Jump to content
Objectivism Online Forum
DavidV

Are patents stifling innovation in mobile devices?

Rate this topic

Recommended Posts

Inability to detect sarcasm. Next!

But there was nothing ironic or biting or bitter about that snippet. I call that inability to write sarcasm.

Well prior art is not a valid MORAL basis UNLESS by 'prior' they mean 'known and used'.

Known is of course exactly what it means.

You are equivocating meanings of the word Objective, focusing on the pragmatic issue of whether or not it is easy to enforce the law. Objective does NOT mean exclusively materially practical. Morals such as "it is wrong to violate the rights of the innocent" are also Objective.

Not easy, possible. And since the thread is about patents, intellectual property and even property in general, the legal context is the appropriate context to keep in mind. Objective law is not "Objectivist Law™", it is just law properly crafted with the principle of objectivity, lowercase and not trademarked. And because we can't read each other's minds objectivity does usually reduce to the material. It always does in property law. Even so-called intellectual property is only protectable to the extent that it is cast in a specific form, pure knowledge cannot be protected.

Here is an article by Harry Binswanger WHAT IS OBJECTIVE LAW?

Not only that but such laws ARE enforceable without an omniscient perspective. You forget that facts of reality cannot be destroyed. Someone will find them if they exist and if the appropriate methods are used. Yes it would involve a lot of money and a lot of training, but the burden should be on the prosecution, not the defendant, to provide this, in the same way that enforcement of any other law works.

But there are no facts at issue, it is the absence of a fact that is to be proven.

This is a matter of civil law, so there is no prosecutor. As explained at this helpful reference Civil Law vs Criminal Law in civil litigation the burden of proofs is initially on the plaintiff and then switches to the defendants. Both sides have to make their case. However, official acts by the government (specifically patents and copyrights in this context) have the presumption of validity, which means the defendants attacking a patent have a higher standard of evidence to meet than in regular civil court cases (clear and convincing evidence versus a simple perponderance of the evidence). So if you couldn't prove what music was playing at a party you attended years ago that would blow your case about the Beatles song. (I'm mixing patents and copyrights here, but the evidentiary problem is the same.)

The evidentiary problem is so severe that in the case of patents the independent inventor's only defense is to prove his technology predates the patent by a year, and in copyrights prior publication. Also, as I said before the same standards have to be applied to all patent and copyright issues. If you have to be novel or original to get a patent or copyright, by definition anyone who comes along later is not novel or original. Permitting special pleading in the form of "but I didn't know about that other patent/song!" would apply a different and subjective standard than was applied to the original work. That would be just plain nonobjective and unjust.

Share this post


Link to post
Share on other sites
But there was nothing ironic or biting or bitter about that snippet. I call that inability to write sarcasm.

So you find nothing ironic, biting, or bitter about the fact that I basically USED a stolen concept, when I knew better about the issue of slavery, in the same form as you used your argument? Funny, because that fits the definition of irony completely. I guess you must be right though because you cited Wikipedia and I didn't.

Known is of course exactly what it means.

Not easy, possible. And since the thread is about patents, intellectual property and even property in general, the legal context is the appropriate context to keep in mind. Objective law is not "Objectivist Law™", it is just law properly crafted with the principle of objectivity, lowercase and not trademarked. And because we can't read each other's minds objectivity does usually reduce to the material. It always does in property law. Even so-called intellectual property is only protectable to the extent that it is cast in a specific form, pure knowledge cannot be protected.

Here is an article by Harry Binswanger WHAT IS OBJECTIVE LAW?

I'm not questioning that there are patent laws. I am questioning that they are just. It doesn't require reading people's minds to figure out if someone copied another, simply an assessment of the circumstances that would lead each person to develop their own intellectual property. A creative work may happen in the mind but the mind itself has a nature.

Also I find it quite difficult not to see the contradiction in that objectivity reduces to the material in property law even though intellectual property is not protected as other material things are.

But there are no facts at issue, it is the absence of a fact that is to be proven.

This is a matter of civil law, so there is no prosecutor. As explained at this helpful reference Civil Law vs Criminal Law in civil litigation the burden of proofs is initially on the plaintiff and then switches to the defendants. Both sides have to make their case. However, official acts by the government (specifically patents and copyrights in this context) have the presumption of validity, which means the defendants attacking a patent have a higher standard of evidence to meet than in regular civil court cases (clear and convincing evidence versus a simple perponderance of the evidence). So if you couldn't prove what music was playing at a party you attended years ago that would blow your case about the Beatles song. (I'm mixing patents and copyrights here, but the evidentiary problem is the same.)

The evidentiary problem is so severe that in the case of patents the independent inventor's only defense is to prove his technology predates the patent by a year, and in copyrights prior publication. Also, as I said before the same standards have to be applied to all patent and copyright issues. If you have to be novel or original to get a patent or copyright, by definition anyone who comes along later is not novel or original. Permitting special pleading in the form of "but I didn't know about that other patent/song!" would apply a different and subjective standard than was applied to the original work. That would be just plain nonobjective and unjust.

Again, you are arguing WHAT the government does rather than arguing the case of whether or not it SHOULD be this way. Why should patents and copyrights have the assumption of validity when every other kind of property doesn't? Not why do they, why SHOULD they?

It appears you are making circular arguments. How is that objective?

Share this post


Link to post
Share on other sites
Interesting. So i guess I should be allowed to even call my company "Microsoft" and trade as such for as long as I can show that I never heard of Microsoft when I thought of the name?

In a way, yes. Of course, if it could be shown that it creates a false impression you might do well to create a public disclaimer and explain the difference between your Microsoft and the first Microsoft.

IIRC there are two Apples going around, one for computers and one for music. They dealt with it privately and without government involvement until one of them broke a contract with the other.

Share this post


Link to post
Share on other sites
In a way, yes. Of course, if it could be shown that it creates a false impression you might do well to create a public disclaimer and explain the difference between your Microsoft and the first Microsoft.

Or you might think it is in your interest to give the impression that you are the same as the other Microsoft, especially after you hear about its good reputation? Why would you want to put any disclaimer in such a situation when you are the one gaining (from Microsoft-1's reputation) - and there's no one to force you to do it?

Share this post


Link to post
Share on other sites
In a way, yes. Of course, if it could be shown that it creates a false impression you might do well to create a public disclaimer and explain the difference between your Microsoft and the first Microsoft.

Bottom line is that if you accept that government should force you to "create a public disclaimer," instead of forcing the first Microsoft, then you are accepting that their first-come status gives them a special position with regards that property. But if you accept that, then your whole argument goes down too.

If you do not accept that government should force them to create this disclaimer, but that they should "deal with it privately," you have the problem of what to do with someone who doesn't see making that disclaimer as in his interest because he can see the opportunity of "stealing" the reputation of the first company (through public confusion) after he subsequently finds out about its good reputation.

Copying therefore has to logically be defined existentially: by a first-come-first-serve standard.

Share this post


Link to post
Share on other sites
Bottom line is that if you accept that government should force you to "create a public disclaimer," instead of forcing the first Microsoft, then you are accepting that their first-come status gives them a special position with regards that property. But if you accept that, then your whole argument goes down too.

If you do not accept that government should force them to create this disclaimer, but that they should "deal with it privately," you have the problem of what to do with someone who doesn't see making that disclaimer as in his interest because he can see the opportunity of "stealing" the reputation of the first company (through public confusion) after he subsequently finds out about its good reputation.

Copying therefore has to logically be defined existentially: by a first-come-first-serve standard.

First, to make a copy of something one has to interact, intellectually, with that from which one has copied. Therefore there is no such thing as 'existential copying' if that means 'copying something without intellectually interacting with that from which one has copied'.

Second, what differentiates between the 'potential' occurring when I am about to create something which I, through all the facts I know, happen to come to conclude that I am about to release something original on the market, and the potential occurring in, say, futures markets? Or even "the money I would've made if that guy hadn't 'stolen' my idea"? The second and third potentials are to be considered real and the first potential unreal?

Third, what if instead of making trademark have the status of law, we had a system where context could be considered. Intentional or negligent diversion of customers toward you through positive (misrepresenting your business as related to theirs) or negative (misrepresenting their business as having done something they didn't) fraud, when it was clear that these customers were in fact defrauded, can still be a tort, without such ludicrous scenarios as someone suing somebody else because they used the phrase Y2K in their blog post or sung Happy Birthday at work.

Share this post


Link to post
Share on other sites
TuringAI,

You have not responded to anything in the argument you have quoted above. Can you first answer the problems posed to you in the last two posts?

How did I not? If you're wondering why I didn't respond specifically to your claim in the first two paragraphs, it's because I was taking a broader approach. If there is any exact meaning to the text you wish me to address perhaps you could paraphrase. It would help to know what it is to which you are referring.

Share this post


Link to post
Share on other sites
Third, what if instead of making trademark have the status of law, we had a system where context could be considered. Intentional or negligent diversion of customers toward you through positive (misrepresenting your business as related to theirs) or negative (misrepresenting their business as having done something they didn't) fraud, when it was clear that these customers were in fact defrauded, can still be a tort...

I see that this was an attempt to answer the problems i posed to you. However, simply using the name Microsoft can itself make many people think it is the original Microsoft, (especially if it is difficult to prove that one never heard of Microsoft) and they can trust your services as a result of this confusion. You would not need to "positively misrepresent your business as related to theirs"; all you might need is to make no effort to correct that impression in the minds of people about this association. That can't be a tort. So how is it dealt with in your ideal world of no legal trademarks?

Edited by blackdiamond

Share this post


Link to post
Share on other sites
I see that this was an attempt to answer the problems i posed to you. However, simply using the name Microsoft can itself make many people think it is the original Microsoft, (especially if it is difficult to prove that one never heard of Microsoft) and they can trust your services as a result of this confusion. You would not need to "positively misrepresent your business as related to theirs"; all you might need is to make no effort to correct that impression in the minds of people about this association. That can't be a tort. So how is it dealt with in your ideal world of no legal trademarks?

Well people need to be responsible for their presumptions, and if they really don't know if it's the same or not they can do research. Likewise, since speaking the truth is legal but lying isn't, the original Microsoft gets to warn people, and gets to add materially relevant facts to their products, and the other company can't dismiss the warning without being fraudulent, nor can they copy a materially relevant fact because it's impossible.

By materially relevant fact, the founder of Microsoft is Bill Gates, who was born at a certain place and time and had certain life events attached to him. Those cannot be replicated. Sure someone could rename themselves Bill Gates, but can they recreate the place and time of birth and the life events? No. Can they claim to have done the same things as Bill Gates? No.

Oh, and if it becomes clear and apparent to someone with good judgment that they are intentionally creating such impressions to wreak confusion upon the market, a GENUINE fraud charge can be claimed, and perhaps even genuine copying charges. By genuine copying I mean the kind were a person intellectually interacts with IP and FROM it produces a copy.

Share this post


Link to post
Share on other sites
Well people need to be responsible for their presumptions, and if they really don't know if it's the same or not they can do research.

This assumes that they even know that they don't know. In their minds, they might have no reason whatsoever to suspect that this salesman saying he is from Microsoft is not from the Microsoft they know to be a good company.

Likewise, since speaking the truth is legal but lying isn't, the original Microsoft gets to warn people, and gets to add materially relevant facts to their products, and the other company can't dismiss the warning without being fraudulent, nor can they copy a materially relevant fact because it's impossible.

Firstly, it needs not be a product, it can be a service.

Secondly, this puts the responsibility on Microsoft to be investigating everyone that has also called themselves Microsoft and to know what they are doing that requires a response; there could be 200 Microsofts around the world and they need to know what their salesmen are saying or if the people in those areas are associating them with them, and to counter that with appropriate and specific disclaimers and warnings in every case. That ideal world makes life practically impossible for Microsoft, besides being impossibly expensive. In the current world of trademarks, all Microsoft needs is to stop everyone from using their name, no matter how they intend to use it.

Doesn't that cause any doubts in your mind?

Share this post


Link to post
Share on other sites
The reason air or sunlight are not property is not because they are not scarce but because they do not need to be created.

Are you saying that the metaphysically given cannot be "owned"? Only Man-made facts are subject to property rights? :huh:

Share this post


Link to post
Share on other sites
Are you saying that the metaphysically given cannot be "owned"? Only Man-made facts are subject to property rights? :dough:

I believe she is, and so do I. Only man-made facts can be subject to property rights. What is your problem with that?

Share this post


Link to post
Share on other sites
I believe she is, and so do I. Only man-made facts can be subject to property rights. What is your problem with that?

No problem. I just wanted to make sure I understood correctly, thus I asked a question. :dough:

Edited by prosperity

Share this post


Link to post
Share on other sites
By the way, Turing, just out of curiosity, are you a libertarian? (No offense intended.)

Well, I'm not a full fledged Objectivist, and my roots in this were libertarian. So in a sense I am indeed libertarian. However I don't buy into the whole libertarian tolerance of other philosophies thing, and now I am questioning Rand's wisdom on specific things so I am in the process of creating my own philosophy.

I believe she is, and so do I. Only man-made facts can be subject to property rights. What is your problem with that?

If by man-made you mean "created, altered, or controlled by man" then sure. Otherwise, we couldn't make property of land. We don't create the land usually, we simply alter and control it. So it depends on what other things you include under the umbrella of 'man-made'.

Share this post


Link to post
Share on other sites
If by man-made you mean "created, altered, or controlled by man" then sure. Otherwise, we couldn't make property of land. We don't create the land usually, we simply alter and control it. So it depends on what other things you include under the umbrella of 'man-made'.

I think it depends on what you are doing with the land that determines whether you own it or not. If you are just passing through, then no. If you are working the land, and no one else has previously made a claim to working the land, then I think you end up with ownership of the land because you've made it into something useful to yourself by applying reason to the problem of your survival needs or wants.

Does that fall within the "alter and control" you are talking about?

Share this post


Link to post
Share on other sites
I think it depends on what you are doing with the land that determines whether you own it or not. If you are just passing through, then no. If you are working the land, and no one else has previously made a claim to working the land, then I think you end up with ownership of the land because you've made it into something useful to yourself by applying reason to the problem of your survival needs or wants.

Does that fall within the "alter and control" you are talking about?

Yes, and this is somewhat off topic, but I think that anyone who chooses to 'control' a given piece of land should also get it. Intent to let it lie fallow and start producing when all other land is used up is a good long term economic strategy. Land CAN be used up, and it can also be controlled without violating rights from afar, since land exists in one particular location and therefore what someone does with their property over there has no effect on what I'm allowed to do with mine over here.

Share this post


Link to post
Share on other sites
The patent on playing with cats is actually kind of funny. Funny I think because it sounds absurd. Ditto for the patent on method of swinging.

These kinds of patents came about as a result of a policy change implemented during the Clinton administration. A new 'customer service' credo held that the Patent Office was in the business of issuing patents, and the more the better. If an application could be put into correct format and no documented prior art blocked patentability, it would be allowed. Thus, examiners could no longer use common sense in applying a utility standard, they had to have a paper. Who the hell documents how they play with their cat? Thus, the cat plus laser pointer patent issues.

The pragmatic rationalization of this policy runs like this: The applicant is happy with the patent he wanted. This increased the fees collected for the Office and subsidizes operations. Truly useless patents are economically harmless in that they are unenforcable in court, or for only trivial amounts far less than legal fees.

The objection is that the entire patent system has its credibility undermined. But as in any pragmatist argument against integrity, an abstraction like 'credibility' has no value.

Share this post


Link to post
Share on other sites

Relevant to this issue, Professor Adam Mossoff of George Mason University - School of Law has written a paper titled "A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket". The paper was serialized at the The Volokh Conspiracy law blog with some discussion. The full paper of 50 some pages is available for free at the SSRN.

This was an example of fragmented property rights which were hindering an industry, but the people involved figured out a rational way forward with no one's property rights being violated.

Abstract:

Scholarly interest in how anticommons theory applies to patents has skyrocketed since Professor Michael Heller first proposed a decade ago that excessively fragmented interests in land can frustrate its commercial development. There is now a vigorous debate on whether anticommons exist in patent law, and, if so, whether these patent thickets impede innovation in patented products. As Professor Heller writes in his recently published book, The Gridlock Economy, "the empirical studies that prove - or disprove - our theory remain inconclusive."

This article contributes to this debate by analyzing the rise and fall of the first patent thicket in American history: the Sewing Machine War of the 1850s. The invention of the sewing machine in the antebellum era represents many firsts in the American legal system - the first patent thicket, the first "patent troll," and the first patent pool. Significantly, this case study verifies that patent thickets exist and that they can frustrate commercial development of new products. But it also challenges widely held assumptions in the patent thicket literature. Many scholars believe that this is largely a modern problem arising from a host of allegedly new issues in the patent system, such as incremental high-tech innovation, excessive litigation, and the rise of "patent trolls." Yet the sewing machine patent thicket exhibited all of these phenomena, revealing that patent thickets have long existed within the historically successful American patent system. The denouement of the sewing machine patent thicket in the Sewing Machine Combination of 1856, the first privately formed patent pool, further challenges the widely held belief that patent thickets are best solved through new statutes, regulations or court decisions that limit property rights in patents. To the contrary, the Sewing Machine Combination was formed against the backdrop of the strong protection of property rights in patents in the antebellum era. Thus, the story of the invention of the sewing machine is a striking account of early American technological, commercial and legal ingenuity, which heralds important empirical lessons for how patent thicket theory is understood and applied today.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

  • Recently Browsing   0 members

    No registered users viewing this page.

×
×
  • Create New...