Slashdot Mirror
Patent Attorney On Why We Need To Rethink Intellectual Property
Techdirt called our attention to an interesting video of patent attorney Stephan Kinsella's presentation on 'Rethinking Intellectual Property Completely.' It's a long presentation, but well worth the time to watch. There is also an ongoing series of posts discussing intellectual property rights on Techdirt for additional reading.
article & bigger video can be found here
I prefer rogues to imbeciles because they sometimes take a rest.
Intellectual property is a very egoist concept nowadays, in a time in which technological innovation can help so many people. It depends on the way it is used; if you just sit on your invention for 20 years and prevent others from doing something similar, or if you sell it at an outrageous cost (see: drugs) it's really detrimental to humanity as a whole.
Eureka Science News - automatically updated
How big businesses, attorneys, and the court system have hijacked our us patent system to squelch new entrepreneur innovation in the US...
Let me summarize the conclusion as well... Good ideas on IP change do not matter at this point because nothing meaningful will happen until we can somehow get congress to stop their continuous feeding at the trough of corporate lobbyists...
The concept of IP is here to stay. We have too many laws already on the books and there is too much money invested in IP for anything to drastically change. The power brokers in Hollywood and in Washington are only going to perpetuate the current system as long as they can.
My humor is probably your flamebait
When such a court claim is made on infringement of this intellectual property by a business located within the tax jurisdiction, just take the claimed infringement value and multiply it by the prevailing property tax rate and invoice said property holder. (Be sure to tack on interest and penalties for back taxes.)
If property holder doesn't pay in 90 days, start lien and foreclosure proceedings.
To recover the costs of this collection, auction off this IP. If there is no starting bid (1% of value), property becomes public domain.
The Roman Rule: The one who says it cannot be done shall not interrupt the one who is doing it.
better not to think.
by Is this subliminal message (bye-bye?) hinting that the Attorney is going to get off'd by IP holders? Stay tuned for the gruesome results!
Of course IP needs to be rethunk. I want free shit and I tired - DAMN TIRED - of having to break the law to get it!! The laws need to be changed in my favor!!
/.ian
Thanks,
Typical
Generally speaking,
I'm not a software pirate. I use FOSS.
I'm not a media pirate. I listen to CC stuff.
I'm not an encyclopedia pirate. I use wikipedia.
When all is open, patents are basically unenforceable. You can own an implementation via copyright, but you can't own an idea.
I won't drive anyone out of business pirating their stuff. I'll drive them out of business by obsoleting it.
~ethana2 (too lazy to login)
I would propose a multiple tier patent system.
1) Reclassify all existing patents as tier 1 patents and attach a cost that scales with time while they are retained. (For example, every year the fee would double.)
2) Add a 2nd, new tier of patents. The 2nd tier of patents would automatically have a public license attached. If you want to use these patents for anything you are automatically licensed to do so after the first payment to the inventor, and while your are current on the payments. The cost of using these patents would be defined by the patent office, not to exceed 5% of purchase price of the item its incorporated into. Tier 2 would have a fixed fee amount, but and a fixed duration for the patent.
3) Tier 3 would be the Same as Tier 2, but the inventor may choose the licensing cost and the fee amount would scale each year.
My idea for reforming patent law is simple: Make the maximum damage in a patent suit be 1% of the gross revenue of the product per patent found to be infringed, with a maximum of 10% of gross for all patents infringed. The change handles open source issues, limits insane business-killing damages, and will thus also limit licensing fees in practice, while still giving the creator compensation for their work. It should also cause a huge reduction in patent suits, due to the reduced damages limit. Another side effect will be that most companies will start licensing their products readily for the damage amount, rather than withholding licenses, as the only effect withholding a license will cause is additional money spent on attorneys and plenty of time in court to get their license fees. This should also lead to "clearing houses" for patent licensing, with easy searching and convenient reporting accounts for companies either looking for ideas to incorporate into their products, or to license any patents their invented product may infringe. It's also small enough and reasonable enough of a change that it's likely to gain support by a lot of people and businesses, and that it won't put lots of people out of work.
Who's with me? (:
"Not an actor, but he plays one on TV."
Is quite simple. When somebody comes up with an invention that has some potential use, you want that person to disclose that invention; how it was made and what it does so others can take that invention and make improvements, find other uses for it and all that.
But if patents didn't exist the inventor has absolutely no reason to do so. The longer and more darkly he can hide this information, or tie up that information in legal ribbons like contracts, EULAs, licenses, NDAs, the more money he will be able to make from his invention.
Patents address this issue - the basic deal is that the government gives you a limited term monopoly on your invention IF you fully disclose what the invention is and how it should be used.
Businesses make decisions all the time on whether or not to patent something. If they think that something won't be discovered by reverse engineering, or that they won't he able to enforce a patent that they received, they won't patent it. They will take their chances on keeping it secret. There are lot of areas that you will seldom see a patent because patent laws don't give value to the inventor.
So suppose we do abolish patents, What will happen? Lots more legal alternatives and barriers to disclosure of technology. Exactly the thing we don't want.
Sure, 20 years might seem like a long time. But before doing away with that be careful that we don't get something worse. Like the sort of trade secrecy practices that helped get patents adopted in the first place.
But if there is not a perceived investment opportunity, many drugs sold for high prices today (and lower prices tomorrow) would never have been developed.
It's true that companies pay a big part of drug development costs. But a big part is already paid for through grants. Now, if you look at the part that's paid for by companies, that comes from somewhere, and a lot of that actually is paid by the public again, through governmental programs. It turns out that if you grind through the math, it's cheaper to have taxpayers pay 100% for drug development and have the drugs produced generically than to give drug companies this economic incentive.
And the argument for abolishing drug patents becomes even more compelling once you realize that drug companies are incentivized to develop the most profitable drugs, not the ones for which there is the greatest need. Companies have the biggest incentive to develop tiny, patented variations of symptomatic treatments for common ailments like light allergies and colds. Other drugs are drugs that try to compensate for unhealthy living and lack of exercise. Those are not the kinds of drugs that it makes sense to develop from a public health point of view.
So, not only is the patent-based approach to drug development expensive, it also produces the wrong drugs. In different words, the patent system for drugs isn't working.
I generally like free market solutions, but for drugs, we should seriously consider going to an all publicly funded R&D model and making the results available to generic drug makers.
The incentive to save lives is big enough. All this "without money no one will do it" is BS. Without money no *company* will do it. Well, just don't make companies do it.
Look at all the philanthropic jobs that don't pay and the NPOs.
Create publicly funded labs. Create open lab diaries and open development. Make it an honorable job. Applications will flood in.
We don't need anymore pharmcos and anymore garden fountain commercials.
short answer
longs answer compared to what they charge they make the money back instantly. They also make money back along the way, "so your hospital wants to be part of our trial for a cancer drug? it says here that only 80% of your patients are receiving ACME drugs during their stay..."
Sure if for every drug that makes it 100+ dont, but most that dont are scraped before they cost much, and those that do make it can easily pay for 1000+ drugs to be developed.
IranAir Flight 655 never forget!
The GPL is there to undo the damage that copyright produces to the state of the art of computer programming and computer systems.
If copyright dies, then copyright is no longer causing damage to these systems and the GPL is no longer needed.
Oh, and the cost of GPL is zero, tax that is still zero. Of course, you must GPL your code if you combine GPL code into that, but that doesn't cost anyone any money at all. So still 0 tax.
But they spend a lot more on advertising and executive perks and stockholders. Large scale global open source cooperative medicine would be a much better deal for humans as a whole, and oddly enough it would be in the insurance industries benefit to push it, similar to how the big computer companies like IBM have embraced more open source and how many more non computer companies can see the advantages of both free beer and speech code. In the long term it helps more than the smaller scale lost profits of a few companies. In addition to that, a lot of these drug innovations partially come about from public funding to universities, where they are then patented and made "for profit". I'd rather the same money got devoted entirely to research and deployment and skip the profits and huge wallstreet skimming. The medical care consuming public is where these "profits" come from anyway, and it would be a better deal for them if ALL the money went to the research so it could be delivered at cost and not for profit. My opinion anyway. You can still pay the actual egghead researchers well, just no overall need to pay shareholders and Cxx and wall street folks, that is last century's middleman business policies that are archaic now and not expressly "needed". It's not like it is hard to sell medical care, the demand is there, so it would be more efficient to get it funded, run and delivered by eliminating the huge middleman skim.
I listened & watched the presentation, and with respect to automatic copyrights and 75 years after the individual dies or whatever, I agree there needs to be a reduction to the time periods and automatic creation, but that is copyright.
In the field of mechanical objects, for utility patents, it often takes a large expense and a lot of time to get a concept for an improvement or new idea or "invention" if you will to work, and be cost effective and safe.
If you took one year out of your life to create a better widget, and then wanted to produce it, would a venture capitalist or bank be willing to fund production, if you do not have a way to keep the competition from copying your work? After all, some companies who are well extablished with lots of cash would love to copy everything it sees which it could use in its products, and you would not have any way to then sell your better widget. A VC is not going to fund a physical product, if there is not a chance of some form of protection from copycats.
A classic case of a new product today might be better battery technology. Right now everyone wants better batteries. They will help get the world off of petroleum for transportation uses eventually. Sure, it is just improvements people are patenting, but there are hundreds of millions in VC funding (maybe billions) backing hundreds of companies trying to come up with better products. VCs (or pension funds, or banks, or individuals) do this because they think they will make a good return on their funds, and that means avoiding having General Electric or Everready or Panasonic's battery division just copy your 5 year effort "for free".
I do not think individuals or anyone will elect to fund a 5 year effort (A123Systems.com for instance) to make a better battery technology.
If we do not provide the limited period of patent exclusivity, I somehow doubt VCs will fund much hardware innovation. Yet what does society need? Better materials, processes, coatings, machines, energy systems, plastics, and a thousand other specific things to make society more efficient, less polluting, less labor intensive, etc.
Most innovation tends to initially start with small companies or individuals, as far as I've heard, and I can't see that happening without some way to "sell" your invention.
I think the gentlemen in the video has never had to consider how he would earn a living outside of being a lawyer and talking all the time. Yeah I am exaggerating a bit.
Tax-funded drug research? Yuck. I'll pass.
What about letting companies develop drugs without the huge restrictions the FDA puts on entering the market?
http://www.publicpatent.org/
This fellow has the solution. Why can the government override me and my doctor on deciding whether it's safe for me to take a drug?
I look at a lot of drugs that have been invented, and I look at the effect that many of them have on me and others like me who are physically out in the rim of the bell curve, and I don't really believe that we are necessarily better off with all these drugs being developed and aimed at the boom-bust market cycle.
(Just think about boom-bust markets and epidemiology at the same time for a few moments.)
We have a long history of indigenous treatments of a variety of diseases and disfunction, but the guys developing for the big market mostly ignore those treatments. Funny thing is, those treatments, disruptive of modern pop-a-pill, swill-a-cup-of-stimulant lifestyle as they are, generally are more effective than all the fancy drugs at restoring quality of life.
(Look at longevity in Japan, for example. That's not due to expensive drugs and treatments. It seems, rather, in spite of them.)
Biochemical research is not really all that evil. But basic hygiene and nutrition (and exercise, and general moral behavior) has done a lot more to extend the average life-span than all the expensive drugs put together.
IP may be good motivation in the current upside-down economy, but IP itself has turned society and the economy upside down. IP has just become yet another excuse in the long trail of excuses in human history to try to control things from the top down (and to try to be the dog on the top of the heap fooling himself into believing he is actually controlling things).
IP is a trap. Someone else has said it here, but IP is the legal equivalent of nuclear armament. With nuclear arms, the only thing that keeps the world from self destruction is the awareness of the guys at the front of the social trends of the concept of mutually assured destruction. You eventually get guys like Bin Ladin or whatever his name is who simply refuse to consider the end of the road when using weapons of mass destruction. (Can't put that genie back in the bottle, but war on terrorism is still pursuing the mutually assured destruction, and that by those who should be aware of the concept.)
Legalizing IP is kind of like putting weapons grade uranium out on the general market.
The concept of property of the intellect has always been there, and has historically been used to ill effect for all of recorded history. (It's a perversion of the same concept of which property itself is a partial perversion, but I'll leave that thought sitting on the ground for now. Hopefully it'll make good fertilizer if we leave it for a while.) The concept of property of the intellect has been the basis of the ideological excuse of most, if not all, repressive and abusive regimes. But when we make it a legal construct, it allows people to drag each other into court for what ultimately ends up as a game of my-lawyer-is-bigger-than-your-lawyer. King of the mountain. Who blinks first. Chicken. Mumble peg.
In the end, there's always somebody bigger, until finally two or three evenly matched opponents throw each other off the mountain and everyone ends up in a heap at the bottom. (Sometimes natural processes, or God, if you prefer a more concrete name, interfere in the game, but the result is the same. Everyone in a heap at the bottom again.)
Sometimes the mountain itself ends up in a heap at the bottom, as well, when the players have shovels or explosives. And that is the worry, now. Giving the principle of IP the teeth of law will provide ordinary lawyers with the legal firepower to destroy the whole legal system.
We would be better off to not promote the king-of-the-mountain games.
Computer memory is just fancy paper, CPUs just fancy pens with fancy erasers; the 'net is just a fancy backyard fence.
http://en.wikipedia.org/wiki/Thalidomide
And from http://en.wikipedia.org/wiki/Antibiotic#Antibiotic_resistance
The FDA exists to test and approve drugs to prevent tragedies such as the thalidomide and similar as well as to set usage policy to prevent future abuse of a drug. They are the balancing act between pharmaceutical advertisers pushing not only doctors but patients to demand specific drugs and the health and safety of the drug using public. In many cases, they are the only defense a patient has against the constant push for that magic bullet pill...
This is a sig. This is only a sig. Had this been an actual sig you would have been informed where to tune for more sigs.
And right now the Drug Companies PAY FEES to the FDA, which in essence is paying the salaries of FDA inspectors. Hmm . . . I wonder if I were an FDA inspector in a time of slimming federal budgets and a drug came along that was borderline, but the fees to get it approved were paying my salary . . .
So after the problems with thalidomide were discovered, people would have continued to clamor for it, had it not been against the law?
You haven't cited anything the FDA does to prevent antibiotic resistance, only asserted that it exists. I guess it's a good thing we have an FDA, or people would get antibiotics for a common cold, and antibiotics would be put in animal feeds. Oh wait.
So why bother if you can simply file the patent and wait for someone else to do it? The patent troll situation is far from static, they are still increasing ... who will elect to fund 5 year efforts if there is a large chance that when all is said and done someone with an absolute monopoly on a necessary step will leech away all of your profits?
The FDA is a pseudo-control mechanism for the government to appear to be protecting its citizens. The FDA, in reality, is a political tool used to provide citizens with a false sense of security and trust for drug companies that pay money hand over fist to get their drugs approved. The FDA reads, analyzes, and makes determinations largely based on research done by the company that produced the drug. Why is that a problem? When research is done by those that profit, and deciding members of the FDA also stand to profit, then it will be $$$ at the fore with safety at the aft. Long story short. The FDA is a joke. Whats worse, is that your doctor quite likely will not be able to advise you well due to their own dependence on the system for answers. From this, doctors will regurgitate the findings of the drug company.
I think you are misunderstanding the reason for the FDA, or at least why it is SUPPOSED to exist. It's supposed to *prevent* things like thalidomide being prescribed to pregnant women and other cases where a drug is very unsafe *BEFORE* there are widespread fatalities or other health issues caused by them. Unfortunately, things like the recent drug recalls and the Stevia plant (http://en.wikipedia.org/wiki/Stevia) bullshit demonstrate that the FDA isn't properly doing it's job, that is that it as a regulatory body is too much in bed with the very companies it is meant to regulate. If you are wondering about the case of Stevia, currently in the US it can be sold as an herbal supplement in any quantity to anyone for any reason and is deemed to be perfectly safe to do so. So long as you make no mention of it having a flavor (it's naturally very, very sweet and was used in place of sugar in the places where it is native for a very, very long time). The moment you mention it has a flavor, it becomes an unsafe food additive and you have to be fined and your stock confiscated and burned. This of course, has nothing to do with manufacturers of certain other noncaloric sweeteners that might not want to deal with an alternative.
Aargh. I spent a half hour listening to this drivel. Next time, post a transcript.
Most of what he says is either trivial or a weird attempt to reconcile patent and copyright law with the writings of Ayn Rand.
Whenever anybody says "Intellectual Property", I think of a law that allows stupid people to own ideas. Not only say it's theirs, but take it home and hide it, and if anybody has an idea like it, they can set the law on them.
OK, maybe the person who only ever has one good idea in their life will benefit from such a law. They can sit somewhere comfortable, stroking their preciousss, counting the money the stupid person who can afford lawyers gave them. If however, you're in a position where having good ideas is what you do for work, then you have to spend half your life talking to stupid people with money about how best to prevent anybody else from benefiting from your idea!
If you're a law-abiding intellectual, IP makes your life harder. If you're a law-abiding small business that wants to do 'new stuff' IP makes your life harder. If you're a law-breaking stupid person, IP makes your life harder, unless you're in a country where nobody really gives a shit about laws that make it harder to 'do business', in which case it just makes your competitors' lives harder - which is great!
I love to see pictures of really, really, stupendously rich people enjoying their private planes and tropical islands as much as the next person. You have to admire their intellectual property, after all - they paid for it! But a rethink of the idea as commodity is long overdue, even if we don't get as many pimped-out dreamliners to drool over.
I've stopped ranting now. I feel better. Thanks for listening. Hello?
The beer wants to be free crowd is doing the public a wonderful service but I for one don't think less of, say, doctors for wanting to be paid cash money for the services they render to others, rather than healing the sick purely out of the goodness of their hearts. Likewise, one would think that inventors, designers, artists and the like would feel incentivized to seek remuneration for their efforts as well. While corporations do receive many patents, there's nothing technically stopping most anyone else except for the lack of a good idea.
For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods
Now you might say "wait, our calculations include all the costs of those 7 million compounds into the sucessful one and it's still innefficient!" But what that argument fails to obserbve is the cost of market creation. Market creation is necessarily innefficent and spread across a vast space of entrepeneurial effort not captured in the pharma numbers. That is, no one will attempt to create a new market (i.e. regulation, distribution, education) if you remove the entrepeneur from the equation.
Finally I doubt that killing patents would make too much different in the system, becuase that other goverment monopoly called "FDA approval" would take up any monopoly slack - as it already does with orphan drug applications and biologics.
Unfortunately even that well-thought out series of posts on why software- and business model-patents suck still brings into play some of the same old canards. From TFA:
When that one comes up again and again it causes more harm than good. Of course it is true that software patents harm open source development. However, it is true only because software patents harm development in general: both closed and open. So by mentioning only open source, it is implied that closed source is not harmed. That is wrong, since development in general is affected.
However, focusing on development is also rather foolish and distracts from where the real harm lays: usage. Yep. Patents govern usage and where are larger numbers for any given piece of software, the number of developers or the number of users ? So by talking only about development, attention is shifted away from the real damage.
One good point made by the article is that is states how open source shows that patents aren't necessary for software innovation. Like the above points, that point could also be made a little better by putting it into the correct context. It is not Red Hat alone, but also a great many other companies and an even larger number of professionals and experts who point that out. So framing that observation as coming from only one single company also imbalances the debate.
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
Having worked with a couple of patents, I must say I prefer them over copyrights, and I'd like to see a new copyright system modeled after them. For a few examples, patents
Escher was the first MC and Giger invented the HR department.
The very concept that I should have to pay someone to have ownership of the fruits of my own labour is so utterly repugnant it defies words.
I recently went to the pharmacy and for the first time was compelled to leave one of my perscribed medications behind.
you can look it up if you like, it's called entocort ec
They demanded 400 bucks for a month's supply, and I told them I would be having a good long talk with my doctor.
Treatment for crohn's disease is necessary, spending 400 bucks a bottle for that treatment is not.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
That's a good example of a drug having an unanticipated adverse side effect. This has happened several times, both before and after the establishment of the FDA. How about Vioxx? Did the FDA help any in that case?
We've got people worried that the lack of protection of drug company profits will reduce the release of new drugs, but having draconian restrictions on testing has also reduced the introduction of pharmaceuticals.
I think in France they have a state owned pharma company that produces and researches new drugs, that could be a way... make at least 1 fully govt owned company by the people for the people ;) Force competition this way. Also about the taxing stuff, I've read in some article (sorry I can't link to it) a while back that said we tax physical properties... why not tax IP too? They don't wanna pay the tax on it anymore? Goes to public domain! If they keep on paying well you send part of the revenue to the above mentioned state run pharma company or pay for roads, law enforcements, universal health care or any other infrastructure people will need anyways for everyone to keep doing business ;)
IP and any kind of knowledge are non-rival goods -- I can give them to you and still keep mine.
This and many other important considerations of a steady-state economy are explained here, by Herman Daly:
http://www.theoildrum.com/node/3941
"If you're not passionate about your operating system, you're married to the wrong one."
The way I see it, patents are made of the little guy.
Someone with not so much money thinks of a great idea and wants to turn it into a product and sell it. The put in a lot of hard work on their original idea and start production. Big company gets word of this and takes all of the things in the little guy's product and basically blows away the competition.
If the little guy got a patent, he can sue the big company, and protect his idea.
Problem is, big companies get these patents, when they don't need protection at all from smaller companies stealing their ideas.
So what do you do? Say that if the company makes less than X profit a year, they can gain from their patents; and otherwise people can use their ideas freely? There's no good way about it.
His arguments come not from a desire to promote innovation or practical concerns, but rather are rooted in disdain for democratic government.
Among other gems, he insists that there is no right to free speech, but only a right to property from which a right to speech derives. With a straight face he tells us that speech is a right which belongs only to those who own property. Elitist douchebag.
Too busy staying alive... ~ R.A.
He claims that you have a right to use your property, including your vocal cords as you see fit. Since you, and no one else, owns your speech organs, or your hands, you are free to say or write whatever you want.
You call that elitist? You think that's a bad thing? What do you support?
Forcing people to say things they don't agree with? Forcing them to write things they would prefer not to write? Mandatory loyalty oaths?
Am I the only one that is completely confused?
College-Pages.com - Online Colleges, Degrees, and Programs
In brief, this argument is wrong because it does not take into account that costs and benefits are probabilistic, not known in advance, and there is no way to remove the bad effects without removing the good effects also.
1. The problem you mention can also be solved without the FDA, by making drug companies bear the cost of any future harm done by their drugs, i.e. by giving them a just punishment. This way you provide a deterrent for the future (and the lost lives can't be brought back anyway). This way, in the future, all companies will know they bear the costs of harm, so it will be in their interest to make enough safety tests. How much is enough? They will release a drug _only_ when its (probabilistic) benefits are bigger then its (probabilistic) costs. Which is _exactly_ what we want: we want a drug released only if its potential benefit outweight its potential harm. That is, if its potential profits outweight its potential cost in damages.
To the contrary, creating a government-run FDA is not a good alternative. The reason is that the government employee has an incentive to always block a drug that could be unsafe, regardless of its potential benefit. He will only take the risks to himself into accout. Put yourself in the position of the government employee: if you approve a drug which turns out to be harmful, you will be responsible. If, on the other hand, you block a drug which could have saved a million lives, who will know? Nobody will punish you. In other words, the individual interest of the FDA employee is divergent from the interests of society as a whole; whereas the interests of the drug company can be made to correspond (provided decision-makers can be justly punished) with the interests of society.
Quoting from David Friedman's "The Machinery of freedom":
Another problem is that the FDA has _no_ way on knowing if a drug's benefit outweight its side-effects, simply because that depends on the individual. For example, there are currently american citizens who regularly travel to Canada to buy a drug which is illegal in the USA, but is nonetheless essential for their life. Their illness is so serious that side-effects are irrelevant to them. How can anyone tell me if some side effects are worse for me than their benefits? Each individual has a right to decide for himself what is best for himself. Currently, if you have rare illness and some government employee has decided the side effects are "too big", that's just tough luck for you: you have to die. Someone may call this justice, I don't.
People intereste
...is on Against Monopoly. That is where said patent attorney regularly blogs, together with several others, including the economists who authored Against Intellectual Monopoly . Worth reading.