In his post Reality Check: Anti-Patent Patent Musings Simply Bizarre, patent attorney Gene Quinn is baffled that any patent attorney would openly oppose the patent system–or be hired by anyone. He writes, in part:
But what has me really wondering is how and why a patent attorney who is openly hostile to the patent system can get any work in the industry? Why would any inventor or company want an anti-patent patent attorney like Stephan Kinsella, who seems to be the genesis of this story, and so many other anti-patent patent stories.
Why would anyone hire me? I’ve prosecuted hundreds of patents. I’ve taught computer law as an adjunct law professor, I’ve published a great deal of legal scholarship including IP law, such as the Oxford University Press legal treatise Trademark Practice and Forms. I believe that given the patent system, tech companies have no choice but to arm themselves with patents, if only for defensive purposes. If someone went after one of my clients for patent infringement, I’d pull out all the stops to defend them from this state-backed threat. Maybe some clients like a patent attorney looking out for their interests.
Apparently Quinn thinks ideological conformity is a requirement for job competence. If you have the wrong politics, you’re out. (I just hope I don’t have the wrong religion, gender, or race.) But think about it: would you hire only oncologists who were pro-cancer? Is it outlandish to think of hiring a tax attorney to defend you from the IRS who thinks the income tax is immoral and should be abolished? Is it required of a patent attorney to be in favor of the patent system? Yes, we patent attorneys learn the patent law and how to navigate the system. Does that mean we receive special education–or is it propaganda–as to the justifiability of IP? If so, where is it? Sure, we are taught in law school that the stated purpose of the patent system is to encourage innovation, and public disclosure of inventions. Okay. So what? How does knowing the state’s line for a given law prove that it is justified?
The truth is most patent attorneys are in favor of patent law. Why is this? They have no special knowledge about its normative validity. Rather, they are self-interested, and have been subjected to positivist, statist, empiricist propaganda in law school. Quinn tries to turn this defect into an advantage by hogging to the biased patent profession the right to pronounce on these matters–and then ejecting from the profession anyone who bucks the union line. The patent bar of course lobbies for the system that butters their bread. They claim special knowledge to pronounce that the system is “necessary” for innovation, even though they have no proof of this. (See below.) They marginalize non-lawyers as not having enough expertise to weigh in. And anyone who does have expertise is ostracized if they point out that the emperor is wearing no clothes. They remind of leftists who will not tolerate an African American who opposes affirmative action–they impose their supposed “benefit” on him by force, which is bad enough, and then use this imposed “benefit” to silence his criticisms of it. Terrible. (See An Anti-Patent Patent Attorney? Oh my Gawd!.)
But though patent practitioners have an interest in promoting the system that supports them–just as FDA bureaucrats support the FDA, just as government school teachers tend to be in favor of government schooling, just as policemen and state judges are in favor of the state’s monopoly over justice–not all are won over by the propanda. Some just chug along, earning a living, while ignoring the cheerleading about how great our patent system is. In fact, I am not the only patent attorney who opposes the patent system. My friend Tony Diehl, registered patent attorney, is opposed to it, and knows what a state boondoggle it is. As I noted in The Morality of Acquiring and Enforcing Patents, law professor Michael Davis, also a registered patent attorney, opposes the patent system (for leftist reasons, I believe, unlike my own pro-property, libertarian reasons–but still); and Daniel Ravicher, Executive Director of the Public Patent Foundation (PUBPAT) and Legal Director of Software Freedom Law Center, and also a registered patent attorney, appears to be opposed to patents or at the very least has serious reservations. And no doubt many patent attorneys know the standard justifications given for the system are nonsense, but they don’t speak out because there is nothing to be gained from this except denunciations from cheerleaders like Quinn who will try to harm their livelihoods by telling clients not to hire them. So many are anonymous. As I wrote in Miracle–An Honest Patent Attorney!, I received at one point an email from a respected patent attorney, a senior partner in the patent department of a major national law firm. He/she insisted on anonymity–gee, I wonder why? He/she is not a libertarian. These are just his/her honest observations based on his/her long experience in the field:
Stephan, Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hostey] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA. I wish I had the “answer”. I don’t. But going to real opposition proceedings, special patent courts with trained patent judges, “loser pays attorney fees” trials, retired engineers/scientists or other experienced engineers/scientists being used to examine applications in their fields of expertise by telecommuting from their homes or local offices throughout the Country, litigating patent attorneys providing regular lectures to the PTO examiners on problems encountered in patent infringement cases due to ineffective or careless examination of patent applications, and the appointment of actually qualified patent judges to the CAFC, may be steps in the right direction.
Now this is an honest patent attorney. As I told him/her,
What is worse, to me, is when patent attorneys pretend to know, but of course, do not–and they know they do not, and they do not care. It is just dishonest. I don’t mind a patent attorney being in favor of the system for the honest reason that it benefits him and his clients. Just like retired people benefit from social security even if it’s an inefficient or unethical system. Or if patent attorneys just did their job and shut up about the “benefit” of the system. I will say that my point (not really in the letter, but expressed elsewhere — e.g., There’s No Such Thing As A Free Patent) is not only that is the system now probably “not worth it,” but that due to the subjective nature of value, it would never be possible to demonstrate that it is “worth it”. But that is a methodological point beyond most patent attorneys, who are utterly imbued with scientism and positivism.
And I have other patent attorney friends who skeptical as well. I’ve had dozens of conversations with patent attorneys, many of whom are mouthing the standard pro-patent line. I simply ask them, how do you know we need a patent system? How do you know the benefits accruing from it are greater than the costs of the system? What are these benefits, in dollar terms, what are the costs, and what is the net? I am always met with blank stares.
But let’s return now to Quinn’s screed:
My intention is not to get into a back and forth joust with those who believe the patent system does not spur innovation. In my experience there is simply no talking to people who hold those beliefs. They will hold those beliefs forever despite any and all evidence to the contrary, despite the laws of economics, the sensibilities and demands of investors and with total disregard for history itself.
It is in fact quite the reverse. Patent lawyers repeat over and over the state’s propaganda that IP is necessary for innovation. They believe that we are made overall better off by the patent system. This means that the value of the extra innovation spurred by having a patent system far outweighs the undeniable costs of the system. Okay–then what are these numbers? What is the net benefit of the patent system? Is it a billion dollars? A trillion? How does Quinn know it’s not negative? If he knows it’s a positive number, what is his evidence for this? I don’t know the costs. I don’t know the value of the benefits. (My educated guess is that the net cost is over $41 billion per year. But who knows?) I do know that every study that comes out concludes otherwise (see my post Yet Another Study Finds Patents Do Not Encourage Innovation). They are the ones in favor of the granting of state monopolies. The burden is on them, not on opponents. So where is their evidence?
They don’t pretend to know. They don’t take this seriously. They don’t have any idea of the costs, or the benefits, or the net. They don’t care about the costs–costs (patent lawyers’ salaries, say) are benefits to them, you see. They most they will do is trot out some off-the-cuff, non-serious remark that western countries are more prosperous and have patent systems; or we have had economic growth in America, coinciding with the patent system’s implementation. Wow. How rigorous. Never heard of the idea that correlation is not causation? Maybe the pro-property industrialized countries tend to tax and war and regulate and impose patent systems because they can afford it. (See Interactive Graphic Pretends to Illustrate How U.S. Patent System Has Driven American Economy; Prove that would have been invented without patents!.)
Back to Quinn:
Yet, I have to confess at being extremely interested in knowing how a patent attorney could come to such beliefs. Kinsella is used as a propaganda tool by anti-patent folks everyone who point out “even a patent attorney knows patents stifle innovation.” How is it possible that a patent attorney could believe that innovation would occur faster without patents?
The truth is we anti-IP libertarians have sincere, serious, good reasons to believe patent rights are false rights that do harm. See, e.g., my The Libertarian Case Against Intellectual Property: A Concise Guide; and other libertarian IP publications. If anything, my experience in the patent field shows me how much waste there is. It shows me what a threat to free enterprise patents are. It shows me that larger companies are just using this latest state monopoly grant as a tool to bludgeon smaller companies.
Quinn then disingenuously argues that if you are against patents, you are against technology:
The truth is that every civilization that dominated had advanced technology and innovation when compared with competing civilizations. Whether there were patents or not, advanced technology and innovation is something to be aspired to. Rather than choosing to tax the people and require free labor by unfortunate classes of people our nation has evolved to tap into one of the most fundamental and powerful motivation forces — greed! Because of greed individuals, investors and companies will devote substantial amounts of time, energy and funding to come up with whatever is next, whatever is better and whatever will make them money. If we don’t want a patent system and we still want the jobs innovation creates, the lifestyle advances that innovation creates and the life-saving drugs and treatments that innovation creates we need to dig deep into the greed gene and exploit it.
Yes, “greedy,” self-interested behavior is fine and good. I’m in favor. I’m a libertarian, after all. The problem with patents is not that they are too capitalistic: it’s that they are state privileges that intrude on the free market. I oppose patents because they undercut private property rights, not because they are private property rights.
And of course, technology and innovation is good. The mistake here is thinking there is market failure: that without the state’s interventions, there won’t be enough innovation. How anyone can honestly think the state can intervene and make things better is beyond me.
… I find it flat out bizarre that anyone could be of the opinion that patents stifle innovation. The truth is patents stifle innovation by the lazy, who would have never innovated anyway. Innovating is not for the faint of heart, and certainly not for the lazy, so why do we at all care what the anti-patent zealots think would happen in an unrealistic fantasy world where everyone simply works hard for the betterment of mankind and to assist others without regard to their own well-being or financial interest.
If Quinn does not understand why people can believe patents stifle innovation, he can do a bit of reading. He can start with the list of study after study concluding otherwise, collected in Yet Another Study Finds Patents Do Not Encourage Innovation; then he can read my The Libertarian Case Against Intellectual Property: A Concise Guide; and for a detailed examination of the utilitarian aspects of patents and why they discourage innovation, he can see Boldrin and Levine’s magisterial Against Intellectual Monopoly (free version online).
As for lazy–was RIM lazy when it heroically innovated and provided the magnificent Blackberry to tens of millions of customers, only to have over $600M extorted from it by a patent thug? Is the ever-innovating young company Facebook “lazy”–if they don’t pony us hundreds of millions of hush money to the patent predator nipping at it? Or is it rather than larger companies can rest on their laurels, protected from competition from smaller, hungrier startups, because their arsenal of patents allows them to achieve detente by thread of MAD with other, large, patent-hoarding companies, but to threaten startups who don’t usually have strong patent portfolios?
Update: I and others posted several good comments to the thread Reality Check: Anti-Patent Patent Musings Simply Bizarre. Quinn has posted a followup: Responding to Critics: My View on Patents & Innovation. His post makes it clear that it’s not worth responding to him any more.
Update 2: Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?
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Ok libertarians, show me a contract that doesn’t actually require someone to do something or doesn’t prohibit someone from doing something. What good is a contract if it’s “up to you” whether or not you feel like keeping the terms?
Libertarian Bullshit,
” Then you can’t ever sign a contract, because any contract would be REQUIRING and/or PROHIBITING certain things (and it’s FRAUD if you violate the contract)……. What good is a contract if it’s “up to you” whether or not you feel like keeping the terms? ”
That’s not the point. A contract may be signed and remain enforceable if it specifies what precisely each party commits to deliver to the other. There exist a whole range of areas where people may thus enter into contracts with each other. Such contracts will clearly be enforceable, including penalty clauses that are clearly specified and quantified/quantifiable.
A contract will become unenforceable if it includes vague and unspecified terms the meaning and value of which are subjective and can never be estimated with certainty. In particular, you can never “contract” away your Liberty just as I cannot do that to mine. That is tantamount to saying that slavery is alright because you agreed to it on your contract. I am sure you are not arguing for “slavery by contract”. If you do enter into a contract of that kind, it would be extremely foolish on your part to do so (now that you understand the meaning) and you would richly deserve to have your “contract” thrown out of court.
Thus, the point is that if you want to protect your invention, a contract of the kind you mentioned is a poor choice. You need to think harder. You need to come up with a new business model that serves the purpose. You need to recognise the fact that you cannot sell me a product that becomes my property and then require that I should not try to understand or replicate the idea. Laziness should not take you (or me for that matter) to seek the help of a thug to settle disputes in our favour. If you invite the devil over for a feast, it won’t be long before you become the devil’s feast yourself.
Bala,
Why can’t you contract away your Liberty? What is wrong with slavery by contract?
Brian,
Actually, the problem is with slavery, contractual or otherwise. You need to decide whether human beings can be bought and sold and, more importantly, owned like other assets. We do that to other animals and physical goods, but are we ready to do it to ourselves?
The point is that it is in the principle. If you accept the principle that slavery is alright if it is by contract, the same can be turned back on you. So, in enlightened self-interest, you would turn around and say precisely what I said.
Further, please specify how you would enforce “slavery by contract”. I can imagine what it would involve and it really puts me off. I would feel like the lowest life-form on earth if I were to act thus. How about you? In addition, no one who accepts Liberty as inalienable would help you enforce your contract. You will need to take the help of someone who does not see Liberty as inalienable to enforce it. That person is sure to be armed to the teeth to make this enforcement possible. Where does that leave your Liberty? Please make a choice.
“A contract will become unenforceable if it includes vague and unspecified terms the meaning and value of which are subjective and can never be estimated with certainty.”
Nothing vague about “no unauthorized reproduction”. You can use it but you can’t copy it as a condition for being able to use it; why is that so hard to understand?
“You need to decide whether human beings can be bought and sold and, more importantly, owned like other assets.”
People are bought and sold all the time. It’s called employment. A worker sells himself for a paycheck every week. The employer can specify whatever terms he wants, including 16 hour days with 8 hours sleep, 7 days a week, if both parties agree. If a worker doesn’t want to do it any more, he can “buy his freedom” by forfeiting future earnings.
Libertarian Bullshit,
” Nothing vague about “no unauthorized reproduction”. ”
I agree. There is nothing vague about it. The infringement of Liberty and the clear intent to do so is so obvious that even a blind man can see it. I must have been worse than blind to miss it the first time around.
Simply put, the term “unauthorised reproduction” implies that in order to do something with MY property, I need to seek your authorisation. So, I am to use MY property with YOUR permission. How sweet of you!!!
I hope the problem with patents is becoming clearer.
” People are bought and sold all the time. It’s called employment. A worker sells himself for a paycheck every week. ”
Most ridiculous argument. Slavery is when a person’s Liberty is taken away. A person who can walk away from a job can by no means be said to have lost his Liberty and hence be called a slave.
By any chance, are you used to working in a place where people are chained to their seats and whipped to do the job with no option of walking off?
In summary, employment is not slavery. It is a promise to work against the commitment from the employer of payment of a specified (fixed and/or variable) amount. Failure to deliver (on the part of the employee) does not imply anything other than the loss of the job. Please show me the “slavery” bit.
“I need to seek your authorisation. So, I am to use MY property with YOUR permission. How sweet of you!!!”
That’s right, just like ANY OTHER CONTRACT that REQUIRES you to use YOUR property in a particular manner.
Libertarian Bullshit,
” That’s right, just like ANY OTHER CONTRACT that REQUIRES you to use YOUR property in a particular manner. ”
You have no business telling me what I do with my property unless it infringes on your Liberty. Therefore, it is precisely clauses of the kind you are hinting at that will be declared null and void in court because that would be a violation of my liberty. You really seem to be saying that slavery is alright if it is contractual. Quite an interesting viewpoint.
Great post, exposes guild mentality.
How much do you charge and where are you located
I live in Watertown MN. It is about an hour away from Minnapolis and close by St. paul.
I is about patents for inventions
I can’t wait to hear back from you!
Thanks
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