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Patent Attorney On Why We Need To Rethink Intellectual Property

Posted by ScuttleMonkey on from the undermining-from-the-inside dept.

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.

16 of 226 comments (clear)

  1. For those of you looking for it ... by NotBornYesterday · · Score: 5, Informative

    article & bigger video can be found here

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  2. Old concept in a new world by FiReaNGeL · · Score: 5, Insightful

    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.

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    1. Re:Old concept in a new world by WaltBusterkeys · · Score: 4, Insightful

      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. But it's equally detrimental if those innovations are never made. It's just as bad to NEVER INVENT something as to not sell it, or to sell it at high prices. Most people who innovate don't do it for free; they do it because they need to feed their families and might even hope to strike it big.

      And the process of innovation is rarely cheap. You use the example of drugs. For every one drug that makes it to market, hundreds of drugs fail animal tests or basic safety tests, and tens more fail in human trials. These are extremely expensive. Right now we compensate drug developers for the risk and expenses of drug design by allowing them to sell the successful drugs at a price above cost. Requiring that drugs be sold at or near cost would put a halt to innovation that has saved countless lives; there'd just be no reason to sink millions (or even billions) into research and testing if any competitor could copy your product as soon as it it the shelves.

      There might be other ways to encourage innovation (government grants, government funding, competitions, etc), but any solution has to recognize that innovation is rarely cheap.
    2. Re:Old concept in a new world by poetmatt · · Score: 4, Insightful

      If nobody can use something, it's still useless.

      If nobody can improve it further (which is the original reason for improvement patents), then it's hampering innovation in the first place.

      If someone were to patent running processes on a computer, where do you think software innovation is going to go?

      For drugs, the price is now dictated by the maker regardless of the cost of manufacturing...hello superexpensive medicines in africa? Whoops?

      The millions and billions are collective research, not just solely put on one product. It's throwing money at the wall, waiting for some to stick, and suing the hell out of everyone once something does.

    3. Re:Old concept in a new world by QuantumRiff · · Score: 5, Interesting

      Drug companies love to talk about the cost of developing their drugs, but they easily spend more money Marketing their drugs than they do developing them. If there drugs are so good and wonderfull, shouldn't they sell themselves?

      This gives much more information.

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    4. Re:Old concept in a new world by frosty_tsm · · Score: 5, Insightful

      Probably not.

      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.

    5. Re:Old concept in a new world by WaltBusterkeys · · Score: 4, Interesting

      The millions and billions are collective research, not just solely put on one product. It's throwing money at the wall, waiting for some to stick, Yes, because it's impossible to know in advance which concept will work. There is no way to know that Molecule #1512 will be the one that will become a successful therapy, and that #1-#1511 will be failures. Investigating the first 1511 is an absolute prerequisite to finding out that #1512 is the one that will work. You call it "throwing money at the wall," but that's the only practical way to do drug research these days. You start with a bunch of compounds that look like possible candidates, then slowly weed out the ones that don't work or cause unacceptable side-effects or otherwise aren't promising.

      If there were a way to know in advance which drugs would work then nobody would waste time looking at the unsuccessful ones.
    6. Re:Old concept in a new world by reebmmm · · Score: 5, Insightful

      Is the money you gain from prohibiting others from using the same idea in a generic drug worth the lives lost by those who are unable to afford your prices?

      You've phrased this exactly backwards: is giving up a short term of exclusivity worth all the lives SAVED because someone took the time to invest the money in getting that drug from discovery through clinical trials.

      Without patent protection, you'd have a free rider problem.
    7. Re:Old concept in a new world by 99BottlesOfBeerInMyF · · Score: 4, Interesting

      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.

      This is true, but maybe if we allocated our tax dollars better we would have better drugs yet. The way things are now, a lot of the research is already funded by tax dollars, even though private companies end up with the patents. They also pass up avenues for research that might result in cures, which are much less profitable than treatments.

      The drug industry and health industry in general is a situation where the government interferes with the free market by enforcing patents and subsidizing some research and restricting other research. The problem is not necessarily government interference, but the fact that the government interference is directed by lobbyists making campaign contributions instead of by representatives acting in the best interests of the people.

    8. Re:Old concept in a new world by Znork · · Score: 4, Insightful

      With regard to drugs, doesn't the research and testing that goes into drugs cost major $$$$$ and time?

      The research of new drugs costs nowhere near what the marketing does.

      Take a look at the financial report of your average pharmco; approximately 15-20% is spend on R&D, 40% on marketing and administration, and 40% on comparatively inefficient production (compare generics pricing).

      That means we'd get 5 times as much medical R&D if the insurance companies and government simply funded it outright and let the free market generics handle the production and marketing. Or we could get the same level we're getting today at a fifth of the cost.

      The only thing patents give you is monopoly inefficiency. A level of inefficiency that surpasses even what governments can waste on their own.

      Imagine the diseases we could cure and the medicines we'd have access to had medical research funding not been bogged down and hindered by a century of patents.

      Oh, well, at least you can be sure your doctor is well equipped with complimentary pencils and golf vacations.

    9. Re:Old concept in a new world by Anonymous Coward · · Score: 4, Insightful

      Obviously you haven't worked in government much. I've worked in industry for years before working for the government. I thought I had seen lots of waste in big industry, but that's nothing compared to what gets wasted by the government.

      Don't get me wrong. There are some things that are better done by the government even at the outrageous cost it requires, but it's almost never the most cost effective way to do something when the government does it.

  3. A better way of saying this... by tgatliff · · Score: 5, Insightful

    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...

    1. Re:A better way of saying this... by tgatliff · · Score: 4, Insightful

      Exactly my point...

      In fairness, history tells me that this behavior was caused by "too good of times" for too long. Meaning, during the good times people really just ignore what their elected officials do. Once things turn sour for more than a brief period, however, this will change... I guess only time will tell if history will repeat itself.. :)

    2. Re:A better way of saying this... by tgatliff · · Score: 4, Insightful

      Well, let me put it this way... Large businesses use patents in a strategy of what they call an "IP moat".... Meaning, the main reason MS, IBM, and countless other businesses are building huge patent portfolios are not because of all of the "innovation" they are doing, but rather because of their desire to protect their core business from any potential rising competition...

      At first look, this does not seem like a bad thing, until you realize that most of the large businesses that exist today could have never grown up in such an environment.... Meaning, for a free market capitalism system to function, older obsolete businesses must die and new more competitive businesses must rise to take their place. In the current business environment, this mechanism cannot occur...

      So, do you still think that startups are not being hurt?? :)

  4. Intellectual Property Tax by apenzott · · Score: 5, Insightful
    This could be a wonderful revenue opportunity for cash-strapped state and local governments.

    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.

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  5. Re:IP will never go away. by Zigurd · · Score: 5, Insightful

    To say that copyright protection for recorded performances is permanent is like saying gasoline engines are forever going to power cars. There was a time before gas engines, and copyright recorded performances, and there will be a time that comes after.

    As with gas engines and global warming, if we find that copyright protection for recorded performance amounts to pollution of the law and of the public domain, there is every reason to do away with that aspect of copyright protection.

    Copyright is not a fundamental human right. Copyright is a deal: "I'll publish, if the governments protects publications." Unlike natural rights, copyright is a created right, a bargain between governments and publishers, and the bargain can be partially or fully revoked, or the term shortened. There is nothing immoral about revoking or curtailing copyright protection, especially for a relative novelty like recorded performances. It is a decision based on utility.

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