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Letter to an Anonymous Patent Attorney• Kinsella: Letter to Anonymous Patent Attorney,
Jan. 9, 2002 PATNEWS Greg Aharonian is the Matt Drudge of the patent world, and his Internet Patent News Service newsletter � better known as PATNEWS � is lively and interesting. While Aharonian loudly decries the quality of software patents and the patent bar's apathy and unwillingness to agitate for improvements, he adopts a mainstream, empiricist-utilitarian mindset, defending patent law in general and insisting that the patent system can be improved and reformed "if only" certain tweaks are made to the system. So while Aharonian postures as a maverick, he nips only at the margins of whatever the mainstream IP system happens to be, but does not buck the system as a whole. Case in point is a recent PATNEWS (Dec. 16, 2001), in which Aharonian critiqued Stanford law professor Lawrence Lessig's new book, The Future of Ideas (Amazon link), and Lessig's modest suggestions to limit patent rights in some areas. Several replies to Aharonian's comments (including a reply by Lessig) were published in the Jan. 7, 2002 PATNEWS. Among these was a letter from an anonymous "corporate patent attorney" criticizing Lessig, in part, on the grounds that Lessig was not a registered patent attorney and thus did not have the appropriate credentials to make his critique. The newsletter offered other critiques of Lessig as well, by other patent attorneys and law professors. Most of them echoed the criticism that Lessig has no appropriate patent law credentials or experience. Many, as is typical of patent attorneys, adopted the empiricist mindset that we have to look at evidence to compare the costs and benefits, to decide if patent law is a good idea � and then they go on to assume it is justified, even though they cannot point to any evidence or definitive studies in their favor. One even defended the patent system yet would, "until my dying days ... attack the quality of issued patents and case law, both in deep trouble". This author even suggests (apparently not tongue-in-cheek) that if the government really wants to "promote the arts and useful sciences" (the alleged goal of patent law), it should supply "freebie patent agents for the poor, just like it supplies public defenders for the indigent and criminally-accused." In response, I sent a letter to Greg which was published in the Jan. 9, 2002 PATNEWS. Below is a lightly edited version.
Letter to an Anonymous Patent Attorney PATNEWS Jan. 9, 2002A PATENT LAWYER DEFENDS LESSIG Greg, The unnamed corporate patent lawyer bashes Lessig on the grounds of his lack of credentials. He refers to him as a PPPPP � Pompous Pedagogue Pronouncing Patent Policies. Let me say that I am an experienced, registered (not "licensed") patent attorney, and I, for one, have an even greater opposition to the patent system than does Mr. Lessig. My reasons can be found at www.stephankinsella.com/ip. I do not mean to make an argument from authority, but to demonstrate that it is indeed possible to be a patent lawyer, to know a great deal about the system, and still to oppose it. This corporate patent lawyer may be right about pompous, unexperienced academics mouthing off on policy matters. But an ad hominen is no substitute for a critical analysis of an argument. Either Lessig is right, or he is not, regardless of his "credentials." What is the relevance, anyway, of Lessig's not having prosecuted a patent before? � does anyone think patent lawyers, when they prepare, file, and prosecute patent applications, gain any special insights into the innovations gained by society? Of course not; patent lawyers prepare patent applications when paid to do so by their clients. Simple. They don't get any special insight into whether this government-granted monopoly is, overall, on the whole, a good idea. If anything, they are biased in favor of the system that butters their bread. In fact, in my view, most patent lawyers � most lawyers in general � fit into the category "Pompous Pedagogues Pronouncing Patent Policies", to the extent they themselves unthinkingly spout pro-patent slogans. That is because most patent and IP and even other attorneys with an opinion on this issue mindlessly parrot the simpleminded economics with which they were propagandized in law school. Virtually every patent lawyer will reiterate the mantra that "we need patents to stimulate innovation," as if they have given deep and careful thought to this. Of course, virtually none of them have. They repeat what they have read in Supreme Court and CAFC (Court of Appeals for the Federal Circuit, the primary federal appellate court dealing with patent law issues) opinions as if the positive law enunciated by government functionaries is some Holy Writ. It does not take a genius to figure out why most patent lawyers are in favor of the patent system; and it is not because they have really studied the matter and dispassionately concluded that society is better off with a patent system � it is because they don't want to see the system that pays the mortgage for them eroded or abolished. There is, it turns out, no clear evidence that a patent system is a net economic gain to society (see Julio H. Cole, "Patents and Copyrights: Do the Benefits Exceed the Costs?", Journal of Libertarian Studies v. 15, no. 4 (Fall 2001) (link to previous version)), even if one employs the flawed wealth-maximizing utilitarian calculus that, again, we were browbeaten with in law school. And the ethical arguments in favor of patents are full of holes; see my articles � not that patent lawyers really care if patent law is justified or not; they would support it anyway. I suppose they cannot be blamed for giving lip service in support of their means of support, but it is hypocritical, dishonest, and unseemly when they go further, and pretend to have "special knowledge" or authority and that they are unbiased supporters of the system. It is rich when they bash academic critics for not having credentials to have a say in the matter; better to have nonideal credentials than to have a vested interest in the matter. I do not claim that I have special knowledge as to the legitimacy of patents (pro or con) just because I am a patent lawyer � but neither should others. And not being a patent attorney, or an attorney at all, is no bar to having an informed opinion on the subject (can only women have an opinion on abortion? Only blacks on affirmative action?). In fact, IMO lawyers tend have an unjustifiably smug view as to their comparative advantage at formulating policy values and opinions. (In fact patent lawyers are less knowledgeable because they are biased. For example, IRS employees may know more about the tax system, but is their opinion that the tax system is a good thing especially persuasive?) If anything, the reverse is true: given the brainwashing and special-interest aligning that most lawyers are subjected to, I'd take the knee-jerk, "unsophistocated" value judgments of a "layman" any day over those of the average lawyer. Lawyers are notoriously opinionated on political and policy matters, yet they fare no better than the laymen in being able to muster a coherent defense of their own policy views, preferences, and values. At least laymen do not delude themselves that their own policy values and preferences are some lofty, authoritative opinion because interlaced with selected aphorisms from Supreme Court opinions and politically-correct, mindnumbingly boring and irrelevant law review articles. Nothing wrong with patent lawyers doing their jobs, but they should not blindly parrot the mainstream rhetoric spoonfed to them in law school just to delude themselves that their profession is some categorical necessity. In my view, society would be much better off, if patent and copyright law were simply abolished. The laws are inherently amorphous and vague, and ethically unjustifiable. Of course, my view is controversial, and reasonable people can disagree about this. But I suppose it is too much to expect honest and open discourse about this among the patent and legal bar. Money is more important than truth, and lawyers, the product of our state-controlled education system, are pretty incompetent when it comes to ethical or philosophical matters. Stephan Kinsella http://www.stephankinsella.com/
Three replies to these comments, by patent agents or attorneys, were published in the Jan. 16, 2002 PATNEWS. Below is a lightly edited version of a response I sent to Aharonian and the patent practitioners:
Kinsella's Response to Patent PractitionersJanuary 23, 2002 Greg, While I am open-minded and always willing to consider criticism and new argument/evidence and admit I am wrong, the quality of the arguments in the three emails you published on Jan. 16 2002 is so poor that they give support to my contentions. If critics have to resort to ad hominem, disingenuity, and outright distortion of my views in order to attack them, it might be because they are bereft of a substantive argument. They simply don't like the idea of abolishing the system, and that's it � no argument, so they seek to attack my character, invoke ad hominem, change the subject, evade the topic � anything but present an actually clear and coherent, civilized and reasonable critique or alternative argument. Excerpts from the 3 replies to me and my responses thereto follow below: 1. Ed Suominen (http://eepatents.com/): > Greg, In fact, I am currently registered. The link Mr. Suominen provided actually does list me (and my employer). The PTO lists me by my first name, an easy inference to make, especially since the PTO listing lists my current employer as do my articles and website. I fail to see how Suominem didn't see my name in the short list of Kinsellas. For his clients' sake, I hope his prior art searching is better than his PTO-roster searching. The proper term is "registered" not "licensed". The PTO site itself linked by Mr. Suominen reads, "Patent Attorneys and Agents Registered to Practice before the US Patent and Trademark Office..." One is licensed to practice law, but registered (not "licensed") to practice before the PTO. Contary to Suominem's guesses, I still pursue patent protection for clients (only one, now, since I have gone in-house), "despite" my view that the federal patent law is unjustifiable. Likewise, I drive on public roads and attended a tax-funded university even though I also object to public ownership of roads or tax subsidies to education. If statists had their way, advocates of liberty would find it impossible to live in a semi-free world, since nothing they did would be free of taint. This is ridiculous. Advocating liberty and property rights does not require one add insult to injury. To suggest so is blaming the victim. Suominem is also incorrect that I view him as "engaged in a pointless profession ... and that I should be consumed with regret over the ill-gotten gain of issued patents and pending applications that I have grasped and clutched as sop for my inventions." That is not at all my view, nor have I said or even implied so. In my view, there is nothing immoral or regretful at all about pursuing patents for one's clients. The mere fact that a given legal/political institution, practice, scheme, or law is unjustifiable does not, of itself, imply that it is immoral for one to utilize and work within this scheme. I personally think it is morally obligatory not to advocate or seek to establish/maintain an immoral government scheme/program, and I think it is morally obligatory to make an honest, sincere, and thorough inquiry as to the legitimacy of a given law, before one speaks in favor of it. But I do not believe practicing patent law is a per se endorsement of it, and I have no problem with patent lawyers not taking the time to really look into this matter in a serious way, so long as they don't pipe up about it as if they have. I do not think most patent lawyers have given this serious thought, but they have been deluded, primarily by the elitism and positivism that law school instills in them, into thinking they don't need to. But to their credit, IMO most patent lawyers don't have many opinions on this nor do they go around blathering about it as if they do have an informed opinion; they accept the system as it is, very pragmatically, and simply do what they do to earn a living. Simple; and I do not criticize this. Also, as a hard-core libertarian, I would never condemn someone for being greedy or a capitalist, as is clear from many of my articles available on my website. I myself am a greedy and ardent pro-capitalist � in Ayn Rand's terms, I advocate the virtue of selfishness and am a radical for capitalism. Suominem says he does not see how the view that "the world is [not] entitled to the fruits of my labor, just for the asking" is inconsistent with the libertarian philosophy that I espouse. I don't know how I can help him here, as my writing makes it clear exactly why I believe patents are not compatible with libertarian property rights. I've laid out in detail my case for this. If he were to take the time to read it and come up with an intelligent substantive comment or critique, okay. Similarly, Suominem says "If land ownership can be a metaphor for intellectual property..." But this is question-begging and not even a suggestion of an argument. My writings make it clear exactly why I and others think tangible property like land is in fact not analogous to inventions. As a practicing IP attorney I will admit that for years I searched for a way to justify IP laws (unlike most IP attorneys who don't give a damn), but eventually realized all the justifications were flawed, and that IP laws are, in fact, incompatible with property rights. Patent law limits owners' use of their tangible property whenever someone else comes up with certain government-approved techniques/apparatuses. This infringes property rights. I would be glad to find a good argument for IP, but unfortunately, none of Suominem's comments amount to an argument or even an attempt at such.
2. "Rod" writes: > Greg:
Ah. The typical reply of the left and those backed into a corner: silence the arguments of those they do not like. And evade substantive argument (I guess I would, too, if I had no substantive, non-vacuous views). Yes, why in the world would the freewheeling, rollicking PATNEWS newsletter � one that publishes frequent rants by its editor against the ethics and policies and practices of the patent bar; one that has just published a critique by a patent lawyer of Lessig's modest suggestion to modify patent law? � why indeed, would he print a short letter from a registered patent lawyer who actually has intelligent, well-formed, controversial views on this matter? Makes no sense at all, does it? > Mr. Kinsella
assumes that any patent attorney who adheres to the view that I would not say "any"; and it is not an assumption, it is a conclusion based on experience and reason. > Maybe
there are some of us that support the system (however flawed Perhaps, but not many, IMO. Instead of saying "maybe" there are good arguments, why doesn't "Rod" offer, or point me to, one? Wouldn't that be more direct, quicker, and less evasive/subject-changing? > Maybe
there are I of course work in the IP field to earn a living, there is demand for it. I daresay this is true of most, if not virtually all, patent lawyers � the ones I know, would retire in a second if they didn't need the money. Consider: how many patent lawyers, rich enough to retire, would do the job for free, pro bono, just to "help society"? The answer is very close to zero. Not many of the patent lawyers I know would be so brazen as to seriously and with a straight face say that they work in IP because it is "useful for society". We are a pragmatic bunch, most of us. In any event, there are many economic fallacies in the statement re doing things "useful to society". To the extent one is paid for one's services, that is indeed an indication of the usefulness of the service (to the client, at least � I am not sure about "society"). People would not pay us to prosecute patents if they did not obtain something of value therefor. But likewise, the tax system is immoral, unconstitutional, and just plain stupid. In a just society there would be no tax laws nor IRS, nor tax attorneys hired to defend individuals and corporations hounded and persecuted by government tax collectors. Yet, given a world where the IRS exists, there is indeed a market for tax lawyers, and they do indeed perform a valuable service. I oppose the patent system but would not feel pangs of guilt were I a tax attorney, on the grounds that I am just wasting my life in a job that "should not exist". I would instead take pleasure in earning money in exchange for performing a service useful to my clients. Doctors also perform a valuable service, although it would be better (I suppose) if there were no disease in the world. Are doctors supposed to regret having to fight disease and sickness, because it is just such a shame that there has to be disease and death? And so on. But a tax attorney arguing in favor of the tax code, is not very persuasive to me. At the least, his arguments are not more credible, and I would say his motivations and sincerity are suspect. >Mr. Kinsella
also accuses IP lawyers of being hypocritical for supporting I don't accuse them of hypocrisy at all for practicing patent law or even for suporting IP per se. I simply think they are disingenuous and insincere in promulgating obviously-weak pro-patent arguments, all the while pretending to have some special authority and to be disinterested. But notice Rod's evasion of addressing the substantive issue under discussion. I do not say the "field" is "counterproductive to society". I say that laws using force of the state to prevent me from using my property as I see fit, just because someone else came up with a way of doing something with his property, are not justified. If Rod thinks he can justify such laws, which are tantamount to partial forcible expropriation of private property by the state, I welcome him to do so. But to change the subject for focusing on character etc. is easier, I suppose, than having a substantive discussion, at least when one has no good arguments to draw upon. As for the "sad life" comment, I have no comment for such uncivil discourse or disingenous, dishonest argumentation. > BTW, I
checked out his website. His view regarding patent and copyright This is just wrong, and laughably, blatantly so. Libertarians, qua libertarians, believe in individual rights (an objective truth, by the way); and many, including me, do in fact hold objective and absolute, universal and non-relative, moral and other views. Many libertarians, for example, are Objectivists (link2) (adherents of Ayn Rand's philosophy). Of course they believe in objective truth. Unlike an empiricist-positivist like Milton Friedman, I do not ground my defense of rights and liberty on skepticism (the idea that we cannot know what the "best" way to live life is, and "therefore" we should nor impose lifestyles by force on people). I simply believe that even if we can know some things are objectively immoral, it still does not justify the use of force against the immoral action, unless that immoral action itself involves force. > Sorry
to dump on him, but he really attacks IP attorneys, and concludes
Again, note how the author here, instead of proposing � or even pointing to � a good substantive defense of patent law, takes umbrage at my pointing out that members of the patent bar might be biased in favor of the patent system! I would bet that a greater-than-average percentage of postal employees oppose the privatization of the post office, and a greater-than-average percentage of public school teachers oppose abolishing redistribution of wealth from taxpayers to public schools. I wonder why. But I could be wrong. Maybe every pro-patent patent lawyer is sincere. Still, the arguments they put forth are lacking in substance and rigor � such as the anonymous ad hominem one attacking Lessig for not having the right credentials, instead of actually mounting a serious substantive case.
3. Stan Protigal (http://elman.com/) writes: > There's more to this guy than meets the eye. You mean I am not "just" a patent lawyer?! Gasp! What an outrage! > He has
published articles So here we have it; if one cannot attack an argument on substantive grounds, subtly accuse its author of anti-semitism. I never advocated "sending" Jews to reservations. Instead, I advocated (generously, IMO) offering them some of our unused public lands, and of eliminating taxpayer subsidies to Israel (and Egypt and the rest). The article he links above notes that the Israelis themselves at one point considered Uganda and other places as a possible home for Israel. > Perhaps
his positions on patents are more closely tied in with his politics
I am not clear how this is supposed to be a criticism � Why, yes, my views on the legitimacy of patent laws happen to be "tied in" with my general political views. Heaven forbid we have a systematic political philosophy with implications for which laws are good and bad! Heaven forbid someone has a serious and thought-out system of views on the proper nature and role of government, individual rights, and law, and applies it to various areas of interest, like IP law, and comes to actual conclusions that differ with those of most of his fellow patent lawyers. After all, we can't have anyone pointing out that the emperor has no clothes.
Interestingly, I received several emails from other recipients of PATNEWS commenting on my letter, ranging from merely interested to very supportive, and none of them negative or hostile. Maybe there's hope after all. FURTHER READINGFrom an empirical, "show the data" viewpoint, see the article "Patents and Copyrights: Do the Benefits Exceed the Costs?," Julio H. Cole, Journal of Libertarian Studies, vol. 15, no. 4 (p. 79) (online later in 2002 in the JLS). For theoretical and other analyses, see my articles, and others linked at: www.stephankinsella.com/ip APPENDICESReplies to Kinsella's Comments re Aharonian/LessigPATNEWS Jan. 16, 2002CRITIQUES OF LAWYER WHO DEFENDED LESSIG IN RECENT PATNEWS Recently I sent out a defense of Prof. Lessig by a patent lawyer from a charge of qualification-lack made by another patent lawyer, in the context of my critique of Lessig's patent commentary in his new book. The saga continues with a few critiques of Lessig's defender.
Greg, I found Mr. Kinsella's note identifying him as "an experienced, registered (not 'licensed') patent attorney" interesting. (I'm not sure what he means by "registered (not "licensed") � does one term apply and not the other?) Here's something that might be interesting for you to investigate and report to the group. I did a search [1], but I couldn't find Mr. Kinsella in the PTO's roster of registered attorneys and agents, which is supposedly updated through January 7, 2002. Mr. Kinsella's name did appear on several patents, however, the most recent of which was filed August 26, 1997. Just a year later [Winter 1998], Mr. Kinsella published an article asking "Is Intellectual Property Legitimate?" [2] I wonder what happened in that year to change his mind, or did he think IP was illegitimate when he represented clients in securing patents? Mr. Kinsella's PATNEWS missive says that for practicing patent attorneys (and agents, presumably), "money is more important than truth". Was it so for him in 1997 and before? Was he (quoting him again) choosing to "simply go along to get along" then, "know[ing] where the bread is buttered"? The impression I got from Mr. Kinsella's writing is that I am engaged in a pointless profession (the same profession he was engaged in for years), and that I should be consumed with regret over the ill-gotten gain of issued patents and pending applications that I have grasped and clutched as sop for my inventions. Alas, were I not such a greedy capitalist, I might well have just given it away, exchanging my hundreds of hours of self-driven effort and sacrifice for the pure satisfaction of bettering the planet. Sorry, but I personally was, and am, driven by the profit motive. I'm not a professor seeking tenure, so publishing the material is not compensation enough on its own. And somehow I don't see how the world is entitled to the fruits of my labor, just for the asking. (I also don't see how that viewpoint is inconsistent with the libertarian philosophy, which Mr. Kinsella espouses [3]. ) Ironically enough, I *am* the author of an open-source software package (still beta). See http://sourceforge.net/projects/tksec. If land ownership can be a metaphor for *intellectual* property, then I consider open-source or public domain to be the equivalent of the land donation to the county parks board � a good thing to do for the community (and I've done it) but not something that can be mandated. I choose to hold onto other parcels of my intellectual property, just as I will hold onto the acreage surrounding my home, thank you. Best regards, Ed Suominen Registered
(right now!) Patent Agent (http://eepatents.com/) [1] See http://www.uspto.gov/cgi-bin/attorney/atty.cgi?Stephan&max=1000 and http://www.uspto.gov/cgi-bin/attorney/atty.cgi?Kinsella&max=1000. Also, I did a dtSearch of the entire 7MB+ text file (date stamped 1/7/2002) of the Roster with the query "kins* w/20 ste*". It revealed only an entry for ""Peterson","Paul" of "10845 Kinsman Road" next to an entry for "Peterson","Stephen" [2] http://www.stephankinsella.com/publications.php#IP [3] http://www.stephankinsella.com/publications/bio2.php
>From [email protected] Wed Jan 9 14:50:37 2002 Greg: Wow. I am a bit disappointed that you gave Mr. Kinsella such a forum. OTOH, you did give me the chance to check out his views, and maybe you just published his note just out of fairness. In that way, thanks.
(Greg note: for the most part the policy of PATNEWS is laziness. If you send me something with attitude that I don't have to type in or edit much, I probably will send it out. :-) Mr. Kinsella assumes that any patent attorney who adheres to the view that patent and copyright law is good for society is simply a self-serving parrot. Maybe there are some of us that support the system (however flawed in its implementation) for good, well-thought reasons. Maybe there are some of us (not including Mr. Kinsella, apparently) that work in the IP field because we find it to be useful for society (as well as profitable). Mr. Kinsella also accuses IP lawyers of being hypocritical for supporting the IP system. It would seem to me that Mr. Kinsella is the hypocritical one, working all day, every day, in a field that he believes to be counterproductive to society. What a sad life he must lead. BTW, I checked out his website. His view regarding patent and copyright law is based on "libertarian" principles. Funny for a libertarian to use "truth" (see his last sentence in his letter to you) in supporting his positions. Last time I checked, libertarians don't believe in any objective truth (i.e., nothing is objectively wrong or evil; only those things that infringe upon others are to be prohibited). Sorry to dump on him, but he really attacks IP attorneys, and concludes that anyone who doesn't agree with him is dishonest and a toady. Hardly the "truth", don't you think? Rod
>From [email protected] Thu Jan 10 09:16:23 2002 Hi Greg – There's more to this guy than meets the eye. He has published articles advocating, inter alia, sending all of the Jews in Israel to Federal reservation land. He suggests either in the desert along the border of Utah and Nevada (atomic test site or just Bryce Park?) or to the upper Arctic reaches of Alaska. (What about the sea? – oh that idea's already taken.) http://archive.lewrockwell.com/orig/kinsella5.html His theory, as nearly as I can determine, is that this is necessary to appease UBL. Perhaps his positions on patents are more closely tied in with his politics in general than anything relating to the patent system. � Stan
Replies to Greg Aharonian's Comments on LessigPATNEWS Jan. 7, 2002In a recent PATNEWS, I critiqued Prof. Lawrence Lessig's new book on intellectual property law and the "content" industry, title "The Future of Ideas". Of the 268 pages in the book, I focused on the ten or so dealing with patents, which I thought were not well written and contributed little to his book. And still think so. The book would suffer nothing from removing these pages, especially given their tone of MAYBE there is data to show that MAYBE patents MAYBE causing some problems for "content" any different than other industries routinely deal with. Too many MAYBEs. What follows is some comments on my critique from PATNEWS readers, followed by Lessig's critique of my critique (along with some critiques of mine about Lessig's critiques – I get the last word since as people seem to forget, this is MY newsletter). Greg Aharonian
(From a Washington DC patent lawyer) Greg: Interesting critique of Lessig. Here's one additional perspective that I find interesting. The patent systems in many Asian and South American countries are weak to non-existent. Indeed, in some of these countries patent protection is forbidden for certain technologies of significant public importance (e.g., medicine). Under Lessig's model these patent-free countries would become high-tech Mecca's, in which entrepreneurs would be free to innovate without serious threat of legal impediment. Yet the reality is that, by and large, the most significant technological innovations continue to originate in precisely those countries having the strongest patent systems.
(From a corporate patent lawyer) Thanks for this critical review Greg. You can add this: I would suspect that Stanford Law Professor Lawrence Lessig and his ilk will be typical of the PPPPP* patent-bashing witnesses the FTC will trot out in its upcoming public hearing. i.e., academics who are not even licensed to practice patent law, never even having passed the PTO patent bar examination (I just checked the PTO attorney roster list on the PTO web site), never having worked in or with the PTO, and probably never even having written, prosecuted or litigated a patent in their life. *Pompous Pedagogues Pronouncing Patent Policies (Greg note: I am sure this PATNEWS reader, if he wants to keep his subscription, is not putting PATNEWS in the PPPPP category :-)
(From an actual professor of patent law) Greg, Thanks for pointing out the Lessig book is ill-informed and ill-thought through (a problem I have with most young academics who decide, based on NO actual experience in the subject) that they can make patent law their subject. I have often likened their writings to people discussing life beyond the solar system: "we can all speculate equally well because nobody really knows" seems to be their drift. But of course, people DO know about patent law. Often a simple phone call would have keep them from looking so foolish. The fact that they write for law reviews, where students with even less knowledege than the authors are their editors, just makes it all worse. On the copyright side, I despaired that Lessig – via the Eldred v. Reno case, seemed to be in a position to run/ruin things. Would that the good people had better champions, I thought/think. When I first heard about that suit, I thought the central argument would be that you can't read the word "limited" out of the Constitution. But then the Lessig-ite did not seem to know that you have to lead with your best fact (the language of the Constitution) and not dilute your good argument by embedding it in 3 weak ones... (re Eldred, there is a serious contradiction between two Supreme Court decisions that creates a big hole for Lessig to exploit to win copyright reduction arguments. But it requires real research on IP case law and modern science to find. His book makes me believe he will never find it.)
(From a government/private patent lawyer) Greg, Some interesting background information about IP economics. In 1996, for a presentation to a Smithsonian Associates – Johns Hopkins U. course on Invention and Innovation, I looked into historical evidence on the economics of patents. It turned out to be all hand-waving. There wasn't a single reliable source that I could find. The standard reference (Jewkes, Sawers, Stillerman) was completely unpersuasive. There was a paper in Science ca. 1980 that claimed to find a greater monetary return to society than to the patentee. Unfortunately the study required that the inventions and patents they investigated not be revealed, so there was no way to check their data. >... (Lessig
should take a look at Your critique of Lessig is right on. The trouble is he knows nothing of patent law, like most (but not all) law professors. It's only recently that law schools have been hiring registered practitioners like Lemley. If I don't lapse into senility sooner, I want to look into the intersection of the history of technology and patent law. But I'm afraid that there's too little good data out there, and what there is is widely scattered. We need more research projects like the Thomas Edison papers, especially since there's a lot of faulty stuff out there that purports to be historical. Jim Carmichael, then an Administrative Patent Judge and now in private practice, published a reminiscence about Edison and his patents in the ABA IPL Newsletter ca. 1997. I think he got it from Judge Rich, who may have found it in his father's papers. I put Jim in touch with the then-editor of the Edison papers, who could show that the reminiscence was almost totally without foundation in fact. Unfortunately it appeared in print before any corrections could be made.
(From a Silicon Valley patent lawyer) Right on Greg !!! Instead of attacking patents you are finally defending the system (to some extent). (Greg note: PLEASE PEOPLE, I fully support the statutory basis of the patent system, even more so than everyone in the patent world (a future surprise). But until my dying days, I will attack the quality of issued patents and case law, both in deep trouble). Prof. Lessig probably does not get the telephone calls I get in my practice. We routinely get calls from solo inventors who think they have a great idea but they are afraid to approach VC's and/or major companies for development support out of fear that the strangers will steal the idea and the inventor will get nothing. Maybe I should route some of these calls to the Professor to see how he replies. What will he say to these people: Don't think about patents? Give away your workproduct for free? Asking for compensation is un-American � it stifles innovation? Unfortunately for small inventors, the patent system does not offer a one-stop-shopping solution. Lawyers are expensive. Do-it-yourself is fraught with pit falls. Nonetheless it is better to have some patent system than none at all. Perhaps the Prof should instead argue that government should be supplying freebie patent agents for the poor, just like it supplies public defenders for the indigent and criminally-accused. If we truly want to promote the arts and useful sciences, then where are our deeds beyond just the mere words of encouragement?
(From a corporate patent lawyer) Good critique Greg. I was struck by how often things were "obvious" to Lessig that are not obvious to anyone actually working in the field. As for the anticommons, a far better argument can be made that it affects bio-tech patents than software patents. Mere conjecture that software patents may be subject to such, and thus we need to change the system is patently absurd. Before he can really talk about the anticommons, someone (maybe Prof. Lemley again) would need to actually look at patent licensing practices in the industry. I suspect that what would be found is that a lot of patents are being awarded to companies already involved in cross-licensing, and that many of the rest are narrow enough not to cause much in problems – but again, just a guess.
(From a patent lawyer) Greg, Unless there has been a fundamental change in human nature during the last 200 years, I vote with Thomas Jefferson..
"The issue of patents for new discoveries has given a spring to invention beyond my conception," Thomas Jefferson.
"Everyone loves a treasure hunt," Paul Hentzel.
"Several of al-Jazari's (a 12th century Islamic mechanical engineer) machines have been reconstructed by modern craftsmen working from his specifications, which provided far more detail than was customary in the days before patent law was invented . . . . Such openness has rarely been encountered until recent times." "Mechanical Engineering in the Medieval Near East", Donald R. Hill, Scientific American, vol. 264, no. 5, May 1991, p. 104
>From [email protected]
Mon Dec 17 14:47:49 2001 Greg: Thanks for the attention to my book. I'm only sorry I did such an apparently awful job in conveying what is, I believe, the least controversial claims in my book.
(Greg note: well if I got confused, imagine how confused those in the general public will be, since your book is not for legal professionals.) My aim with respect to patents was to do things: (1) to establish the strong and bipartisan pedigree for the claim that patents are a different sort of "property"; (2) to establish the uncontroversial claim that while we can see the costs of a patent system, we have no good evidence that the benefits of the system outweigh those costs. Nothing in your animated response actually responds to either claim.
(Greg note: I was responding to specific comments, not your overall thesis, which you admit, was not conveyed well. And I question your focus on economics, given the generalal lack of any economic data in the book. Here is one, for example – whatever the costs of the patent system, it has given the US the benefit of being the leading economic power in the world. Causal or not, it least it is economic.) You rightly note that Franklin, Jefferson, and Hayek can't tell us much about whether software patents do any good. True enough: they were offered for claim (1), not claim (2). And you rightly note that we have no good data that the patent system has harmed innovation. Again, true enough: but it is a mistake of logic to equate my assertion "that we have no good evidence that on balance the system does good" with the claim "that we have good evidence that the system is doing harm." The former obviously does not entail the latter.
(Greg note: then unless you are being inflammatory, you should have written "that we have no good evidence that on balance the system does good or bad" which is probably the statistical thing to do.) The difference between us � as you know from a relatively extensive exchange in email and in public � is that I believe the government should have some evidence of the good that its regulation will do *before* it regulates; you believe those who attack the regulation should prove the harm in a regulation before the regulation is stopped. This is a difference in baselines, which it might well be good for people to debate. I'm happy to confess the lurking Republican bias in my argument against the "regulate first, justify later" school of government. But that bias is not at all addressed by your lengthy critique below.
(Greg note: but software and business method patents are not new regulations, but the logical extension of an existing regulation. So I ignore the bias, especially because the paymasters of the Republican party, other than the cretins, are corporate America which fully supports the currently broad-scoped patent system.) Instead, you seem to believe that the existing system is sufficiently justified either because (1) the harm from these patents is no worse than the harm from other patents, or (2) the equal protection clause somehow requires we be as stupid with respect to these patents as we may have been with respect to other patents. With respect to (1), I'd just note that now it is you who are making an affirmative argument about what the data show, and to quote you back to you: "WHERE'S THE DATA?".
(Greg note: Where's my data??? Grow up. My newsletter isn't being written by a prestigious Stanford law professor being funded by a publisher to write a book to the level of standards expected of Stanford students, let alone their professors. By the way, I do have data, and better legal arguments, for a book I will be self-publishing, and unlike you, I will be asking you to review it.) And with respect to (2), I can assure you, there is no requirement under the equal protection clause that the government subsidize anyone. Does Ford have an equal protection claim because it didn't get the bailout that Chrysler got? Do unemployed airline workers have an equal protection claim because they didn't get the 911 benefits that airlines did? Obviously (I hope) in both cases the answer is no, and neither with patents. Patents are a form of government subsidy; the decision not to extend that subsidy to any particular field of invention does not raise any constitutional claim.
(Greg note: policy decided by the CAFC to fully allow patenting of software and business methods, your focus in the book, was not based on subsidy theory, but rather the inherent patentability of such technologies.) Finally, I completely agree with you that those who have a vested interest in the existing system � either the good or the bad of the existing system � don't have much interest in changing it. But I do not agree that the Patent Office is incapable of an effective study of whether their regulations do any good. I know you like to cast all this in terms of good versus evil, hardworking versus "lazy." I don't think that is a very helpful way to proceed. If Congress charged the office with the task, and gave them adequate resources to execute it, I'm quite confident they would do as well or better than practitioners whose livelihood depends upon the system staying much as it is.
(Greg note: the PTO does not have enough economists and access to enough data, nor the independence, to do such a study. Heck, we can't get Congress to fund a study of the patheticness of Rule 56, and its big impact on patent quality and industry economics. And given the PTO's continual refusal to make available and publish convenient data on prior art associated with patents, you want them to oversee an orders larger study of the entire patent system?) Lessig
Greg Aharonian's Comments on LessigPATNEWS Dec. 16, 2001!20011215 Critique of Lessig's "Future of Ideas" Stanford Law Professor Lawrence Lessig, a well known commentator on IP issues, has a new book, "The Future of Ideas", which tries to discuss the potential future impact of patent and copyright laws. His basis thesis is that MAY MAYBE COULDBE POTENTIALLY that too strong patent and copyright laws are and will be stifling innovation. He has to say MAYBE because he offers little reliable statistical data on rates of innovation in the US and rates on the impact of patents, partly because there is little reliable data (one of the two tables of data in his book is my table of the number of issued software patents). While I will be critiquing the entire book in a future PATNEWS, with this PATNEWS I will focus on his commentary on patents, basically those ten pages from 205-215. ==================== His comments on patents appear mostly in Chapter 11, starting with page 205, after much earlier discussion of his first form of protection, copyright:
"But now I want to describe a second form of protectionism – perhaps more threatening to the promise of the Internet's future. This threat too is the product of state intervention into Internet space. And this intervention is even harder to justify. ... The issue here is patent law." "Threatening" – I hope we will be seeing some strong, assertive data. Dashed hopes instead.
"But here, economists have an important qualification: If we don't know which direction an improvement is likely to take, then licensing may not occur, and patents here may actually do harm." MAY and MAY. But where's the data? He cites a few economists' comments on the effects of patents, but economists' models have mostly been too simplistic and/or too unconclusive. He offers no data of his own. Such a combative book with no new data, and little old data. Next he uses the biblical-authority argument:
"This skepticism has been with us from the start of the patent system. Ben Franklin thought patents immoral. ... The first patent commissioner himself – Thomas Jefferson – was also extremely skeptical about these forms of monopoly." Look, these were great men, but Franklin that it was moral to deny woman the right to vote, and Jefferson thought it moral to own slaves and to deny African Americans the right to vote. Such historical ancedotes have little relevance in a IP discussion 250 years of science and technology developments later. So Franklin and Jefferson voted unskeptically to deny women the right to vote but voted skeptically to have a patent system. Another quote is a good example of some of the misleading information included in the book:
"But in the past twenty years, an important shift has occurred. The limits to the reach of patent law have been eroded by a number of expansions in patent law doctrine. "These changes", Adam Jaffe [an economist] writes, "were not brought about primarily by Congressional action, but rather by the ... Patent Office." Now Lessig (and Jaffe) knows that the Patent Office does not establish patent law doctrine, but rather only implements patent law doctrine. Patent law doctrine is for the most part established by the Court of Appeals of the Federal Circuit (CAFC), with the occasional higher involvement of the Supreme Court. In fact, the patent doctrine expansion most tourbling to Lessig, software patenting, was actually resisted by the Patent Office for (way too) many years. Chakrabarty (organisms), Lowry (data structures), State Street (business methods), Pioneer (seeds) – these are all expansions of patent law decided by the CAFC and the Supreme Court. This quote does not belong in the book. Next he is inaccurate with the history of software IP.
"Before the 1980s, software inventions in the United States were not subject to patent protection. The reasons were tied to the nature of programming (programs were considered algorithms, and algorithms were traditionally not protected). Wrong. In the 1960s, software was used by hardware vendors to sell their hardware, led and dominated by IBM. They didn't want software patents getting in the way, and wrote such business goals into a Presidential Commission report that found its way into a 1972 Supreme Court decision, Gottschalk v. Benson. This decision and its ill-begotten spawn (CONTU), the reason why algorithms were thought not to be patentable, was a decision repeatedly criticized in the years to follow, a decision which took 20 years of CAFC decisions to render obsolete. A bit later, he contradicts the earlier Jaffe quote:
"In 1998, however, the United States Court of Appeals for the Federal Circuit put this idea to rest. The patent law reached business processes just as any other, and patents for business methods, were, the court held, not invalid because of the subject matter." Right. The CAFC establishes doctrine, not the PTO as the economist Jaffe asserted. He then provides misleading information at a crucial point in his attack on patents:
"While it is clear that patents spur innovations in many important fields, it is also clear that for some fields of innovation, patents may do more harm than good. {90}" Once again, a MAYBE, because he has no data of his own. Footnote 90, which he bases his assertion on the harm of some patents, is a reference to a paper by James Bessen and Eric Maskin titled "Sequential Innovation, Patents and Imitation", which using highly artificial and simplistic economic models concludes that under some conditions patents maybe bad. He also quotes a book, Patently Absurd, "[T]he rush to acquire patent portfolios could slow down the generation of new ideas.". MAY, MAYBE, COULD – truly wimpy assertions with little real world data. He then inadvertently proposes an idea for a serious book on this subject:
"My claim is not that these transaction costs are so high as to make patents unadvisable in the Internet context. My point is simply that these considerations, supported as they have been {96}, at least raise a question." Footnote 96, his support for this assertion, once again is the paper of Bessen and Maskin. Attacking patents based on Bessen/Maskin is like shooting rubber bands at an elephant. But he is right, this is an interesting question. So let's collect some real data, not write these MAYBE books. (Lessig should take a look at some of the recent papers by Mark Lemley at UCal Berkeley's law school, which do present numerical data on IP practices.) But I doubt a book on the patent impact on the Internet will be funded because the data will show that the impact of patents on Internet/software has been no different than the impacts of patents on other fields of technology (maybe even milder, biotech has bigger patent woes), and that the impact of patents on business, good and bad, is generally handled by and accepted by most industries. Problems, especially low patent quality and high litigation costs, sure. But those are logistic problems, not legal problems. He then once again forgets who establishes patent policy, citing one of the more rather clueless commentators on intellectual property laws: "Publisher and Net guru Tim O'Reilly was on the same panel. He had a quick and devastating response. The head of the USPTO, O'Reilly said, has two roles in the administration. One is, as Dickinson had just said, to run the office. But the other is to advise the administration about what policy made sense. And where, O'Reilly asked, following up on my own question, was the policy analysis that justified this extraordinary change in regulation?" Devastating? I think not. Sure, the PTO offers advice to Congress and to the Administration. And to the courts, which is where the types of policy changes Lessig cares about are actually established. But Congress has pretty much let the courts' analysis set patent policy, because that's what the large companies that dominate intellectual property want, and Congress obeys. He then cites some more history: "As conservative economist Friedrich von Hayek put it: It seems to me beyond doubt that in [the fields of patent and copyright] a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work." Competition isn't working in the United States, such as the software industry? About the only substantial concern is Microsoft, but much of Microsoft's monopoly has little to do with patents or copyrights. And there aren't too many other software monopolies I can think of. So Hayek's point has little relevance in the software/Internet world. Another bit of laziness: "But we will never know whether or not it [patent system] does any good if we accept this never-ending expansion without limit. We will never know what benefit this regulation provides until we begin to demand that the regulation prove itself. For the harms from this regulation are not hard to identify, and for the cynical, or conspiratorial, the harms are not surprising." How can we never know about something that is not hard to identify? SHOW ME THE DATA. Here is one good of the patent system – it helps some startups raise money. "The harms are even more pronounced, however, for open code projects." SHOW ME THE DATA. Open code is more plagued by being based on faulty business models and the open coder's lack of education about intellectual property, than threats from patents. "As Richard Stallman writes, 'The worst threat we face comes from software patents, which can put ... features off-limits to free software for up to twenty years.'" Funny. To the extent that copyright offers any protection for software (which is minimal in the extreme), copyright that Stallman's GPL relies upon, copyright can put features off-limits for over 100 years. That's not a longer worse threat? "The reasons patents harm open code in particular is not hard to see." SHOW ME THE DATA. In fact, one of the few data points of actually harm and financial loss is, ........, Greg Aharonian. My lawsuit is based on my Web site's use of open source software (I use the Apache server). Most other harm is that found in every other industry with patents. He then points out a problem I agree with, but again this is a logistic problems solved by toughening up implementation of Section 112: "The problem is exacerbated with software patents because though the patent system was designed to induce inventors to reveal their invention to the public, there is no obligation that a software inventor reveal his source code to get a patent." I agree completely. Much like the biotech patents, Section 112 dealing with enablement is a big problem with software patents, right after 102 lack of novelty and 103 lack of non-obviousness. Every software patent application should include a diskette with the source code on it (no silly best mode objections, please), just like the gene sequence people have to submit their gene sequences. And the PTO should make available an online database of these source codes. Think of it – an online database of over 100,000 computer programs in source code form – it would dwarf everything similar on the Internet, such as freshmeat. Next, a comment that no IP academic really gives a damn about:
"And then there is the expense of patents, which is borne more sharply by smaller inventors than larger." I have yet to see an academic law journal article seriously explore the costs of small inventors acquiring and defending patents. Isn't there at least one activist law school to do a better version of PATNEWS? Next, another "harm":
"Finally there is the obvious hold-up problem – where an innovator is about to release a product and is discovered to be violating a patent. .... As [Berkeley economist Carl] Shapiro concludes: '[T]his hold-up problem is very real today, and ... should [be considered] a problem of first-order significance in the years ahead.] This is a problem that affects all industries, not just software, so it is not a problem that can be used to attack software patents. And if we can improve the quality of issued patents (another issue of no interest to academic law journal articles), the problems of hold-up are lessened. He then wanders into the economics of commons:
"Nobel Prize-winning economist James Buchanan has expanded this idea to the problem of regulation generally. He points to the problem of patents in particular as an example where multiple and overlapping patent protection may create an anticommons, where innovators are afraid to innovate in a field because too many people have the right to veto the use of a particular resource or idea. This potential for strategic behavior by these many rights holders makes it irrational for an innovator to develop a particular idea, just as the possibility of veto by many bureaucrats may leave a particular piece of real property underdeveloped." MAY. POTENTIAL. POSSIBILITY. Again, SHOW ME THE DATA of harm. And if you do collect the data, I suspect it will show that the anti-commons problem for software patents, assuming it exists, is no different and probably milder, than other areas of technology such as biotech and integrated circuits. He concludes his patent commentary:
"The complexity in these rights to exclude creates this anticommons problem. And the more severe the problem, the more it will stifle new innovation." MAYBE. But where is the empirical data showing real stifling effects on the software industry because of patents, especially data that shows the effects are substantially worse than the impact of patents on other fields of technology? Are too many bad software patents issuing? Sure. Can we economically decrease the number of bad software patents issuing? Just as sure. In the concluding chapter of a book that mostly complains about the dangers of copyrights, he has a few paragraphs on patents on page 259:
The urgency [for reform] in the field of patents is even greater. Here again, patents are not evil per se; they are evil only if they do no social good. They do no social good if they benefit certain companies at the expense of innovation generally. And as many have argued convincingly, that's just what many patents today do. Sorry, but many have not argued this evil convincingly. I have yet to see rigorous data showing that innovation is being slowed in any industry. The number of patent applications continues to rise, the number of pages in journals and conference proceedings continues to rise, and the number of books being published continues to rise. The cries and laments of librarians trying to deal with this flood of published innovation grow louder each month. And his favorite example of innovation, Napster, is one of the clearest examples of a complete lack of innovation (both technical and financial) – everything done by Napster was done by someone else earlier, other than promoting copyright theft. A few sentences later:
In particular, [the PTO] should be required to perform an economic study to justify the most controversial extensions of patents right now – business method and software patents. If these forms of innovation regulation can't at least meet the burden of demonstrating that they are more likely to aid innovation than harm it, then Congress should withdraw this form of monopoly protection. Never say that Lessig doesn't have a sense of humor – these two sentences are hilarious. First, after lambasting the PTO for being unfair he calls for the PTO to do a fair study that conceivably could not be in the bests interests of the mandarins that run the PTO. It's like the NRC being asked to do a critical study of the nuclear power industry (hahahaha). Second, no other technology has been asked to demonstrate that their patents aid innovation more than harm – why should software and business methods technologists be asked to do so? Seems to me violate some equal protection aspect of federal laws that Lessig champions. His last comment on patents?
In the meantime, there are smaller changes that Congress might make, all designed to lessen the harm patents generally, and bad patents in particular, might cause. Yea, like what? He couldn't have devoted one more page out of 261 to mention a few of these smaller changes. I hear Lessig is going to lead a campaign of patent law academics to call upon all patent prosecutors to charge their clients less money so that their clients can have more money to do prior art searches (or pay higher fees to the PTO to have them do better searches), as well as demanding that Rule 56 be greatly toughened, and that the Jepson format be mandatory. (YES, this last sentence is dripping sarcasm).
Greg Aharonian January 25, 2002 Stephan Kinsella [send him mail] practices patent law in Houston. His website is www.stephankinsella.com. Copyright � 2002 LewRockwell.com |
So
it is my opinion that the patent commentary in Lessig's new book
should be ignored. Too many unsubstantiated MAYBEs. It is a needless
introduction of an additional bogeyman to further scare [beyond
his copyright commentary, which is the bulk of his book] the wits
of those not overly familiar with intellectual property law. For
the most part, he could remove pages 205 to 215, and 261, his patent
discussion, eleven pages out of 268, without detracting from his
book.