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Source link: http://archive.mises.org/7058/lets-bring-back-the-good-old-days-of-english-patents/

Let’s Bring Back the Good Old Days of English Patents

August 31, 2007 by

It’s somewhat striking that modern libertarian advocates of patent rights seem blithely unaware of the utterly monopolistic, completely unlibertarian origin of “patent grants” by English monarchs. At the very least, they ought to be a bit uncomfortable that patents arose in this manner.

[Note: Update: Patent-Seeking as a Defensive Move -- Then, and Now]

Interestingly, as reported by the Patently-O Patent Law Blog (The Roots of Patent Policy: Rethinking Early English Patent Policy),

Dr. Chris Dent, an Australian Researcher, has written an interesting new paper on the history and value of original English patents. Although invention was not the basis of the patent grant, Dent argues that they may still have been based on sound public policy goals.

Dent concedes (from Patently-O’s synopsis) that “The manner in which the early modern English monarchs–Elizabeth I and James I–granted patents of monopoly is not seen in a good light in current legal discourse. There are many tales of the nepotism that was, allegedly, rife and the public outrage at the abuses of the Crown–circumstances that only ended with the “triumph” of the Statute of Monopolies in 1624.” Right. No surprise.

However, argues Dent, “This simplistic understanding does not do justice to the good intentions of Elizabeth and James; and, to an extent, may be inaccurate.” Amazing! The opposition to nepotistic and utterly unjustified state monopoly grants is “simplistic,” and does not “do justice” to the monarchs’ “good intentions”. Ha! Dent actually argues that

three key policy objectives informed the monopolies awarded by the two monarchs. … These goals–increased employment levels, an improved balance of trade with other countries and the better regulation of industries–not only appear to be modern, but also may be understood to have been fundamental to the modernisation of English society and its economy. Examples of these goals in practice include the granting of monopolies for water pumping inventions to more effectively mine for minerals (increasing both goods production and employment); grants for the establishment of local industries, based on imported technical knowledge, to reduce the reliance on foreign goods; and the regulation of manufacturers to improve the quality of goods available for sale. Economic historians note that the English economy underwent significant change in the 16th and 17th centuries; this change may have been, in part, a result of the policy actions of the Executive of the time. Actions that included the grant to individuals and companies of the now-maligned grants of monopolies.

So here we have it: not only is the monopolistic origin of our modern invention-based patent system not embarrassing, it was a good thing, similar to our modern legislative “tweaks” of “unbridled” capitalism. Seen in this light, modern patents and ancient ones have a lot in common.

{ 61 comments }

Jean Paul September 6, 2007 at 9:54 am

ktibuk,

Not the first comer; the first CLAIMER. I think maybe this distinction can unravel a few things?

To own a thing, you must assert and maintain a claim to that thing. If there are social or technological means established to sustain your claim in your absence, on your behalf, wonderful. Otherwise absence is abandonment.

Did the first stroller through the ten acres mark the trees with red spraypaint as he went? Did he post notices saying, “bob claims these ten acres where marked, his claim stands and he will return in a year to enjoy his land”? Did he stand in the middle of the ten acres with a loudspeaker constantly blaring his announcement over a ten acre radius, “these ten acres are mine”?

Note that this doesn’t necessarily require ‘mixing labor’ with any part of the ten acres. It just requires communicating claim, by whatever means can be employed.

Anthony September 6, 2007 at 10:28 am

JP is correct, in part. Use must be combined with a claim. Individuals who traversed through now owned property at most would enjoy easements to pass through, insofar as they made no claim (and no emborderment, which is necessary to demonstrate that land has been appropriated.) To claim land one must be the first to put it to productive use.

The problem with appropriation by mere verbal decree is that it can be used to own an entire planet, for instance, provided one can defend the claim. By contrast, productive use puts a heavy constraint on how much one can take for themselves.

ktibuk September 7, 2007 at 3:45 am

Ok Jean Paul,

Lets say while he is strolling through he shouts “In the name of property rights I now claim all this land to be mine” and keeps strolling.

He doesnt need to do nothing else, if we hold Kinsellas new homesteading rule. No mixing labor, no putting it to productive use as Anthony said, or mark the trees with paint.

He literally just claims it.

Does this claim make the land his?

Jean Paul September 7, 2007 at 10:16 am

Ktibuk, I think the claim is valid… but when he keeps strolling, absent technological/social measures in place to sustain the claim, then that’s abandonment, no?

Just like various detritus that dislodges from the body (old skin, hair, you know, gross biology stuff) was absolutely, incontestably yours when it was a part of you, but obviously does not remain so when it falls.

Jean Paul September 7, 2007 at 10:44 am

Anthony, agreed, there must be other ‘considerations’ at work to prevent the (in my subjective opinion) absurd case of someone announcing, “I hereby own all that is unowned.”

You may argue against the above because it is nonspecific – the above claim is a function without an argument and therefore without a value. Until applied in a given case, it refers to nothing. Does not seem reasonable to me.

Lets try this one: “As first claimant to the prior unowned specific X, I hereby own specifically X”.

I don’t think you can deny this claim on the basis of the size of, distance to, degree to which my actions have modified, or any other attributes particular to, X. Whether X is an apple, a tree, an orchard, a mountain, a continent, or a planet. To tie the validity of the claim to the nature of the X opens a whole can of definitional worms, infinitely prone to subjectivity and thus conflict.

I would say the only criteria for objectively rejecting a new claim is the existence and nature of standing claims.

Kevin B September 7, 2007 at 2:18 pm

ktibuk: “You might say stealing requires effort thus someone stealing car has mixed his labor with it.

But you would be as absurd as claiming copying a copyrighted material is mixing labor.”

One cannot gain rights to an object by mixing one’s labor with it if all the property rights to the object are already held by someone else.

One does not gain ownership to a new object by mixing one’s labor with the initial/template object. One gaines ownership of a new object by mixing one’s labor with the new object.

Robert M. September 7, 2007 at 5:14 pm

Stephan Kinsella : [comment deleted for incivilit. Rober M: please watch your manners. --Eds.]

Eric: I agree with Person, in that the FDA might make things more costly, but they still take years to research these drugs. And not counting FDA costs, it still costs millions of dollars. I dont see a businessman investing that much to make a drug that will be reverse engineered almost immediately. I know the government causes most problems, but I can’t put this one on the government. I’d say that this is one of the few things that they do right.

Robert M. September 7, 2007 at 5:55 pm

Oh by the way. I CLAIM THIS UNIVERSE AS MINE. Since you all occupy the area that is now mine…I expect my check shortly.

ktibuk September 8, 2007 at 1:15 am

“Ktibuk, I think the claim is valid… but when he keeps strolling, absent technological/social measures in place to sustain the claim, then that’s abandonment, no?”

No it is not abandonment.

You dont need to be in possession of your property at ALL times. Abondonment is something different and it also implies the need for mixing you labor.

Abondonment presupposes you mixed your labor at one time but you don’t care for the property, thus don’t mix your labor with it anymore.

It is not about physical presence.

Jean Paul September 8, 2007 at 12:23 pm

ktibuk: “You dont need to be in possession of your property at ALL times … It is not about physical presence.”

Jean Paul: “[without] technological/social measures in place to sustain the claim [in your absence] … [it is] abandonment”

I’m pretty sure there is no contradiction here?Possession is just one way among many to sustain a claim – but as I did concede, not the only one. Other means could be signs, fences, locks, neighbors who speak on your behalf, name & address & ‘return to owner’ stitched into the inseam, etc.

…but an unsustained claim IS abandonment. Could you maybe even say – by definition?

ktibuk September 8, 2007 at 1:36 pm

Jean Paul: “Other means could be signs, fences, locks, neighbors who speak on your behalf, name & address & ‘return to owner’ stitched into the inseam, etc.

…but an unsustained claim IS abandonment. Could you maybe even say – by definition?”

When you say claim what do you really mean?

Being there physically before anyone else and just speaking words that you claim it? You claim it once out loud and it makes it yours, and you have to keep saying it out loud at certain intervals to keep you property?

Abondonment means not taking care of the property anymore. Taking care implies the ommited principle, mixing labor.

In abondonment mixing labor principle is more important than first comer/claimer principle since your ownership doesnt end when you physically leave your property.

You may leave the land temporarily or rent it out and still care for it, fix it up etc.

This means you keep mixing your labor, and it also means you haven’t abondoned the property.

First comer/claimer principle needs physical presence. If it was the only princeple needed for homesteading then by the same logic anyone would lose his ownership once he left the property physically even for a short while.

If he can keep property while not being there physically anymore, means there is something else needed.

And that is the mixing labor princeple.

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