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Source link: http://archive.mises.org/7829/patent-failure-new-book-by-bessen-muerer/

Patent Failure — new book by Bessen & Muerer

February 25, 2008 by

From How Judges, Bureaucrats and Lawyers Put Innovators at Risk

In “Patent Failure; How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,” (Princeton University Press,
March 2008), James Bessen and Michael J. Meurer consider many reforms, most of which have also been advanced by other people. Of course, the devil is in the details. The authors readily admit that “In presenting this list of policy ideas, we admit that we really do not know what it will take to substantially improve patent notice. These policy reforms move us in the direction of an effective patent system, but we do not know whether they are sufficient to get us there:”

Should be a decent book, given what I’ve seen from the authors so far. Of course the problem is not really judges, bureaucrats, and lawyers–it’s the law itself, which is a creature of the legislature. Given a patent scheme, judges, bureaucrats, and lawyers are bound to screw it up or game the system–which is one reason the law is a bad idea in the first place.

{ 12 comments }

Person February 25, 2008 at 3:07 pm

Kind of like how it’s a given that judges will mess up property law for physical goods, as seen in how that’s what actually happened?

Stephan_Kinsella, you have a very fundamental philsophical problem with your position that you have not resolved. You claim IP is not justified, but EM spectrum rights are. You claim that this is because “IP isn’t scarce”, while the EM spectrum is. Yet, just as one can infinitely use an idea, people can infinitely use a radio frequency — it will just degrade the experience.

But then wait — lack of IP, according to a lot of people, degrades the experience of the ideas that are produced.

So why do transmitters get to claim exclusivity for their “intended purpose” of EM spectrum use (information transmission), but creators don’t get to claim exclusivity for their “intended purpose” of idea creation? Your distinction is arbitrary, and you basically admit as much in the discussion surrounding these posts.

Give up on your childish, haphazard attacks on IP and come up with something more rigorous.

Grant February 25, 2008 at 3:58 pm

The EM spectrum is not information in itself, but a medium of transmission. No one can claim to own the English language, but one can claim to own a dictionary, hard drive, or EM transmission that uses English.

I’d also note that EM transmission rights can be homesteaded. Their homesteading certainly isn’t as clear as homesteaded farmland or housing, but its still possible.

In economics terms, an EM band is rivalrous (since only one transmission can work over a given band in a given area at once) and non-excludable, making it a “common good”. So additional EM transmissions over a given area do degrade the experience. The limits of technology prevent infinitely small frequencies from being used to transmit data.

Information is both non-rivalrous and non-excludable, meaning additional consumption of it does not degrade the experience. If I read Shakespeare, my neighbor’s enjoyment of Shakespeare does not suffer. Yet if I broadcast on the same frequency he is broadcasting on, his experience does suffer.

You state the experience is degraded when information is copied; I think this may be a misunderstanding of economics. Price is not the same as value. When information becomes non-excludable its supply becomes infinite (or near-infinite) and its price drops. The price isn’t indicative of its utility to consumers at all, its just the product of supply and demand like any other price.

Kevin B February 25, 2008 at 4:57 pm

“The EM spectrum is not information in itself, but a medium of transmission.”

The electromagnetic (EM) spectrum is the range of all possible electromagnetic radiation – not all actual electromagnetic radiation. There is an enormous difference there.

Only actual radiation may be being used as a medium., but hypothetical radiation cannot be being used. The EM spectrum cannot be owned because it isn’t an actuality.

Grant February 25, 2008 at 5:32 pm

You’re right on the definition of course. We cannot “own” a spectrum in the same manner in which we own an airplane. However, we can own the EM waves we transmit. Like airplanes, EM waves are destroyed when they collide with each other, so some “rights of way” must exist to keep that from happening. The owners (transmitters, in most cases) of EM waves have their rights violated when someone transmits waves which interfere with their own.

What is owned is the right to transmit over an EM band covering a certain area. Rights are never actualities, but potentials. The right to do some thing is not the actuality of doing that thing, but merely the potential to do so. We cannot, for example, say the “right to pick one’s nose” is a tangible, actual thing. Likewise, the right to transmit over an EM band covering a certain area does not represent ownership of the band itself, but simply the potential to use it without destructive interference.

Information itself is quite different, because its existence (qua information) does not interfere with any other information in existence.

Kevin B February 25, 2008 at 5:45 pm

“However, we can own the EM waves we transmit. Like airplanes, EM waves are destroyed when they collide with each other, so some “rights of way” must exist to keep that from happening.”

Agreed, but correctly assigning the right to the EM wave rather than a slice of the hypothetical spectrum opens up questions regarding past and present trespassing of EM wave right-of-way.

For instance, say a farmhouse has been in use before the first transmitting tower is built nearby. Who has the right of way for EM waves through the farmhouse?

nick gray February 25, 2008 at 7:27 pm

Here is a novel solution, which is based on property rights- let licencing rights devolve to the lowest level of government, the county, and let the county decide what to permit across its’ airspace. Change copyright laws so that it is only enforceable on ‘public’ lands- if you copy something on your own property, no trouble, but if you try to advertise across public space, thus infringing public copyright, no end of troubles!
This would be a solution based on strict enforcement of property rights, and thus something that libertarians should endorse.

Grant February 25, 2008 at 7:54 pm

Kevin, you say:

Agreed, but correctly assigning the right to the EM wave rather than a slice of the hypothetical spectrum opens up questions regarding past and present trespassing of EM wave right-of-way.

For instance, say a farmhouse has been in use before the first transmitting tower is built nearby. Who has the right of way for EM waves through the farmhouse?

I don’t see how a farmhouse would have claims to rights over non-visual parts of the EM spectrum. They’d have rights to the air, land, buildings, and everything they interacted with. Obviously visible light is used by the farm houses’ occupants, but most of the EM spectrum would not be. I don’t see how they’d have any claim to this, any more than some oil which might reside a mile below their house, or a plane a mile above.

Of course it is possible that a single house could have used the EM spectrum for something personal before a big transmitter came online and violated their rights. In practice, this would probably rarely happen, because parts of the spectrum suitable for short-range communication aren’t the same parts suitable for long-range communication, and manufacturers of radio devices would almost certainly design their products to be compatible with one-another. Many radio devices are designed this way (with multiple channels, etc) which operate within the bands allocated to them by the FCC.

In my opinion, enforcement would not be difficult because in most instances it wouldn’t be necissary: all involved parties have incentives to find channels where they are not interfering with one another. I think Coase’s examples fit well here (or the example of personal radio devices – how often is enforcement needed there?). Only those people who purposefully violate others’ rights by destructive interference would cause problems, and hopefully would be punished by law.

IMO, YMMV.

Kevin B February 25, 2008 at 9:24 pm

Grant: “I don’t see how a farmhouse would have claims to rights over non-visual parts of the EM spectrum.”

Are you saying that the farmhouse owner has no claim to the right of way of physical objects through his house?

Millions of tiny airplanes are bouncing off his wall, his cows, his copper cables, his wife, and his daughter. You must ask him for permission to stay the night, but you had better not touch his daughter – not even with your electromagnetic radiation.

Peter February 25, 2008 at 9:44 pm

Are you saying that the farmhouse owner has no claim to the right of way of physical objects through his house?

Depends whether they interfere with potential uses of his house which he has presumptively homesteaded rights to.

You must ask him for permission to stay the night, but you had better not touch his daughter

Since when is the daughter his property to control access to? If the daughter wants to be touched – electromagnetically or otherwise – …

Curt Howland February 26, 2008 at 7:18 am

> Yet, just as one can infinitely use an idea, people can infinitely use a radio frequency — it will just degrade the experience.

Person, for someone smart enough to not only use a computer but to also write with it, you sure do miss where you contradict yourself.

The use of an idea by me does not “degrade the experience” for anyone else. Yet you here state the precise reason for using right-of-way, homesteading and other well established material property concepts in the common use of radio: If we don’t, it will degrade the experience.

Kevin B February 26, 2008 at 2:27 pm

Me: “Are you saying that the farmhouse owner has no claim to the right of way of physical objects through his house?”

Peter: “Depends whether they interfere with potential uses of his house which he has presumptively homesteaded rights to.”

Do you think that you have homesteaded the right to irradiate yourself?

Me: “You must ask him for permission to stay the night, but you had better not touch his daughter”

Peter: “Since when is the daughter his property to control access to? If the daughter wants to be touched – electromagnetically or otherwise”

He doesn’t have to own his daughter to put such a condition on an overnight stay in his house.

Person February 28, 2008 at 8:17 am

In case anyone’s still reading this thread, I figured I’d post this. I wrote this a few days ago but couldn’t post it due to being banned. I toned it down quite a bit so as to avoid being banned in the future.

Grant, I don’t think you adequately accounted for the nuances in the parallels I claimed.

First of all, a note: prices are misleading and add zero insight in a situation like this, where we’re debating which property rights should exist, which significantly influence what prices form. You should not use them as a basis for argument.

Now, back to the comparison of the two: information may not be rivalrous, but that’s not what the creators are fighting over. Keep that in mind when comparing the situations! What creators want is an *exclusive legal right* to form a certain pattern. (Just as a transmitter wants an exclusive legal right to form a certain wavelengh via a radio transmitter.) An exclusive legal right is, by definition, rivalrous!

Finally, you admit there is a parallel when you say: “additional EM transmissions over a given area do degrade the experience”.

Aha! So using the EM spectrum is rivalrous because multiple people using it degrades the experience! But wait — the same thing happens in the idea space: multiple people using the idea degrades the experience.

But you disagree that multiple users of an idea degrade the experience by reference to an argument about prices that I showed was irrelevant. Let me clarify in what sense multiple users degrades the experience:

I, as a creator, have my experience as a creator enhanced when my creations can’t simply be copied. I, as a patron of creative works, have my experience enhanced when creators can have exclusivity because that means more and better creations get made, like Lord of the Rings.

It’s all subjective — and yep, multiple people using that idea sure seems to degrade my experience and cause rivalry.

Now, you may indeed find such complaints ridiculous. And indeed, a legal right to exclude others may indeed be ridiculous. However, with respect to intellectual works, we do have, unambiguously a case of rivalry. (Multiple entities cannot have exclusive legal rights to form a patter.) Therefore, any argument predicated on the non-rivalrousness of IP, such as Stephan_Kinsella’s whole paper, is in error.

Curt_Howland: You mean it doesn’t degrade the creator’s experience when other people can’t use it. What about the people who subjectively like what they think IP rights bring? Those *are* a degradation of experience.

Degradation of experience, as I said above, is subjective

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