They get a measure of protection, sure. In exchange they have to come clean on their discovery.

The disclosure has to be sufficient that a person who is an expert in the field could duplicate it. That is the standard for issuance of a patent, read the patent law! So when the patent expires the whole of society can benefit from the new invention. Without that people might keep their discoveries secret. It’s a quid prop quo.

The other value that a patent has today more than ever, especially in biotech is that it allows research to be funded. What venture capitalist would fund clinical research and testing, which might cost hundreds of millions of dollars if competitors could just steal the new product as soon as it is sold? The competitors naturally would save millions in research costs. How can you compete with that and do original research?

Note that I did not mention software patents. I think that’s a ridiculous idea.

Are you kidding around in saying that a patent “…protects US from those that make marvelous discoveries and would otherwise keep them secret”? You’re not saying that the idea behind a patent is to protect society from individuals wanting to keep their ideas to themselves are you?

Your take on patents is wrong. The main purpose of patents is covered slightly in the first footnote.

Patents do not protect the patent holder, they are granted to protect US, the people. Patents serve mainly to ensure new art is disclosed for the good of society.

How would you like someone to cure cancer, keep it all to himself and never tell anyone?

With a patent he can sell it, he has to disclose it to get the patent. Others can read the patent and improve on it if they can. It protects US from those that make marvelous discoveries and would otherwise keep them secret.

Chris, I have covered all this in the writings noted above.

If you see the absurdity in this position, then there’s hope. If you don’t, then I guess there’s no point in arguing with you.

I’d be interested Stephen if you also do not believe that a copyright (say, of a novel) is property, and if not, on what grounds.

My point was that this article addressed the utilitarian arguments for patents, not rights based arguments, and that the proper justification of patents is rights-based. Just because someone else is defending the same CONCLUSION as mine does not make them my ally. It’s a classic non sequiter to state that we are allies. I could likewise say that a communist denies patent rights for Marxist reasons, and it would be silly for me to say he is therefore YOUR ally, just because your conclusions (without reference to what gave rise to that conclusion)are the same.

Chris, by perverting the word “property” to refer to non-scarce, non-exclusive, abstract things like ideas and information, you pervert morality itself. “Intellectual property rights” are the very opposite of true property rights.

With true property rights, I can do whatever I want with the physical property I own. I have no right to control what you do with yours. The state might recognize my property rights, but it does not create them, and it is not needed for me to protect my property.

Under a patents and copyright regime, I cannot do whatever I want with my physical property, because some patent or copyright holder might get the state to interfere. Likewise, by acquiring patents, I can interfere with your right to use your own property. IP laws are purely a state creation, and they do not exist without the state, nor can an individual protect his IP on his own, unless he controls the thoughts and property of all other people.

You simply cannot pretend that copying ideas or information is a crime without negating real property rights.

The only sense in which I can own an idea is in the sense that I may have and use it. Excluding other people from owning copies of my stuff is not a definition of ownership or property.

Copyright 2005 Paul Aubert – All Rights Reserved

I am surprised (and dissapointed) to see this argument on this web site, of all places. The author has no grasp of the correct philosophical basis for patents.

Who does, I wonder?

One of the proper functions of government is the protection of property. Patents properly observe that the mind is the source of production, and that the innovation is an INTELLECTUAL piece of property, which the state can properly observe and protect.

This is just an assertion. It’s question-begging to state intellectual innovations are a type of property–that’s the issue. There are various reasons set forth to justify this assertion: some are utilitarian, and some are more deontological or natural rights based. My article here was simply addressing utilitarian arguments, and pointing out that if they point to the benefits, they must also take into account the costs. I have written elsewhere (see my 2 articles in note 2) about problems with other justifications.

It is NOT the state’s job to foster innovation. That is NOT the purpose of the patent system. It is NOT simply a matter of cost benefit analysis.

So say you. The Constitution’s grant re patents is explicitly cost-benefit, and that is the argument used by most of your fellow IP proponents.

In fact that has nothing to do with it. We don’t conduct cost-benefit analysis to decide whether the military or police should protect say, one company’s prodcution plant. It is done on principal. Same with patents.

Even if this were true, this is not germaine. The argument here is whether patents should be protected as rights; and some people say “yes” *because* they think it’s a net benefit. To this argument, it is relevant to ask about costs.

Thus, the entire essay argues against a strawman. It may well be that SOME argue for patents based on fostering innovation.

Actually, most people argue for it on these grounds–and these are your allies. Moreover, even those who claim to have a natural-rights or similar type basis for IP, often confusingly mix in utilitarian concerns–like Ayn Rand, J. Neil Schulman, etc.

That is simply a confession of their intelletual confusion as well. It does not follow that because THAT is a bad argument that patents should not be issued and protected by the state.

Right, and I didn’t claim this here: I was here only addressing one argument in favor of IP. I did not conclude here even that the costs outweigh the benefits–I only state that those who trot out its benefits must also be honest and subtract its costs.

Jon:

“Without patent law, I (as inventor and holder of patents) would not publish the relevant information and make sure that the correct mechanisms for implementation are described: I would, however, publish misleading information, if I had to publish, to ensure that the technologies were not advanced by others.

“This is the practical purpose of patent law: The article seems to me to be fraught with practical problems.”

Even if your argument is correct (and I am not sure it is–after all you wasted time writing this reply, even though you got no monetary benefit from this creative effort), this is merely a benefit of having a patent system–that it encourages publication of information that would otherwise be kept secret for a long time. Okay, this may be one of the benefits of a patent system. It is then reasonable to ask what are the costs of such a system, and if they are greater or smaller than the benefits.

This is the practical purpose of patent law: The article seems to me to be fraught with practical problems.

It is NOT the state’s job to foster innovation. That is NOT the purpose of the patent system. It is NOT simply a matter of cost benefit analysis. In fact that has nothing to do with it. We don’t conduct cost-benefit analysis to decide whether the military or police should protect say, one company’s prodcution plant. It is done on principal. Same with patents.

Thus, the entire essay argues against a strawman. It may well be that SOME argue for patents based on fostering innovation. That is simply a confession of their intelletual confusion as well. It does not follow that because THAT is a bad argument that patents should not be issued and protected by the state.

Ditto.

But those who use patent system are not guilty.
To be blamed for is the existence of these positive laws.

Patent law is considered to be the root of all evil.

I have been trying to scrub my hands clean ever since. Ha.

In my current article, I was addressing a narrow point. But as one can see, from the previous blog post, in this case utilitarian thinking does lead to some to call for redistribution of wealth, which is of course socialistic and statist.

Giovanetti said he himself favors an unlimited natural right to IP, but the Constitution does not seem to endorse this. This made me remember–his group, IPI, has posted the pro-IP pieces by Bandow and Epstein (click here, then click “Intellectual Property” on left side; then “Prescription Drugs”). As I said to Giovanetti, I admire Epstein but I did criticize him here. Also, I pointed out that Cato (rightly) backtracked after Bandow endorsed what is arguably (and in my view is) protectionism (see Re: Cato on Drug Reimportation, and Cato Tugs Stray Back Onto the Reservation).

He asked a question about my being an IP attorney who did not believe in IP law. MY reply:

I don’t think IP law (in particular, patent and copyright, and much about federal trademark law) is justified. And yes, I believe this even though–or maybe because–I practice IP law. There are also probably tax attorneys who think the tax code is an abomination and who would be unemployed if it were abolished, just as there are probably people who drive on public roads who also believe they should be private, and people who work in public universities who think all universities should be public, and people who pay FICA taxes and receive social security benefits who think social security should be abolished. There may even be a few employees of the Tennessee Valley Authority who are happy to keep receiving a paycheck but who really think the program ought to be abolished.

Surely this cannot be surprising to you. Surely it is not surprising that not everyone engaged in a given profession accepts the self-serving makeweight (and lightweight) arguments advanced by that same profession.

Surely you would not say that merely because someone is engaged in a profession that only exists because of a given policy or institution, that that means that the institution is therefore somehow justified.

Surely you would not say someone is prevented from disagreeing with aspects of the system just because one is part of that system. By similar logic, no black can ever oppose affirmative action–it would be said he has no standing to complain since he himself benefited by the system. Etc. Too convenient of an argument, IMO.

Being an IP attorney helps me understand the exact nature of this legal institution. By my lights, it is incompatible with a private property order, and with liberty and justice.