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The root causeThe root causePosted Jul 15, 2012 19:35 UTC (Sun) by giraffedata (subscriber, #1954)In reply to: The root cause by steffen780 Parent article: Akademy: Defensive publications
You've got the question, or more accurately the burden of proof, the wrong way round. Well, the question I stated is in fact the question that came up in this thread, that we would like to answer, so I don't know what conversation you're trying to have here. (The question I assume you're referring to is what I worded in the last sentence of the post to which you replied: "would people innovate as much today if there weren't patents as they do with them?") The patent people and their apologists want a superficially ridiculous monopoly on ideas (ie. on part of people's brains). I believe you're setting up a straw man here. I don't believe a significant number of patent apologists claim that. Virtually everyone I see says the superficially ridiculous monoplies on trivial ideas that are happening in the current patent system are wrong. IBM, which has been granted more US patents than any other inventor in each of the last ten or so years, has called for patent reform. I believe IBM has said it would prefer a system in which, among other things, IBM got only a fraction of that number (because most of IBM's patents are trash just like everybody else's). It's not superficially ridiculous to say that some innovation is motivated only by the possibility of recouping investment through the use of a patent. So I don't see any reason to place the burden of proof of whether that's true on the "yes" side. And it's possible no studies exist because it's too obvious.
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The root cause Posted Jul 16, 2012 16:56 UTC (Mon) by steffen780 (guest, #68142) [Link]
> Well, the question I stated is in fact the question that came up in this thread, that we would like to answer, so I don't know what conversation you're trying to have here.
I'm trying to get patent opponents to take a much more aggressive stance, which IMHO includes attempting to get the idea across that it is not on us to disprove patents. Of course if someone does that, that's also great, but in terms of philosophy and constitutional law I think it is a very important point.
> Virtually everyone I see says the superficially ridiculous monoplies on trivial ideas that are happening in the current patent system are wrong.
Sorry we've got a misunderstanding here - I wasn't referring just to trivial ideas. I was referring to all patents. I also wasn't calling trivial patents superficially ridiculous, I was referring to the whole system of government-granted monopolies.
> It's not superficially ridiculous to say that some innovation is motivated only by the possibility of recouping investment through the use of a patent. So I don't see any reason to place the burden of proof of whether that's true on the "yes" side. And it's possible no studies exist because it's too obvious.
Of course some innovation is motivated solely by the hope of extracting profit from a government-granted monopoly. As you say, that's just obvious. The question is whether these monopolies are a net benefit for overall society:
Since monopolies generally are terrible for a capitalist society (after all, how can market forces work when there is no market?) the burden of proof that ideas are an exception clearly lies on the people who want the monopolies. To my knowledge (admittedly, I haven't looked hard at all) no study exists to support the claim that the patent system is beneficial. However, there have been studies that claim to have shown that the patent system causes net damage.
The root cause Posted Jul 16, 2012 19:55 UTC (Mon) by giraffedata (subscriber, #1954) [Link] The question is whether these monopolies are a net benefit for overall society:OK, then, that's a far deeper and more important question than I thought I was hearing. Something that's "superficially ridiculous" doesn't even bear investigating; you can be satisfied it's wrong just by looking at it. I'm about as great a supporter of free market capitalism as there are, and even I wouldn't say monopolies are superficially ridiculous. I had to be taught by scholars to hate them. Incidentally, by referring to patents qua patents as monopolies on ideas, you construct a strawman argument even if we exclude the trivial ones, because patents were never intended to be, and don't have to be, monopolies on ideas. I was in a patent law class that spent the whole first day stressing, "you can't patent an idea; you can only patent an invention." And the words ring in my ears, "An invention is a an idea reduced to practice." Edison, who kind of epitomizes invention, said it as, "invention is 1% inspiration and 99% perspiration," where the perspiration is what the patent stops other people from exploiting for free. I'm not a patent lawyer, but it sure seems to me modern patent examiners took a different class. I've never been able to reconcile what I learned in that class from what's actually happening. But anyway, the point is that it's conceivable a patent system could exist that doesn't grant monopolies on ideas, so you can't attack patents just by attacking the concept of monopolies on ideas.
The root cause Posted Jul 16, 2012 21:08 UTC (Mon) by nybble41 (subscriber, #55106) [Link]
> I was in a patent law class that spent the whole first day stressing, "you can't patent an idea; you can only patent an invention." And the words ring in my ears, "An invention is a an idea reduced to practice."
The problem with this reasoning is that the patent doesn't cover a _specific_ device or instance of a process, it covers all devices or all processes which happen to implement the ideas described in the patent. The monopoly isn't granted over a concrete good or service, or even exact copies, but over the _idea_ which encompasses all similar goods and services.
It would be true enough to say that the patent is _infringed_ by reducing the patented idea to practice, without a license. An abstract concept cannot infringe; for that you must build a device, or implement a process, based on the same idea. However, it is the idea which the patent monopolizes.
Or I suppose you could say that a patent grants you a monopoly over _other_ people's inventions, superseding (and infringing on) their own property rights, if those inventions happen to include a reduction to practice of the idea described in the patent. However, that puts patents in such an obviously bad light that their proponents would probably rather just say that patents cover ideas in the first place.
The root cause Posted Jul 16, 2012 21:46 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
> The problem with this reasoning is that the patent doesn't cover a _specific_ device or instance of a process, it covers all devices or all processes which happen to implement the ideas described in the patent.
If the idea described in the patent is very general then you have a problem.
i.e. if the patent is "how to cure rubber" it's bad
But if the idea described in the patent is specific, it can be worthwhile and doesn't prevent other people from achieving the same result through different means
i.e. if the patent is "how to cure rubber by following this process for calculating how much heat you apply to the rubber" it can be good.
This doesn't prevent someone else from inventing another way to cure rubber, they just can't use that specific approach to the problem. If they come up with a different way of calculating how much heat to apply, that can be worth a second patent.
The root cause Posted Jul 16, 2012 22:13 UTC (Mon) by steffen780 (guest, #68142) [Link]
AIUI "invention" is simply a subset of "idea". In practice the notion of "subset" is becoming increasingly irrelevant, everywhere in the world. As for the quote, yes, it's a great one. In my opinion it is one of the best arguments against patents in the real world - they don't actually protect just the perspiration. If someone else has the same inspiration independently and also does all the perspiration, they're still legally prohibited from profiting from it.
Copyright is for protecting the perspiration - patents protect the inspiration. I'm not a big fan of copyright either, but I suppose I could conceive a copyright system that would at least be worth considering, but whilst a patent system satisfying my constraint a) might be conceivable, I cannot see one that satisfies b), not even with c).
Take medicines as an example - why should a company be barred from taking your patent, doing all the safety studies and so on (thereby doing the perspiration), and then selling the drug? Sure it'd be inefficient, but these kind of inefficiencies are a given in capitalism. Its point is competition - who can do the same task most efficiently.
The root cause Posted Jul 18, 2012 3:25 UTC (Wed) by giraffedata (subscriber, #1954) [Link] If someone else has the same inspiration independently and also does all the perspiration, they're still legally prohibited from profiting from it. I believe that is only for reasons of practicality. The principle of patents does not require that independent invention be considered a patent infringement (quite the opposite), but we know it would be extremely difficult to tell whether someone's invention was independent if the work happened after the patent holder's work was published. I don't see that as an essential part of patents; if the law merely presumed a post-patent practice of the invention was a copy and allowed the second inventor to prove it was independent, that would still be a patent system. My point is that this quirk of patents isn't enough to oppose the entire concept. Incidentaly, assuming a patent system does not grant patents for obvious inventions, there isn't really much incentive for re-inventing. If Pfizer knows that Merck can and will spend $100M to duplicate Pfizer's $100M invention, Pfizer will offer to license it to Merck for $50M and both companies win.
The root cause Posted Aug 3, 2012 21:50 UTC (Fri) by steffen780 (guest, #68142) [Link]
Sorry but now you seem to mixing things up. Patents without assuming that independent discovery was a copy are pointless. We have copyright for that.
The root cause Posted Aug 5, 2012 3:06 UTC (Sun) by giraffedata (subscriber, #1954) [Link] Patents without assuming that independent discovery was a copy are pointless. We have copyright for that. How do you figure? The point of patents is to protect inventions, which is something copyright can't do, because it protects only expressions. How do you suppose copyright would stop Merck from manufacturing and selling a drug that Pfizer invented? Assume that Pfizer could prove Merck learned how from Pfizer's paper on the subject, so that independent discovery is not an issue.
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