, I’d be entirely comfortable with that – but that would put the burden of proof on the prosecution, just like with any regular theft. It seems to me that the opposite is true in the way the current patent laws are written – i.e. the burden of proof is on the accused to prove his innocence.
Fraser, on IP as a concept: what if you had a vacation home that you didn’t use during winters, and I’d somehow got in, got out, left everything untouched, etc. You would have no way of knowing, except that it would be perfectly legal, and so I made no attempt to hide the fact that I did, the neighbors saw me and told you. You still have your vacation home, you are free to keep using it, etc. I really am asking – I’m sure some people wouldn’t mind, while others would. Just trying to put the finger, mostly for myself, on the fundamentals of the different ways of thinking.
BTW, I brought the house (car/land/whatever tangibles) example only because you seem to have brought it as an argument against IP as a concept (as is often done) – if you have a different argument to support that position, I’d be interested to hear it.
Thanks, the other rob. It seems to be the same for all the signatory countries. Is it so because the scientific and technological creations are less valuable to society than the arts?
@llamas
> Why would anyone invest in a string of intermittent-wipe installation shops?
I don’t think that was my proposal, I think it was that they make kits, and perhaps get garages to offer them in addition to individuals doing the retrofit themselves. As I said, even if they did appear on all new cars in a couple of years, which seems pretty unlikely, these things usually start at top level cars and work down over time, there is still a huge retrofit market of used cars. He might not make his $30 million, but it may well be a viable business. Of course I don’t really know, I am just throwing out some ideas. The inventor needs to come up with a way to finalize the design, manufacture in sufficient quantity, organize the supply chain, perform the advertising, fulfill the order, etc. etc. I say that by way of pointing out that an idea is a very small part of a new product, and one wonders why lottery payments are due for that small part without the sweat equity of the other parts.
Remember, people make a living manufacturing curtain rails or candy bars — no patents needed, just hard work and good planning.
> and in 10 years, there will be no business left
There is only “no business left” if he does a horrible job planning his business for the future. However, if he stands still and doesn’t innovate, market, invest and all the other things businesses do then he deserves to have no business left.
> In the particular field of invention, patent removes those power imbalances,
I think you are exactly wrong about this. It might have happened in the case of Kearns that he managed to over monetize his idea, but remember that the VAST majority of patents are created by lawyer farms in huge companies. Patents are not, as a general rule, the tool of Uncle Fred. They are a tool of big business frequently used to crush Uncle Fred, or more likely that middle ground of business who are beginning to thrive but haven’t yet got the capital to hire an army of lawyers.
There is indeed a power imbalance in life and patents, generally speaking, make it worse not better. People often talk about economies of scale, something that undoubtedly exists. However, there are also huge diseconomies of scale too. The most important one being that large companies become sclerotic as they get more and more management layers, and more and more people playing politics and internal empire building, and less focusing on the purpose of the company.
This is the huge advantage of small businesses — they are nimble and adaptable. It is why growth primarily comes from small businesses. And patents are very dangerous to small businesses because those sclerotic monsters have armies of lawyers pumping out patents which can be used by their slow moving processes to catch up and totally crush that small business racing ahead of them.
> Nations with weak or unenforced patent systems either do not innovate at all (why would you?)
Are you thinking of China? China has very weak IP laws and they are kicking the butt of old sclerotic America for the very reasons I mention above. You think there is no innovation in China? I beg to differ. Certainly the world community is trying to drive them into line over IP, but again for the exact reasons I mention above, because the butt kicking is tiring them out and they want to get that Speedy Gonzalez, China, back into check.
@Alisa
> Indeed. If all what patent laws did is make sure that people do not actually steal someone else’s ideas,
I’m not sure how that would work, but I’d be open to understanding more about what that means. But when something is public, it is public…
> Fraser, on IP as a concept: what if you had a vacation home that you didn’t use during winters,
I also think this is a really interesting question, and I’m not sure I have an answer. Except to say this: the scenario you propose is unlikely. How can you use a house without consuming it. Every time you sit on my sofa you wear it out a little. Every time you turn on a light, you use my electricity, every time you flush the toilet, you use my water. Every time you stay there you make it more difficult for me to jump on a plane and take a quickie winter break. Every time you open a drawer, or look at my refrigerator door you violate my privacy.
But I think a better answer is simply this, maybe you can squat there and nobody would know, but a hundred people can’t squat there. Ideas are beautiful. They spread for free, and more and more minds work on them making the world a better and better place. My house might be slightly sharable, and the cost of sharing might be made small, but it is nothing compared to the degree to which ideas can be shared abundantly, and shared with effectively no cost at all.
Well, there is nothing private in that house since you don’t use it yourself, but occasionally rent it out. And, I didn’t really squat – I got in and got out in no time. The only point being that this is your house, and I got in without your permission, with the physical wholeness of the house being beside the point.
OK, so I think I got the answer. I obviously disagree, as cost is entirely subjective, as is value, and the individualist in me says that for civil society to work, subjective valuations must be respected, even if other members of society may gain less as a result. Although of course and as I noted earlier, this is discussing the mere concept of intellectual property, with application, let alone enforcement, totally aside (that is where I am in greater agreement with you).
Just as with any other complaint about theft: the prosecution would have to present evidence showing that Mr. Little Guy broke into offices/computers of the Big Bad corporation and stole the files they use to manufacture the Widget in question – otherwise, tough luck to the Big guys. I know Llamas objects to this, but I tend to disagree with him on this point.
Back safe at casa llamas, and find I don’t actually have much more to add, what with Laird and Alisa and all. We’re gradually disappearing in a vortex of ever-more convoluted hypotheticals, and it would seem that my basic belief – that intellectual property (whether it be writings, or artworks, or music, or other products of the creative faculties) is just that – personal property – and that, like all other personal property, it is both right, and effective, that laws be made to protect the rights of ownership – is not shared by some. Oh, well.
llater,
llamas
Again, I agree with llamas. Arguing with those who oppose the concept of defensible intellectual property is as pointless as arguing about theology; no one is going to be persuaded to change his opinion. I regret permitting myself to get sucked into this discussion; usually I exercise more restraint. I’ll just say that I disagree strongly with Fraser’s arguments (indeed, I consider them silly), am glad that they aren’t widely shared (so we actually do have intellectual property protection, however flawed in application, in the US), and will excuse myself from further participation in this thread. I have better things to do.
I would like to register my agreement with llamas, Alisa, and Laird. I am very hard-core when it comes to what we call IP: Your property is properly yours or your heirs or “assigns” (if I have the legalese right) in perpetuity. Just as a piece of land or a piece of art or a kitchen kettle is, properly, recognized as its current owner’s rightful property, if the chain of acquisition can be shown to have been unbroken since its (the chain’s) beginning.
I know that’s terribly badly put, but I hope people can figure out what I mean. In the simplest case, the old family pile has provably been passed down through the generations since Throckmorton son of Suetonius built it in 44 A.D.
If at some point the chain becomes broken (B had it, and then later C showed up with it, but it’s not clear that B gave it to C in voluntary trade or as a gift), or the IP seeps out into common public use (yes, it most likely will, eventually), then statute law can be written to put it legally into the public domain, and also to define some reasonable criterion for its removal to the Commons.
And statute law can try to deal with the problems that will inevitably come up in the real world. But statute law ought always to recognize that all property originally issued from the life of some individual, and as such it was properly his, meaning that he alone had the right of its use and disposition.
(Yes yes yes, if I invent the Mauser and then use it to off some no-count nitwit who dares to disagree with me on an Internet board, I am out-of-bounds and have lost the right to both my Mauser–my property–and my life. Etc. etc. etc.)
. . .
The point is that the “scarcity theory of property” is bilge, just as much as the Labor Theory of Value.
a) Property in land or the fruits thereof is at first found; it becomes earned (made valid property) because someone has at least put in what’s considered a justifiable claim to it; let’s leave Locke and “mixing labor” aside for now.
b) Other property comes into existence because someone has put a portion of his life into the making of it. A portion of his irreplaceable time, and of his attention, his effort, and the physical labor of his body (even if he’s nearly completely paralyzed and can only dictate his magnum opus, he’s still exercising his physical brain and his vocal cords).
That’s what makes his property his. And that’s what gives it its moral status as property.
Economics and public good and whatnot have nothing to do with it. Because property may or may not have any economic value. I still have the Mother’s Day artwork that the Young Miss made for me in First Grade. It will never hang in the Louvre, but it’s precious to me. It is my property, and if anyone tries to expropriate it they will find how wrathful a mother tiger can be.
Well, I hope it’s clear that I mean the original owner had the sole right of control and disposition over the property until he passed some or all of the rights associated with it on to someone else, voluntarily; at which point that person had those rights in property and was the proper and rightful owner. I hate having to be so careful, but of course I could will my piano to the Young Miss, but with the proviso that she may not sell it. So she would have nearly complete control over it, but not total control.
The issue of whether statute law permits X to be held subject to certain constraints in perpetuity is beside the point. I’m talking about how it should work, at least ideally, and not about what current law specifies.
And since it came up, the day will never come when man-made law will always be completely correct, that is, consonant with the moral law. We can only do the best we can. But we do try, I hope, to hit close to the mark.
@Julie near Chicago
> Your [IP] property is properly yours or your heirs or “[j]ust as a piece of land or a piece of art or a kitchen kettle is, properly,
But that isn’t true in any legal system I know of. Your intellectual “property” is yours only for a very short amount of time, especially so in the case of patents. So I’d pose to you the same question I did to Laird — were you to open a sandwich shop would you need to license that patent from the heirs of the first ever sandwich shoppe back in Merry Olde England? Do you need to acquire a rental agreement to that property in the same way you need to acquire a rental agreement for the piece of land on which you place your shop?
Do you believe patents should be for a limited time only? If not, doesn’t that make them fundamentally different than land or art or kettles?
> b) Other property comes into existence because someone has put a portion of his life into the making of it.
But Julie if you put a portion of your life into creating some useful widget what right have I to deny that property to you just because I happened to patent it ten minutes before you began all your efforts? I agree that the labor of your hands (or your mind) should be your property, but patents specifically deny you that right in some cases, and it is that which I object to.
In a land without patents you can use your talents, energy and mind to make whatever you want. It is only in a land with patents that that right is denied you by the misfortune of you being the second person to do so, even if you do so entirely unwittingly.
To an argument to the effect that there is an injustice to Mr A who has spent 31 years, sold his home, broken 2 of his marriags and through stress inadvertently run over his dog inventing a means to achieve X only for Mr B to patent X after a few weeks research but a month earlier than Mr A, there is a simple answer.
You speculated and failed.
Mr A’s discovery is not apt for patent protection as it lacks novelty. If it is an alternative to Mr B’s method, it might be worthy of protection, if it is the same, then there is always Hamlet, the mild cigar.
Have I simply missed it, or has this thread not yet looked at books and copyright as a way of analysing patents by comparison.
In Victorian times, US copyright law was notoriously lax. Gilbert and Sullivan were annoyed to discover that the most trifling variation of musical style or a few words – the inclusion of one song in negro spiritual style, for example – was enough to allow the Mikado to be staged in the US with no profit accruing to them. Legal means of fixing this were found. These days, J.K. Rowling gets royalties from her US sales, even if the printing uses US spellings or whatever.
At the same time, you can abstract the plot idea of a book to a point where it is not covered by copyright. Having to review some 500 books that were mostly 3rd-generation rehashes of elements from Tolkien (mostly written by women living in California whose university courses clearly lacked Tolkein’s own knowledge of either the past or its literature), caused Dianna Wynne Jones to write ‘The Toughpick Guide to Fantasyland’ – see her witty essay http://www.leemac.freeserve.co.uk/medieval.htm for the gist of it. And we’ve all seen episodes of SF series or cop shows whose plot twist was stolen from some recent film – or sometimes some ancient B&W film. Copyright lasts for 50 years in the UK and forces imitators to abstract right back to the 1% inspirational idea that must be followed by 99% perspiration before a book appears.
Patents, like all else government does, are an imperfect way to protect either the 1% inspiration or the 99% perspiration that make up a practical invention. The US inventor of TV was deprived of his rights by a US court that laughably lacked understanding of the issues it judged. (And here in Scotland, there is enough arrogant ignorance around that the ridiculous John Logie Baird is touted as the ‘inventor of television’, though his unworkable scheme was lacking in both the 1% and the 99% departments.) But saying government never does anything that well, though very important to know, is not alone quite enough (for a non-anarchist) to say it should not be attempted.
Software patents are notoriously ill-written and over-inclusive (I hold several and I know). The purpose of many today is defensive – the existence of software trolls and the possibility that an inter-company dispute might stray into s/w patent territory forces firms to acquire a defensive portfolio – “If you sue us over your vague over-claiming patent, we’ll find something in our patent portfolio we can sue you for”. So, like ambulance chasers, there’s a very real problem there which needs solution. My impression is that h/w patents do not suffer from the same abuse, though they too could benefit from a cleaner system. The ‘vigour’ of the law’s requirement that a patent exhibit non-trivial originality was once explained to me in the words “Remember, the guy who thought of having a mobile phone’s ariel project down from its base, not up from its top, managed to patent that idea.”
Fraser, I’m not talking about what present statute law is for property, property rights, so-called “intellectual property.”
What I am saying is that what we call “property” comes into being as the result of time and effort and a portion of a person’s life put into the making of it. (Or a part of it, blah blah, I’m trying to keep this as simple as possible.) That person is its rightful owner at the outset, and that person should have the right to use it or not use it or to give or trade it away as he sees fit, as long as he doesn’t use it to do violence or commit fraud, of course.
It is the proper — proper, not necessarily actual — role of statute law simply to see that the person’s right to his property is protected, and that includes his right to use it or not as he sees fit, and to trade or give it away, at which time someone else becomes the owner of the property; and since he receives it at the behest of the originator, he also receives all the rights the originator gives him. Then, since they are now his, he has the right to use or not use, to trade or give away, with all or some of the specific rights the original owner passed on to him. And so on, yea unto the umpteenth generation.
Thus, yes, property should properly be recognized as owned by its owner or his heirs or assignees (?) as above, in perpetuity or for as long as the chain of ownership remains provable at each link.
No, that is not the way IP law is written nowadays, nor was it at the time of the Founding. I think that’s because everybody is so fixated on the economics of inventions (even more than books and music and art) that they don’t and didn’t entirely recognize the fact of the human condition that what we call “IP law” deals with.
When I was a girl I learned to sew (well, sort of anyway). In those days the big pattern companies were Simplicity, McCall’s, Butterick, and Vogue, in order of decreasing popularity and increasing price and glamour. I took it for granted that when you bought the pattern it was yours, and if you wanted to use it to turn out pounds of dresses to sell, you could. I was astonished and outraged to discover, somewhere in my late teens, that Butterick forbade you from doing that. What the hey is this! I bought it, so it’s my pattern, and now you’re saying I can’t use it to make things to sell??!!! Have they got a noive! We been ROBBED!
Only not, of course. Butterick was just saying that they were selling you the pattern with the understanding that it wasn’t to be used for commercial purposes. In other words, it was a form of licensing. I’m ashamed to say how long it took me to figure that out.
But there’s nothing wrong with it, as long as it’s not sold under false pretenses (and it wasn’t: Statement was right on the package and perfectly readable). It’s actually a licensing arrangement.
There’s nothing wrong with selling a product with the understanding that the buyer is not getting an unlimited right of use: That, essentially, he’s buying the physical item and a license to use it in whatever ways are specified, or in whatever ways are not specifically prohibited.
If someone asked me how what the law should ideally say about the situation where there are two products not differing materially but thought up and made by different people, it seems sensible to me to uphold the patent right of the first comer to sell it under license (assuming it met the various criteria for a patentable product, including that of “novelty”), but to protect the property right of others who think up and make a similar product strictly for personal use.
Yes, there’s lots of room here for the devilish details. How does Y prove he didn’t simply take X’s ornithopter apart to see how it’s made, and then copy it? Hanged if I know. Suggestions would be welcome.
Anyway, law is another engineering discipline, so the problem is to fashion law that will come as close as possible to achieving the ideal while understanding that, in the real world, such achievement will never be possible and compromise with perfection will always be necessary.
(An example of this is the actual restrictions on the use of legally held property, such as that your perfect right to use your gun as you please doesn’t include your right to use it on your hubby because he ran out all the hot water again. Another is that the right of free speech does not extend to the protection of speech made with the intent to defraud.)
. . .
At least, that’s how it seems to me.
I think that’s it, too. It’s that common-good trap again, and I’m afraid Fraser’s ultimate argument here is driven by it as well, only from the other end.
Here I am with Fraser. I would put more onus on the (known) original inventors to take steps towards protecting their ideas by way of contracts, licenses, etc. – just like that dress-pattern maker did (and like the current entertainment producers are doing, although they are lagging technologically, thus finding these tools ineffective, and consequently are using the violence of the State in an effort to remedy that from their vantage point). Then if an earlier inventor can practically go after a later one, proving that the latter actually was party to any such contract or voluntary user of any such license, etc., without any undue imposition on the rest of us, that’s great – more power to the former, and shame on the latter. But I do very well realize that such a solution cannot always be practical, possibly even rarely so. That’s unfortunate, but I’d rather have that, than having said imposition on the rest of us – which is the way things are now, as far as I can tell.
Alisa, Fraser, Mr Ed, Niall:
Alisa, 🙂
And that goes double for your dislike of “for the common good” arguments. More :>)).
It occurs to me that perhaps Y, who has taken apart his Caterpillar bulldozer to investigate its little insides, and decided to make
a copyone just like it for his own personal, private use, ought not legally to be considered to have infringed on Caterpillar’s patent on the thing — unless, of course, it’s part of the terms of sale on the original tractor that this is prohibited.Something like “Fair Use Doctrine” under (American) copyright law? I’m not sure.
. . .
Fraser, in an ideal world everybody would know exactly what is and isn’t his, and would behave accordingly purely voluntarily and with full understanding and complete knowledge, so there would be no need for laws enacted to enforce (or at least enunciate) property rights and their limits. In such a world, I agree with you…absence of (statute) law would be better in general than its presence, and in particular IP law, covering inventions, works of art or scholarship or instruction, and trademarks. (The same goes for fraud, murder and all initiations of force or the threat of it, of course. It would be a statute-lawless world, whoopee!)
Unfortunately, not everyone is recognizes the validity and moral status of so-called IP; among those who do, there are perfectly legitimate disputes as to where the boundaries are and whether they’ve been crossed; and, of course, there are always the folks who simply don’t care. In other words, more-or-less unrepentant thieves.
So…there we are. In world upgraded from this one, yes, no patents.
It would seem that we have no particular disagreement here.
. . .
Also, Mr Ed points out the real-world situation where the various inventor-builders’ rights to profit by putting their product on the market are at issue. His point is that it boils down to “who got there first.” Well, this happens all the time; it’s a big part of business competition. He concludes that the right way to look at the various inventors-builders of the various highly-similar versions is that they are in the position of speculators, just hoping to get to market first with their product.
That seems reasonable to me.
. . .
Niall, yes, good comment.
As for patent trolls, I am currently agnostic. Prof. Adam Mossoff of George Mason U., who is also an attorney specializing in property and especially patent law, and an Objectivist (of whatever sort), has a video out on UT of a talk he gave in 2014 at the Ayn Rand Institute, entitled entitled ‘The Smartphone Wars and “Patent Trolls” – What They Mean to You.’ He discusses “patent trolls” at some length. The URL starts with the usual UToob.com, and continues
/watch?v=uXi30baOH9o&spfreload=10
About an hour and a quarter. Recommend the whole thing, but he deals specifically with “patent trolls” beginning ~ 29:18.
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Prof. Mossoff also wrote a short piece last Fall, in response to a piece from The Washington Post, entitled “A third of the economy is at stake — and patent trolls are to blame,” [sic re capitals] by James Bessen and Michael Meurer. It begins,
Interesting piece, with several links, including one to an article from the Cornell Law Review entitled “Analyzing the Role of Non-Practicing Entities in the Patent System,” which includes a review of the Bessen & Meurer article. Download from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421 .
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By the way, Prof. Mossoff agrees that the Scarcity Theory of Property is wrong on grounds not too dissimilar to mine — depending on his precise meaning of “production” and “useful.” He has an article on this, “Why Intellectual Property Rights? A Lockean Justification” at
http://www.libertylawsite.org/liberty-forum/why-intellectual-property-rights-a-lockean-justification/ .
From the article (I put a highly pertinent comment on Locke’s meaning of “value” in boldface, though I’m not 100% sure that even that satisfies me):
This is really an excellent article, say I.
. . .
Fraser, in an ideal world everybody would know what is and isn’t theirs, and would behave accordingly, so there would be no need for laws enacted to enforce (or at least enunciate) property rights and their limits. In such a world, I agree with you…no (statute) law would be better than (statute) law in general, and in particular for inventions, works of art, trademarks.
Unfortunately, not everyone is willing to recognize the validity and moral status of so-called IP; among those who do, there are perfectly legitimate disputes as to where the boundaries are and whether they’ve been crossed; and, of course, there are always the folks who simply don’t care. In other words, more-or-less unrepentant thieves.
So…there we are. In an ideal world, yes, no patents. But that’s not the world we’re in.
Well, I knew there’d be at least one necessary correction. Please ignore the final comment addressed to Fraser, which should have been deleted. 🙁
Alisa,
–Adam Mossoff, https://fee.org/articles/arena-archive/intellectual-property-rights/
You are not alone. ;>)
Fraser Orr, I am pretty much in complete agreement with you but I feel your Claritin example is a little weak. The generic of Claritin (loratadine) is available over the counter (it’s a bit of a crappy allergy medicine in any case, the dose having been reduced to near ineffectiveness in order to be able to say it can be used without inducing drowsiness).
Rather, there are several drugs which having had their patents expire, the drug companies have worked to make those drugs unavailable to the public, prefering to sell minor modifications at the same old high prices. There is one in particular that stands out, and asthma medication, ostensibly banned for CFC use which could have been reformulated without CFCs, available for a few $ on the dark markets but its replacement in the high double digits.
http://motherboard.vice.com/read/why-i-had-to-buy-my-wifes-inhaler-on-the-dark-web
Fraser, is that the infamous Amazon one-click patent?
Too much to deal with point by point (as Julie will know, today we Chicagoans had a very rare day of almost perfect weather, so I took full advantage.)
I will deal with what I think are the points that I am apparently not conveying well because they keep coming up.
First of all, in regards my alleged undermining of property rights, I’d say exactly the opposite is the true. I am a passionate advocate that the work of our hands and minds belongs to us. My problem is that advocates of IP want exactly the opposite of that — they want to deny to the second person the right to use his ideas, irrespective of whether he “stole it” or not. I find that utterly repugnant to property rights.
Second, there seems to be some idea that I am advocating the good of the collective over individuals. Nothing could be further from the truth. The very idea of patents is one of advocating the collective over the individual, specifically giving monopoly on ideas to individuals based on the belief that that will motivate them to advance science and arts for us all. I think that the collective should always be subject to the freedom of individuals to act as they see fit with their own property. Patents are absolutely a collectivist notion, whereas I am advocating again for individual freedom.
Julie, I did not have the time to watch the video you posted, but I do want to make clear that I don’t think patent trolls are worse than any other patent holders, I think they are all patent trolls. The only difference is that patent trolls only use the evil patent system for self enrichment, whereas, for example, Apple uses the same evil system for enrichment but at least produce something good to compensate for their evil ways.
In a world without patents everyone can exploit their ideas, irrespective of whether someone thought of something similar. Everyone can put forth their best efforts, and exploit their competitive advantages, they can risk their capital and either make themselves rich or fail utterly. It is the free market at its very best.
In a world with patents the only hope is that patents aren’t enforced rigorously. There are patents on so many things that were they all enforced fully the whole economy would grind to a halt. We have the utter inefficiency of the courts and the patent office to thank that we aren’t living in that hell. In fact truthfully the biggest sin of the patent troll is that they use free market principles to make patent enforcement more efficient, and these tiny gnats in the patent industry are already causing boundless problems. One can only imagine the disaster if all patents were enforced so efficiently and rigorously.
Fraser, the video I really suggested because Niall brought up the patent trolls. Although you might find it interesting as well.
However, Prof. Mossoff looks at the issue very much as I do, except I still think he, and Locke, might be a tad off in that they do leave some slight room for dragging economic arguments and “the common good” into it. Or so it seems to me. And the Enemy, of course, are weasels who can slink through any opening, however minuscule.
[As far as I’m concerned, you’re entirely welcome to plant your entire 640 acres with some exotic crop worth Thousands per Bushel, and then leave it there to rot, if you like. (Issues like pests infestations or prairie fires aside.) Anyway, we don’t have prairie fires up here. Downstate maybe, but not up here.]
However, in his view and mine patents have any “collective good” merely as a side effect. A very, very good article is the one at
http://www.libertylawsite.org/liberty-forum/why-intellectual-property-rights-a-lockean-justification/ .
But whatever you intend to convey, your final paragraph does bring it back to the horror that patent law wreaks on the economy. You did write,
(If you are interested in that aspect, you might also hunt up Richard Epstein on the issue…if you haven’t already.)
Anyway, if I as the originator of an item or a product (a book, say) wish to gain commercial profit from my product, why should I be prevented from realizing that profit solely because somebody else chose to duplicate, or nearly duplicate, my product and sell it himself?
But in the case where somebody independently comes up with and makes a nearly identical product, then both these guys are in the realm of all free-market dealings, as Mr Ed suggests. The Mossoff video above does have something to say about the history of Patent Wars in that regard, by the way.
Nevertheless, I do see what you’re getting at. I see it as an unfortunate coincidence that two people independently originating virtually the same thing would, if both were allowed to market it, sometimes make it financially impossible for either to do so. I suppose (at this moment, anyway) that you could argue “them’s the breaks,” just as we do for Mr Ed’s speculators. But I don’t promise I’ll still see it this way tomorrow. Anyway, the much more common situation — I think — is the one where somebody deliberately creates knock-offs of somebody else’s work. And that’s the case the IP laws are in place to deal with.
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And, yes indeed, a lovely Spring day roughly 80 miles from Chicago. I’m glad you got a space away from the keyboard, to enjoy it. :>)
@Julie near Chicago
> But whatever you intend to convey, your final paragraph does bring it back to the horror that patent law wreaks on the economy.
Right, but as you say the impact on the collective good is certainly secondary to the individual’s right to use his property. It is just an observable fact that private property in a free market produces the most good for all. I don’t think that in general decisions should be made on the idea of collective good, but that doesn’t mean we can’t bask in the glow of their benefits.
Here is the IP clause from the US Constitution:
The Congress shall have Power To…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The purpose is to promote the progress of science and useful arts, not to ensure people can profit from their private property. This is at its core a substitution of collective benefits to society as a whole to the detriment of private property. At its core also is the acknowledgement that this is not like other property, because title is only granted for a limited time. Of course the constitution does not define right and wrong, but that is the heart of it nonetheless.
> Anyway, if I as the originator of an item or a product (a book, say) wish to gain commercial profit from my product,
I think that perhaps this is where there is some divergence. Private property does not guarantee this at all. It is only by means of using your private property to produce goods and services, and then convincing people to give you money or trade for those goods and services, that you can profit. Owning a sandwich shop in no way guarantees you the right to competition free trade in sandwiches. Similarly, owning the idea of a one click shopping experience in no way guarantees you the right to profit from it. In both cases you have to use that property to the advantage of customers and, as a consequence, enter into a free exchange of the use of your product in exchange for their money.
In nearly all cases, except when the government grants you a monopoly, you have to do so better than your competitors so that people will buy from you and not from them (of course with the acknowledgement that it is perfectly possible to have two companies working in the same space, each trying to outdo the other, or capture specific niches.)
Why isn’t that good enough for ideas as it is for other private property? Why do we have to grant special privileges — monopolies — to this special type of property — intellectual property?
> But in the case where somebody independently comes up with and makes a nearly identical product,
I want to be clear again, this is no black swan, it happens all the time. Patent trolls exploit this to their profit. Certainly it is exacerbated by the PTO’s ridiculous definition of “original” or “non-obvious” but it is not just an implementation bug, it is an intrinsic bug in the whole concept.
However, I do appreciate your insights Julie.
Fraser, I apologize if I wrongly attributed to you the common-good POV (or any other POV to anyone else, for that matter). It was just what I read from/into your final comment on that squatter’s scenario.
FWIW and unless I missed something, I seem to agree with the entirety of your last comment here. It also may be the case that your position (as seems to have been expressed here) that intellectual property is not really property, may be different from the contrary position expressed here by me and others only in a semantical sense. After all, you just wrote:
presumably implying that it is a type of property, only a special one.
So again, FWIW and semantics aside (important as they are), I don’t think that you and I are in any significant disagreement on this thread.
Alisa, I suspect that Fraser was just using a term of art. The problem with trying to be semantically correct in an argument is that you often end up arguing the semantics rather than the point you’re trying to make. Often it’s just better to just use the common phraseology and move on but that relies on the person you’re having the discussion with not to employ “gotcha” tactics.
Intellectual property is basically an umbrella term for copyrights, trademarks and patents. Copyrights in some form are not particularly hard to argue for. Producing a work of art of some kind takes some effort (though beware the labor theory of value) and it seems fair on the face of it to allow someone to attempt to profit from their work. After all, it’s not like someone is likely to turn out a word-for-word copy of Moby Dick by coincidence.
Trademarks are fairly trivial to argue for. The owner of a mark produces a product or service and gains reputation. Someone wanting to purchase that product or service from that producer would be deceived by someone producing a similar product or service with the same mark so this is a priori fraud. The mark owner is somewhat protected by this but it is nearly always possible for someone to provide those product or services under a different mark and gain their own reputation. Trademarks are arbitrary and there’s very little harm in allowing them (barring some particular cases)
Patents are harder to defend. People have been copying the inventions of other people since time immemorial. “Monkey see, monkey do” after all. It’s essentially what makes us human. It might be possible to argue for special cases where an invention is particularly ingenious that the inventor should gain some level of protection but we run into issues of scope. Should wearing a pink sock with a green sock be patentable? Rounded corners on smartphones? Doing X “on the internet”? Then we run into issues of parallel invention and patent trolls and defensive patents as Fraser has indicated.
All of these are fine discussions to have. The problem is when you start to regard these as “intellectual property” rather than individual circumstances, you start to come to some very wrong conclusions. Musicians sue musicians for songs which sound a bit too similar, Mickey Mouse gets perpetual copyright protection (while Disney continues to rake in profits from stories which entered the public domain centuries ago or never had copyright), colors get trademarked, Scottish clans get sued by McDonalds, swiping to unlock your phone gets swapped with something equally trivial and drug companies seek to withhold cheap medicines when more expensive ones that do the same thing that are available. You go down a rabbit hole where things get stupider and stupider and if you look at where we are, that’s indeed what’s happening.
Give me a definition for “intellectual property” and I’ll show you a dozen examples where it would just be stupid to treat it as a thing. It doesn’t make sense as a concept. And that’s largely the point. The “content owners” want people to think that they *own* information, not that they’re granted a temporary monopoly at the largess of the government. Trademarks, Patents and Copyright, those are solid concepts that can be discussed sensibly.
Richard, not to disagree with anything in your comment, but you seem to have missed the part where I stressed several times that I was only discussing IP in a moral philosophical context, absolutely outside the practical and legal realm. No big deal though, as it must have gotten buried among the many (excellent) comments here.
@Alisa
> presumably implying that it is a type of property, only a special one.
You can call a duck a cow, but it don’t make it moo. What we call it is, as you say, semantics. But the term “intellectual property” is very misleading, attempting to hang all the attributes of regular property onto IP. Attributes that they clearly don’t possess. So I am just using the term but I don’t believe IP and regular property have all that much in common. I usually put the word “property” in quotes, so I apologize for my lack of diligence in this matter.
Although I do agree with much of what you have said here Alisa, I think the point of departure is that I believe intellectual property is a monopoly granted by the state, and can often be used to rob people of the right to use the products of their mind and the work of their hands. Not only do I think IP is not property, but I think it is the opposite of property — anti property if you will.
I believe that there isn’t really much evidence to support the contention that, on net, they improve society (which is their purpose), and consequently I believe that they are a case of sacrificing the good of the one for the good of the many. Ironically, since I actually think they don’t even enhance the good of the many, on net (and provided earlier a study to support such a conclusion.)
So although I think that if someone steals your idea, and you can prove they did so, then force is appropriate, but aside from that I think patents are on the whole a destructive, unnecessary, counterproductive and unjustified use of force by the government.
Finally let me offer more reading for those interested in the contrary view. The following paper by Boldrin and Levine of UCLA called “The Case Against Patents” is great reading. I’d encourage you to at least read the section “Do Patents Encourage Productivity Growth?”, which after all is the raison d’être of patents. Based on a meta study of all work they could find on the matter of the connection of patents and innovation, they conclude this: these studies find weak or no evidence that strengthening patent regimes increases innovation;
That is quite an indictment for something that is supposed to trade our liberty for the benefit of society.
http://levine.sscnet.ucla.edu/archive/refs4786969000000000465.pdf
Although I have given examples of how a world without patents would work my most fundamental argument is not pragmatic, it is moral. I ask simply this: imagine I invent something and sell it, and you independently invent something similar and do a better job of selling it. What possible moral right do I have to stop you from profiting from the work of your mind and hands to bring that product to willing buyers? I have called patents “evil” and I really stand by that moral judgement for this reason.
(BTW, to Mr. Thomas, you are correct, that was the abstract from Amazon’s “One Click” patent.)
Fraser, like I said already, I absolutely agree with everything you say in the practical and legal sense. To get back to semantics for a moment though, I do realize that the term ‘property’ itself has a practical legal sense to it, and this may be the reason that you and I keep talking past each other here (and many others do elsewhere). Still, if I were to borrow that term yet again and use it in its philosophical sense, I’d reiterate yet again that to me all property (or “property”, if you will) is in its essence intellectual. Other than that, and in the end of it all, practical applications are all that matters.
Thanks Alisa. I think I don’t have anything else to say except that I enjoyed debating this with you, Julie, Llamas and the other contributors here. Samizdata really is a great forum to stretch one’s mind and test one’s arguments.
Thanks to all.
Indeed – same here.
Alisa, you do have a good point there. Though I would perhaps suggest that’s a slightly different use of the word “intellectual” where for “intellectual property” it would be property that is generated by the intellect and for other types of property, it would be the concept of the ownership that is the intellectual facet.
However, all property falls under the basic rule of “If you can keep it, it’s yours”. If someone steals your horse, you go shoot em. The law seeks to become a more peaceful embodiment of this impetus. It’s not quite clear to me that much of “intellectual property” reaches that level. Though I’m sure people have taken extreme measures over a copied song or joke.
Indeed, and I wish more people understood that.
Yes, but moreover, not only peaceful, but just – by which, in this context, I mean ‘not overreaching’. If the law in its quest to protect liberty and property harms more liberty or property than it was intent on protecting in the first place, then we have a problem, and that seems to be the case with patent laws as they currently are. My point has been all along though, that this in no way makes the property these laws claim to protect less of a property. IOW, the fact that property may not be practically protectable by some particular widely accepted means (in this case the legal means) without throwing the baby out with the bath water, does not in and of itself render it a non-property in the moral sense. If I can’t keep it, it is no longer practically mine, but morally it still is.