About “intellectual property”
Posted: May 18, 2011 Filed under: Law 6 Comments »Lately I was bothered by some thoughts related to patents and “intellectual property”. If something bothers me at this point, that is because something beyond my logic and common sense happens to exist around me.
The logic beyond the concept of property is that the matter that humans take from nature and transform in something usable is naturally limited. We cannot freely dispose of this matter. There is of course a part of subjectivity in the perception of something being limited or usable but commonly, when humans think that a resource is usable and limited, they regard it rather from the private property perspective.
How can something so abstract and boundless like an idea be considered property? Well, I think that an idea belongs to an individual or a group. An idea can be MINE, YOURS or THEIRS. But since when, the fact that I have an idea of doing something implies that no one else has the right to do it? This is the most childish thing I have ever heard of. I remember, being a child, how upset I was when someone else spelled my ideas before me. I was frustrated, crying and yelling all around : << That’s not true, I was the first to have this idea! >>. I guess the society is not mature yet if something arbitrary like “intellectual property” exists.
I can understand that someone who produces an idea wants his idea being recognized as HIS. I can understand that the satisfaction increases when an idea is recognized officially. But I can’t possibly understand the fact that no one else is allowed to use this idea. When I have an idea, I put it on paper. I put the paper in my drawer. Here is what the logic tells me that could happen (and you can replace me with an enterprise, is the same thing):
i) I have the possibility to work on my idea. I begin to manufacture the product I imagined or I begin to manufacture a product using the process I imagined. It is possible that someone penetrates my property, copy the paper and use it or sell it to someone who can use it. This is against my will so I call the police and I demand an investigation. Of course, if someone starts to manufacture the same product or use the same process I imagined that someone will be the main suspect. Those who will be found guilty will pay the damages that I suffered economically and morally. Maybe they will go in prison. This is justice. Of course, there are risks. Maybe the thief and his collaborators will never be discovered. There is the same risk as for any other theft. I do believe in time people will understand that this kind of theft is very bad because it will lead to the reestablishment of the patent system, thus harming everyone (stealers included).
ii) I have the possibility to work on my idea. I begin to manufacture the product I imagined or I begin to manufacture a product using the process I imagined. After a while I learn that somewhere else, someone produces an equivalent product or use an equivalent process. Well… so much for that. This is life; there are many people around and ideas are coming from all over the places. I cannot say if that someone had the idea a minute before or after me, or if he stole it from me in a very professional quiet manner. If I have an advance, then I can be the first to finish the product so I can make some noisy publicity about being the first. If it’s a process, I can make some noise from the start about being the first one to use it. Eventually, the one who will succeed will be the one who is more efficient: the one who has the lowest costs of production and a decent marketing.
iii) I don’t have the possibility to manufacture the product I imagined or to use the process I imagined. Then, I can wait for a while in case I believe that soon I will be able to do it. If not, I can search investors or I can sell it in an auction. The protection of my idea lies in my skill of keeping secret the essential parts of it and, of course, in my negotiation skill. It is my responsibility to protect my idea and to obtain a good contract. Only a contract, once signed, can be enforced by law and no one can force me to sign. Humanity has at least the maturity to understand that aggressiveness is bad in the end for everyone, including the aggressor.
The patent system, beyond his absurdity, kills the imagination and drives prices up. By patenting my idea I just tell everyone: << Hey, guys, I have this idea. Now you can stop thinking of doing the same thing! Any way I told you how this can be done… Moreover, 20 years from now I will decide who will do it, regardless the cost of production. If some of you will have the same idea, you will have a bitter surprise when you will not be allowed to do it because it was already patented! >>. Do you know that some ideas are waiting 20-30 years to be realized just because the inventor doesn’t have the possibility to do it and the companies in the field prefer to wait and prepare 20 years instead of paying the patent? With the condition humans are enough mature to realize that being fair is good for all (and I think is almost the case for developed societies), the natural way of doing things favors imagination, creative concurrence and lower costs for everyone.
In the end, I can’t stop thinking that the patent system makes use of an army of administrative officials and is considered a reason for the State to exist. I can’t stop thinking that in the first place the patent was introduced not by some Statesman’s will to make an universal good but by big companies with strong influence in the American Congress, wanting to acquire monopoly. I’m sick of hearing that freedom brings monopoly and that the State is there to watch. The State itself is a dangerous monopoly. I’m sick of paying taxes when I know that I’m paying, against my will, for something as absurd as the patent system.
Ideas are not coverable by patents, only substantive and explicit technologies and applications of said ideas are covered. And I doubt that the full description of a method to crack organic mollecules and separate their useful parts may suddenly occur to you while asleep.
i) “I begin to manufacture the product I imagined or I begin to manufacture a product using the process I imagined”
There is no need for a would-be thief to break the law: he would simply buy one specimen of my product and reverse-engineer it.
ii) “After a while I learn that somewhere else, someone produces an equivalent product or use an equivalent process. Well… so much for that.”
1. I love the etics of this: some big ass company steals my process (see above) and drives me out of the market. Nice to use the sucker’s work for free;
2. An equivalent product/process would not be covered by my patent.
iii) ” I don’t have the possibility to manufacture the product I imagined or to use the process I imagined.”
1. In such cases most patent laws compel the inventor to license inventions to third parties, in order to be be exploited for the benefit of all people;
2. OTOH, the absence of patent laws would reduce the incentive to disclose inventions and would promote their sale as trade secrets to companies that prefer to keep them in the back drawer.
“Do you know that some ideas are waiting 20-30 years to be realized just because the inventor doesn’t have the possibility to do it and the companies in the field prefer to wait and prepare 20 years instead of paying the patent?”
Market laws apply to patents as much as to any other goods: if the inventor keeps licensing price high companies will not buy… but this is unlikely to happen because if companies dont buy the inventor gets no payback for his effort (and still has to pay maintenance fees for their patents) so a reasonable deal would most likely occur. And the fact is that the longer he keeps prices up the less valuable his patent becomes, for reasons that are obvious, I think.
“I can’t stop thinking that in the first place the patent was introduced not by some Statesman’s will to make an universal good but by big companies with strong influence in the American Congress, wanting to acquire monopoly.”
Please allow me to quote Wiki on this:
“In 500 BC, in the Greek city of Sybaris (located in what is now southern Italy), “encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year.”[5]
The Florentine architect Filippo Brunelleschi received a three-year patent for a barge with hoisting gear, that carried marble along the Arno River in 1421.[6] In 1449, King Henry VI granted the first English patent with a license of 20 years to John of Utynam for introducing the making of colored glass to England.[7]
Patents in the modern sense originated in 1474, when the Republic of Venice enacted a decree that new and inventive devices, once put into practice, had to be communicated to the Republic to obtain the right to prevent others from using them.[8]”
Big companies, huh?
Oh and there is something I forgot! You state:
“It is possible that someone penetrates my property, copy the paper and use it or sell it to someone who can use it. [...] Those who will be found guilty will pay the damages that I suffered economically and morally.”
Well guilty of what, exactly? Trespassing? You Libertarians do not accept the existence of damages for loss of forseeable income… furthermore, you think that any other company using whatever formulas were written on that paper does not prevent me from doing the same (your infamous theory on non-scarce resources) so what would I claim as damage?
I know, the standard answer is that I should protect my findings better, which would obviously lead to better ways to steal them which in turn would lead… you guess my point!
At the end of the day you get what I call “The Law of The Bigger Gun” – which is, BTW, the way I call the Libertarian doctrine.
P.S. If intellectual property is a non-scarce resource how comes industrial espionnage is still alive and well? Why does a competitor risk going to prison when he could just use those “[...] many people around and ideas [that] are coming from all over the places”.
Sorry but you seem stuck with the “better mousetrap” concept: most present-day inventions require tremendous financial efforts… still waiting for formulas of drugs against cancer “coming from all over the places”? I respectfully suggest you do not hold your breath!
I have a few re-marques to the above observations:
- I don’t consider myself a libertarian as I couldn’t find a unique and clear description of what a libertarian is. I do consider that the principles of voluntarily agreed contract enforcement and non-aggression (other than the enforcement of the agreed contracts in case one of the parts won’t fulfill his part) may very well replace all the present regulation.
- Regarding the history of the patents, both ancient and modern decrees were given by rulers of-course… the job of the historian is to find who advised them, what interests were behind…
- A well written contract can replace all patent regulation. However, this only shows how absurd it would be. I, producer and vendor, sell my product together with a contract that the buyer accepts, otherwise he shall not buy: “By present contract, the buyer agrees not to produce himself, in cooperation with anyone other than me or working for someone other then me, a product with the same utility as this one” – this may lead to no one buying my product. Written as “By present contract, the buyer agrees not to produce himself, in cooperation with anyone other than me or working for someone other then me, a product that uses for his fabrication the thin film deposition of a silicon oxide by plasma jet along two graphite electrodes opposing the injection of a mix of organosilicon and helium gas.”, may be bought by lot of people with no restrain. I could add to the contract: “In case of re-sell of this product, the buyer, now de-facto seller, will impose to his own buyer the same conditions as in the present contract”. Anyhow, the contract would have no effect in case the product is used by someone else, other than the buyer…
- “It is possible that someone penetrates my property, copy the paper and use it or sell it to someone who can use it. [...] Those who will be found guilty will pay the damages that I suffered economically and morally.” – I don’t know about the libertarians, but when someone stills a paper with emotional value or an information, what he should repay is the ‘emotional damage’ or the ‘estimate value of the information’. This should be judged in Court and the sentence may vary from one geographical place to another as there can be cultural differences from a region to another.
- The patent blocks a fundamental tool of the humanity, one that led to much more development than any other: reproducing. Imagine the first individual producing a fire, having imposed a patent on fire making… Ideas are not scarce but they look like, compared with the huge amount of copies that thousands (sometimes millions, depending on what the idea is about) of people will try to do, with the only scope of improving the initial idea – make it better then the original or adapt it to personal, subjective preferences.
- Considering the stealing, we are talking about the immorality of this act. Beyond the immorality, which is subjective, wide spread stealing is a huge obstacle to acquire and keep goods for personal satisfaction, as well as to save capital – the essential source of further investment in improved production. If stealing is almost unanimously considered a bad thing, the profound reason is the economical one. The ethical one is just the aesthetic touch that people love to add to everything. Like a parallel, I like to say that the patents are evil because they are sustained by groups of interest behind the Government’s regulation. Deep inside me, I know that the true reason is that without patents people will find little restrain to save capital, invest and produce, while the possibility of reproduction of ideas will release a tremendous force for general prosperity.
“- Regarding the history of the patents, both ancient and modern decrees were given by rulers of-course…”
Yes they were! So what? Rulers were the only ones smart enough to figure out patents would promote innovation and, of course, the only ones that could enforce the decrees.
“- A well written contract can replace all patent regulation. However, this only shows how absurd it would be. [...] Anyhow, the contract would have no effect in case the product is used by someone else, other than the buyer…”
Yes it would be absurd and unenforceable! This is exactly why a written contract cannot replace patent regulation… so what exactly are you trying to prove, that patent regulation is not replaceable? Well I already knew this…
“– I don’t know about the libertarians, but when someone stills a paper with emotional value or an information, what he should repay is the ‘emotional damage’ or the ‘estimate value of the information’.”
Well say the thief leaves the paper in place and only makes a copy of it… the case for lost emotional value is dismissed; as for the case of ‘estimate value of information’ there would be no such sing as information would not be protected (not being a scarce resource, according to some morons).
” Ideas are not scarce but they look like, compared with the huge amount of copies that thousands (sometimes millions, depending on what the idea is about) of people will try to do, with the only scope of improving the initial idea – make it better then the original or adapt it to personal, subjective preferences.”
Well this is exactly what patents are all about: once an idea is covered by a patent anyone has access to it and can try to adapt or improve it. Furthermore, they can patent the improvements (so any other people can further their research) and even license those improvements to the licensee of the original patent. The only thing they cannot do is use the original idea – which is not theirs, BTW – for free (and even this restriction only stands for a limited time).
As for the ‘thousands (sometimes millions)’ of people trying to improve on a novel synthetic drug that cures some form of cancer… gimme a break!
“Like a parallel, I like to say that the patents are evil because they are sustained by groups of interest behind the Government’s regulation.”
Confusing patent regulation with copyright laws, aren’t you?
“Deep inside me, I know that the true reason is that without patents people will find little restrain to save capital, invest and produce, while the possibility of reproduction of ideas will release a tremendous force for general prosperity.”
No way! Without patents people will find little incentive to spend capital, invest and research in order to generate new ideas. Furthermore, whatever results they would still get would be hidden from public view (as trade secrets), with no legal possibility to be used as basis for further research.
Not to mention that economy and sociology (as sciences) are based on logic and facts, not ‘gut feelings’!
And some further comments:
1. “Ideas are not scarce but they look like”
Ideas are very scarce! If they were not, the “thousands (sometimes millions, depending on what the idea is about) of people” would not have to steal them as they would have their own ideas on how to solve the same problem.
2. “with the only scope of improving the initial idea”
No kiddin’? So the millions of people buying counterfeit drugs and/or fake iPhones are doing it to improve the initial idea… not to get a free lunch at the expense of the original inventor/innovator?!
3. “make it better then the original or adapt it to personal, subjective preferences.”
Well you’re free to do both, noone is trying to prevent you from doing it… provided you enhance your own ‘copy’ (that you legally obtained) and you do not manufacture the resulting device and sell it for profit.
I make a very clear distinction between copyright and patents. What I have in mind by this article are the patent laws which I strongly oppose. I do consider that one cannot make his own version of a product and falsely mark a trademark label on it, like false Chinese Nokia or Samsung product. This is nothing more than identity theft and it’s very well prosecuted. However, it’s the buyer’s responsibility to identify products like Adiads or Samsoung as different than Adidas / Samsung and decide weather they want to buy them or not.
Concerning the patents, one should know that they are not products, but recipes. Just like the recipe for a cookie, a patent is an instruction list describing the making of a product. I worked in research in Western Europe and one of my team’s jobs was to produce a patent for a big chemicals company. We observed that using a particular architecture of a device, we can obtain a matter having some particular properties. Those properties may be useful to increase the efficiency of a final product. We had no idea if in the end this will bring to something. We had no idea if we will ever use that recipe to produce and sell something. However, my colleagues worked hard to describe precisely the process and the resulted properties. The idea was to patent a recipe. By patenting this recipe, we were assured that for 20 years, no one will have the right to use a similar recipe to produce something. The objective was not to produce and sell a product, but to block the others of doing something similar if they discover a practical application. This is the business of patenting in our days. Each big company has hundreds of persons turning the buttons to obtain recipes and describe the ‘cookies’, just in case someone else has the idea to do something by the same method, to be forced to buy the patent or to negotiate a joint action (you sell me the recipe and I give you part of a profit or you start a spin-off company to produce this product). Also, each big company has hundreds of people working on reading thousands of pages of patents just to check if their own idea wasn’t, accidentally, discovered before by someone else and already patented. They have to do this to avoid unwanted accidental low suites. The public laboratories are in this business, helping the industrial companies to turn buttons and patent everything as much as possible, because they receive funds function of the quantity of the patents they produce. I cannot describe what burden this patent industry is for an R&D department of a company who is product-oriented. One outside the business cannot imagine how much this is an obstacle the economic activity and how many breaks are put against the wide spread of new, innovative products. There are of course patent-oriented companies whose main R&D activity is to use an army of monkey researchers to produce patents on almost anything and to scan the activity of all the product-oriented companies to catch them accidentally using a patented recipe and block them. The main looser is the small and medium size enterprise which doesn’t have lawyers and dozens of researchers to produce and analyze patents. They often find themselves victims of a patent conflict and finish by selling their business to a big company and become employees of the later, just to be able to continue the activity. Moreover, as there where the power is concentrated the corruption grows, a patent mafia grown around the patent agencies and the big patent companies. Activities like patent consultancy and patent assurance developed, consuming resources otherwise employed in production and having links with the financial markets.
I, again, em-phase the fact that patents are recipes. The patent laws are similar of a would-be cooking law. If I make a recipe for a cookie and I patent it, no one should be allowed to use this recipe for 20 or 30 years. I do consider that entering a private property and stealing the peace of paper (or the electronic document) containing the recipe is theft and the thief should be prosecuted not for the value of the paper but for the value of the economical damage. I totally agree that contracts should enforce this kind of penalty against employees who externalize recipes – they should be made responsible for the economical damage of their actions if they give recipes to someone outside their company. But without the patent laws, the reverse-technology would be possible. What good for finding how a product is made if the recipe is patented? One should be aware of the fact that often there is just one recipe able to produce a certain property of the resulted product so telling that patents are an incentive to discover alternatives is often not applicable. Also, one should be aware that the implementation of a product line from lab to fab and from fab to market, is a history if several years. Taking a product from the market and discover the recipe to produce it by reverse technology may take a few weeks. But finding the investors, building the lab, optimizing the process, building the fab and put out the first end product batch may add years which are commercial advantage for the inventor of the recipe. Of course, lack of patent laws, the advantage may be of 2-3 years instead of 20-30, but there is still enough incentive for enterprises to innovate and produce while the perverted consequences of patent laws that I described above from my experience, could be avoided.