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Puppy Dog

Is intellectual property a coercive monopoly?

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There are plenty of arguments for things like patent law, but what about cases where two separate, unconnected people think of the same idea, but because one thought of it first and ran to the patent office (or the other had no interest in commercializing it) they get a monopoly on production and can legally prevent the other from using it even for personal use?

One example I can think of is the Jetpac outboard. It's like an outboard motor for boats, except it floats on it's own like a separate boat, so the weight isnt hanging off the transom. They have a patent on it. I knew of somebody who built their own version years prior just for personal use and had no interest in commercializing it, yet under patent law they could now be prosecuted for using their own homebuilt design because it is now patented by somebody else. It seems a violation of individual rights to deny someone the use of their own mind if they werent exposed to the idea.

And on a related note, should patents/copyrights/etc exist for a limited time, like 20 years? Or for life? Or forever? Should the created work ever "return to the commons" and become usable by all at some point?

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I knew of somebody who built their own version years prior just for personal use and had no interest in commercializing it, yet under patent law they could now be prosecuted for using their own homebuilt design because it is now patented by somebody else. It seems a violation of individual rights to deny someone the use of their own mind if they werent exposed to the idea.
I assume that this is someone in the US. If he was the first to invent, as you imply, then he cannot be prosecuted (actually, nobody is prosecuted for patent infringement: it's a civil matter, not a crime). I do not know if proof of having been the first to invent can lead to a patent being rescinded, but at the time he made it the gadget wasn't protected by patent.

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The scenario as described would not happen because in the law (35 U.S.C. section 271) there is a Defense to infringement based on earlier inventor.

IN GENERAL.— It shall be a defense to an action for infringement under section 271 of this title with respect to any subject matter that would otherwise infringe one or more claims for a method in the patent being asserted against a person, if such person had, acting in good faith, actually reduced the subject matter to practice at least 1 year before the effective filing date of such patent, and commercially used the subject matter before the effective filing date of such patent.

The defense is limited to a method not a gadget, but as outboard motors and flotation devices existed before this invention that might be good enough for this example. "Commercial use" is defined in the law I quoted and is broadly construed, it did not have to be for sale or even known to the public to qualify as a defense.

http://www.uspto.gov/web/offices/pac/mpep/...idated_laws.pdf

All intellectual property rights should be finite in length because intellectuals lifetimes are finite in length, and yet long enough to be useful to the inventor/writer. In my opinion life plus 70 years for copyrights is too long, 20 years for invention is just about right.

Trademarks are forever, so long as they are in continual use and actively defended by the holder.

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I'd have to do some more research before I could give some better examples or track to original sources, but everything really comes down to economic justice. Who is responsible for the creation of the wealth? Objectivism (correctly) tries to remedy some of the worst abuses of all - the abuse of businessmen and of men of the mind who create techniques, technologies, and ideas which make our life better and bring them for market for sale/trade with those who would be unable to create such things for themself.

Good examples of abusiveness which seem to be legal under current patent laws but seriously make me question who is creating the value would be things like biopiracy... some native tribe develops and has some cure for some disease, say a combination of herbs and processing techniques, and this is appropriated by some corporation and then often patented or trademarked, to where if the tribe itself tried to sell the remedy publically they would be sued by the corporation that stole it. I've even heard of cases in the amazon where some tribe comes up with a natural cure for something, then local enviromental degradation (from an oil company or whatever) wipes out the natural and local sources of the herbal treatments, and then the tribe has to buy the patented lower quality medicine from the corporation that took the knowledge "which could not have come up with it by itself".

You could argue that without the bioprospector the 'cure' would never have been commercialized and by bringing it to market and making it available for all they are doing a service. Yet the argument of who created or discovered the original resource is that the indian tribe discovered it or developed it, and the bioprospector would have nothing to sell.

I've heard of other examples where the blood of a child was taken at birth without consent (everyone under age 34 in the US and I think most other first world countries has their blood taken and sent to federal databases and used for research for everything from medical to bioweapons) and later developed some disease, and had found that some company had used HIS STOLEN BLOOD to do research and come up with a treatment for the disease, and is claiming patent rights based upon that. The person whose blood led to some insight into how to treat the disease due to his unique DNA sequencing or some natural adaption not only gets no compensation but not even any discount for using the treatment. (I dont have a source for this right now, related to me by a source i've previously found 100% reliable who studies such things)

In my original example with the Jetpac, perhaps for personal use or prior invention it would not be a problem so its not the best example, but if I developed the motor for use on my own and my friends fishing boats, and then they come up with and patent it (and my arguments for prior art are ignored or considered unprovable) I would still I assume be prevented from creating new ones either for personal use or for sure for sale to my friends. I see many stupid and abusive patents (example: http://en.wikipedia.org/wiki/Sealed_crustless_sandwich selling a peanut butter and jelly sandwich could be a crime now, I could probably find even better examples if I want to search, look for "patent trolls" to find some examples) that I have to wonder whether they were obtained by bribing some PTO official at times, and yet the problem of asking for patent reform where certain patents or classes of patents or patent rights could be overturned or even rendered illegal would itself be an abuse of legitimate businessmen in some cases who brought legitimate things to market.

Any cries of patent reform are rightfully scary to businessmen, since it could be used as just another form of looting their legitimate creations and legitimate profit, as government has done countless times in the past. But when is it instead economic justice to steal from the corporate looter and return stolen goods to the actual creator? The concept of property is the origin of some of the worst abuses by those who game the system. I'm not suggesting an arbitrary set of laws (ie - Sherman Act) should hold it in limbo whether something is legal or not until they want to prosecute you, but not everybody holding property is an upstanding moral Hank Rearden creating everything from his own mind fair and square. Nor do I think the government is the fair arbiter of redistributing what they could term ill gotten gains, by simply declaring anybody anywhere to have made an unfair profit. It may be there is no solution. I'm just trying to bust the illusion that the age of much freer capitalism was automatically an abuse-free golden age flowing with milk and honey for all, or that returning to total laissez faire would truly be good for all by preventing such abuses. (even if it would be clearly better for the true men of the mind and creators of wealth, and perhaps it would do more good than abuse)

Edited by Puppy Dog

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I'd have to do some more research before I could give some better examples or track to original sources, but everything really comes down to economic justice.

I have several responses to your post, but they don't add up to any central idea.

There is no such thing as economic justice, there is only justice. I will admit to a moral justice and a narrower context of legal justice, but slicing it up any further isolates the various areas of life and prevents using a common concept of justice and effectively nullifies the benefit of using a concept to think in principles.

Law and justice are necessarily two different things. There will never be a utopian legal system designed to prevent all possible injustices from occurring, we can only try to restore justice after the fact.

I used to work for Patent Office so I can tell you exactly why bad patents are issued. The examiner of the application could not locate sufficient documentary evidence to disallow the claims, within the very limited amount of time permitted researching each application. Most patents are actually worthless, they are the result of people padding their resumes, or simple vanity, or following some corporate policy, or a defensive measure related to a patent that is worthwhile in anticipation of a legal battle that never materializes. The patent attorneys and the Patent Office are happy to give the people what they want because it is all just fees and billable hours in the end, and a worthless patent does no harm in their opinion. For example, even the crustless sandwich patent (while it was in effect) was not economically enforceable against moms making PB&J's for their kid's school lunches because legal fees were far greater than any possible demonstrable harm, and the simple workaround of leaving the crust on until the kid eats it. It would be worthwhile to enforce it against another big company manufacturing the things in ten of thousands, but that company can afford to hire lawyers to defend itself and attack the patent in court, where there is unlimited time.

Wikipedia says the crustless sandwich patent was cancelled after reexamination proceedings. There are corrective procedures in place and they work.

"Patent troll" as an epithet assumes a certain point of view on the role of non-practicing entities which I do not agree with. Not everybody who has a good idea also has the capital to put it into practice. It cannot be justice to only allow patents to the rich, or to command the inventor also be a manufacturer, or to order him to sell or license his invention on any other than his own terms. Some non-practicing entities are speculators, purchasing a patent from the inventor and then trying to monetize their investment. This is completely valid, and very advantageous to small inventors. Speculation in general is a good thing, but I won't attempt to defend it here it is too far removed from the topic.

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but everything really comes down to economic justice.

Marxist concept. You definitely need to do more research. I take it you're still in school?

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I knew of somebody who built their own version years prior just for personal use and had no interest in commercializing it, yet under patent law they could now be prosecuted for using their own homebuilt design because it is now patented by somebody else.

Are you sure of that? One can make anything for personal use.

Just because one "runs to the patent office first" a moral government would still check for other items in the market place that were similar. Additionally, there is reason to have an objective system to hear arguments for who may have produced a particular product first.

As a government becomes less focused upon rights of individual men, the collective begins to determine who the winners will be based upon subjective judgements rather than upon objective judgements based upon actual context.

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All intellectual property rights should be finite in length because intellectuals lifetimes are finite in length

This argument is fallacious. More specifically, a non-sequitur.

Land rights, for instance, are infinite in duration, though landowners' lifetimes are finite in length. Why does your deed to the land you bought not expire after 20 years? Why are you allowed to sell your right to that land and the buyer to sell it again, and so on with no limit but not the property over the idea you created?

At the root of trying to impose time limits on IP is the (utilitarian) fear of "intellectual gridlock". If you concede that fear, you have already surrendered the argument to the anti-IP anarchist/libertarian.

There is, in fact, no good reason to time-limit IP, and no rational justification for it.

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