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IP: Intellectual Property

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That's a bad way to start. Backwards is usually a bad way to start.

It is a better start to ask: what facts of nature and of man's nature necessitate and give rise to the concept of intellectual property?

That is the same question with which Rand began her inquirity into ethics (TOE), though she had "value" in place of "intellectual property".

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Two gold prospectors can claim a piece of unclaimed land (California gold rush?) simultaneously and independently - but the first one to register the deed obtains the legal rights.

Patents are not analogous to real estate titles. We agree that if two gold prospectors are heading for the same parcel of land, the first to mix his labor with it (following John Locke) earns moral and legal title to it. However, the same factors are not in play when it comes to exclusive rights to an invention. If Inventor A, by his own ingenuity and hard work creates, say, an invisibility cloak, we hold that the cloak rightfully belongs to him and that he may rightfully sell it to others and also rightfully attach certain conditions to the sale -- such as not selling duplicates of the product to others. However, if Inventor B by his own hard work and ingenuity arrives independently at a similar cloak, there is no contradiction in saying that B also rightfully owns his cloak and has the right to sell it to others. While we cannot have two gold diggers mining the earth in the same place at the same time, our inventors and their devices are operating in separate realms, with neither interfering with the right of the other to engage in production and trade. Furthermore, if we grant one inventor a patent and thereby prohibit the other inventor from selling the product of his labor, it would be equivalent to allowing only one gold mine owner (out of a thousand mine owners) the exclusive right to sell gold on the market.

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I'm not yet ready to fully enter into this conversation since I am still working out these issues on my own. However let me ask you some questions.

...

Isn’t the first inventor’s right to his idea a violation of the second inventor’s right to the same idea?

...

It is not clear to me whether you are differentiating between IDEA and DISCOVERY. Are you?

As has been said before no one can patent a discovery. But Intellectual property refers only to the COMBINATION of a discovery and the modification of your environemnt guided by that discovery. The result is something of value. Everything of value is created this way (I can think of no exceptions).

I'm not even sure that there is a significant difference between intellectual and physical property (this is what I am currently contemplating on my own).

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It is incredible to me that supposed Objectivists on an Objectivist forum are struggling with such a fundamental issue as this. Setting aside all the extraneous problems in implementing such canons in law there are two principles on which we must have agreement in order to discuss this issue logically:

1) In order to live man has the right to the fruits of his labor.

2) Everything man does originates in his mind.

Knowing that man is a conceptual being and that his most fundamental right is his right to life, it is plain that man must have the right to the fruit of his labor and that all of his labor is necessarily the product of his mind.

Godless Capitalist has already questioned the validity of the “concept of intellectual property”. I would appreciate knowing which of you disagree with the above as this will be a signal to me that logical discussion with you is impossible.

Marc

First of all, I would consider myself a "student of Objectivism," not an Objectivist. I am not a beginner, either. I started studying Objectivism 20 yrs ago in college, although since then I have gone through long periods of not giving it much study.

It's very easy just to read Ayn Rand's explanation of some concept, say "oh, that makes sense," and learn it well enough to recite it back. But that doesn't mean you really understand it and can fully explain it yourself. There are a lot of very complex issues, including intellectual property, that are not easy to fully understand and integrate.

The "two principles" you cite are not axioms. I would invite you to write and post a detailed explanation of the validity of the concept of intellectual property. If you can explain it clearly and convincingly, I will be grateful. If not, maybe its not as obvious as you seem to think.

Tommy, do you understand what pragmatism is and why it is not consistent with Objectivism?

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Two gold prospectors can claim a piece of unclaimed land (California gold rush?) simultaneously and independently - but the first one to register the deed obtains the legal rights.

I have a problem with this too. Where is the application of the mind to creating value? Read CUI p. 123 where AR approvingly describes the Homestead Act, which required that a settler cultivate a piece of land for 5 yrs before it became his property. In other words, it became his property through the use of his mind to develop it, not just because he was the first to get there and claim it.

And again a practical idea is not the same a plot of land or other physical property. It can be developed and used by different people at the same time. Obviously only one person can own and use a plot of land, but that is not clearly the case for an idea.

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Tommy, do you understand what pragmatism is and why it is not consistent with Objectivism?

I haven't read much about pragmatism so I tend to go along with the dictionary definition.

From the dictionary

Pragmatism:- The theory that advocates dealing with social and political problems by practical methods rather that by methods adopted to an ideology.

Going by this definition, I don't think my argument is pragmatic.

What I am trying to say is that just like the existence of fundamental rights is in the self-interest of every human being, similarly patents and time limits are in the self-interest of every human being.

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Isn’t the first inventor’s right to his idea a violation of the second inventor’s right to the same idea?

Both inventors have the right to the IDEA. The first inventor gets the right to exploit the idea commercially for a limited time because he was the first one to seek to do so.

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I myself am no longer sure that the concept of “intellectual property” is valid.  I understand the arguments for intellectual property but I still consider them pragmatic.

Don't dismiss practical considerations as "Pragmatism" -- i.e., being unprincipled.

The moral IS the practical and practical considerations often lead us to valid moral principles.

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I am prepared to hear arguments for eternal patent protection or no patent protection, but not limited (eg 25-year). That's just arbitrary and (as far as I can see) unsupportable by rational principles.

How about if I shift the topic to give you what I think is a clearer example of an underlying principle? I promise to get back on track.

A thief should be forced to make up for his transgression by restoring his victim; but simple repayment for the cost of the goods is insufficient. Even a fairly incompetent burglar could probably get away with it 50% of the time, which means 50% of his thieving activities yield no profit, but also no loss (other than some small expense of getting to the crime scene, etc). So crime can pay, if there are no consequences in excess of simply returning what was taken (plus whatever factor that can be justified as recompensation for loss of the use of theproperty for some period of time). Punishment is necessary, and its purpose is to deter criminals.

It would indeed be possible to impose infinite punishment (death), but we elect to impose what seems like an arbitrary punishment. If we follow the model of civil suits, treble damages should be the standard punishment for theft. That's a seemingly arbitrary number, but we simply have to evaluate it in terms of how it fulfills its purpose. If the number is too low, it does not serve its purpose of deterring theft; if the number is too high, it unnecessarily deprives the criminal of his rights (despite claims elsewhere here, the commission of some crime does not justify killing the discreant). Of course we should argue about whether treble damages are the correct figure, as opposed to quadruple of double damages.

Now back to the point, we have to first identify the purpose of a patent: the duration of the patent should be evaluated in those terms. The purpose of protection of IP is to recognise that man has a right to own the product of his mind. Not just the product of his physical labor, but that which he creates by using reason. That right is necessary in order for man to live as man (as a rational being, not a beast of instinct and brute force). This is a fairly basic and defining criterion in terms of Objectivism vs. Libertarianism. Libertarianism (generally speaking: there aren’t any clear defining properties of Libertarianism) holds that rights are primary and absolute, and Objectivism does not. Objectivism derives rights, as a means to the particular end that we take to be primary -- existence. Very simply, rights serve a purpose.

You raise various points that do need to be answered, e.g. why “first come, first served”, but vita brevis est, at least this week. It’s easy to accuse someone of being a pragmatist if they evaluate a principle based on whether it correctly recognises what is needed for some purpose, but that isn’t what pragmatism is about (and especially what is bad about pragmatism). The question “for what purpose?” is a central question in Objectivism.

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It is not clear to me whether you are differentiating between IDEA and DISCOVERY.  Are you?

I do differentiate between them, but what you were responding to did not have anything to do with ‘discovery’. The whole point to that question was that both inventors had an original idea. (not that one discovered it from the other)

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I do differentiate between them, but what you were responding to did not have anything to do with ‘discovery’.  The whole point to that question was that both inventors had an original idea. (not that one discovered it from the other)

If this is the case, then tentatively I would say that some form of shared rights would be applicable. That is if it can be proven that these individuals did in fact independently develop their ideas--both applying their knowledge to reality to produce value with neither of them 'piggy-backing' off the other's thinking.

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Now back to the point, we have to first identify the purpose of a patent: the duration of the patent should be evaluated in those terms. The purpose of protection of IP is to recognise that man has a right to own the product of his mind. Not just the product of his physical labor, but that which he creates by using reason. That right is necessary in order for man to live as man (as a rational being, not a beast of instinct and brute force).

Right, but that doesn't expain why a patent should be limited in the first place.

It’s easy to accuse someone of being a pragmatist if they evaluate a principle based on whether it correctly recognises what is needed for some purpose, but that isn’t what pragmatism is about (and especially what is bad about pragmatism).

Fair enough. It just seems sometimes as if Tommy and AR are arguing for some floating concrete practicality first, and then deriving the principles from that. perhaps I am misunderstanding, though.

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Godless Capitalist:

1) In order to live man has the right to the fruits of his labor.

2) Everything man does originates in his mind.

This is the simplest formulation I can come up with. 1&2 are principles with which every Objectivist I know would agree. #1 is a statement of Objectivist ethics, #2 is a statement of fact. From 1&2 it follows that man has the right to the product of his mind -- this is what the concept of intellectual property recognizes.

Axioms cannot be used to explain anything. Axioms are the base of all knowledge and must be accepted in order to describe reality. Maybe we will find that you and I disagree that existence exists or that conciousness exists or that man is a rational being but whole books have been written on this subject and I don't think I will take the time to derive the Objectivist ethics here and now.

Let us instead start here: If you disagree with 1 or 2 or the conclusion I reach then please say so and we can go from there. Thanks.

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Anyone in favor of a time limit: why can’t you consider that the time limit is the system itself? Any new invention or innovation is going to have a lead on any competitors. No one has a right to another person’s ideas; the inventor would in no way be obligated to help people understand his method. A simple but revolutionary invention like the wheel would be copied relatively fast, while a new process for printing microchips might take years to discover/copy if it lased long enough to be copied at all. How many inventions can you think of that don’t require new equipment and techniques? How many worth while inventions are easy to copy? I have my doubts that a world without patents and copyrights would be a ‘copy fest’ that would stop innovation. Don’t most patents and copyrights actually go to the companies anyway? I know if I invent anything I have to be careful because my university will claim rights to the idea. But regardless, a company has plenty of incentive to become more productive regardless of who copies them; in the end they are still being more productive.

People are people, and people have a right to use ever last scrap of idea they can pick up from books, classes, sidewalks, radio programs, pictures, mousetraps or movies. Whether or not an idea was invented by Thomas Edison or someone modern inventor I have every right to judge it and act on it myself. Do you think I would be very successful as a secondhander trying to copy other people’s ideas? I doubt it. But why go after the imperfections of a finish with the roughest grit you can find? Afraid that companies would race to steal each other’s ideas? – News Flash > they already do. Afraid that there would be no incentive to invent anything? – lol > Pure invention is the epitome of specialization, freedom of ideas does not re-order the importance of ideas in production, it does not make an invention or innovation less valuable.

I know this is not directly related but this whole issue reminds me of what Ayn Rand said about racism in the Q&A portion of the WestPoint lecture, “…they will suffer the workings of the system…” (racism cannot be cured by legalizing racism, but is by nature an impractical drawback in a free society that will work itself out). Contrary to racism, invention and innovation are practical advantages in a free society. In my opinion the advocates of intellectual property rights think that invention and innovation are made practical by law, just like the advocates for affirmative action think racism is made impractical by law. Every Objectivist would agree that affirmative action is in fact a promoter of racism and an evil idea. While I am merely a student of Objectivism, I disagree with Objectivists that promote intellectual property rights as good for invention and innovation.

I think the error other people are making lies in the transgression of the principle that a person has a right to their ideas. The principle means exactly what it means, it is a statement about one’s freedom of action, not a sanction for other people. If we were talking about the right to a car it would be different; if I have a right to a car it would in fact be a sanction on other people because I can not have my car if they have it. I can however, have my idea if they have it, in fact I have loads of ideas that other people have, any attempt to sanction my ideas is a violation of my rights, telling me that I can’t act on what I know to be better is against my life.

A right to your own ideas means just that, everyone has a right to act on their best judgment, if I judge someone else’s idea to be better than my current one then it would be impractical not to use it as my own – especially if I was in a business and wanted to remain in business. No one has a right to declare an idea unusable to anyone else; they do however have a right not to share it.

As far as I can see the principles they go like this:

A man has a right to act on his own best judgment. his ideas

A man has the right to the product of his efforts. material values or new ideas

Prohibition of another person’s use of his ideas (be them discovery or late invention) is a violation of a man’s right to act on his own best judgment and ergo cannot be a right.

A right to a material value does provide a prohibition of another person’s disposal of it because “you can not have your cake and eat it too”

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Parts of your argument seem akin to the anarchist's argument.

The exercise of a person's rights is subject to objective law. For example, citizens are required to delegate their right to self-defense to the government. For example, people are required not to copy others' patented applications of ideas, even if they came up with that same application of the same idea on their own. This is necessary for effective, fair, and objective justice. Without it, the courts would be impotent to protect intellectual property.

If you have a girlfriend, you still have her even if someone else has her. This is true of very many non-material values. The objection that such a value is not material is silly. Intellectual property, like many non-material values, can be stolen.

Patents are the means of protecting rights to intellectual property. Without patents, the only means is secrecy, invisibility, a wall of silence - or force. Neither makes it possible for men to think as their means of existence. As an example, the Wright brothers would have refused to invent the airplane if they could not protect their invention. As it was, while they were waiting for their patents to be approved, they were very cautious about even letting other people see the Flyer fly, lest those others get too close a look and build their own. The Wrights had to get their secrecy right every time; the imitators only had to get their espionage right once. Patents are necessary on principle.

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Right, but that doesn't expain why a patent should be limited in the first place.

If you own the implementation of an idea in perpetuity, it can be bought and sold as a commodity, and claims can be made forever against anyone using the simplest tools. That means that the knife, the hammer, the wheel, the screw driver, the screw, the saw, the pulley, the lever, the battery, and so forth and so on, are all in principle patentable. All technological innovations would be property, subject to the restrictions imposed by their inventors or their descendants. This would be an intolerable record-keeping problem, and poses an unjustifiable barrier to technological development. It would essentially create a hereditary entitlement.

Patents impose a certain limitation on what you can do with the product of your reasoning: for the relevant periond of time, you cannot exploit an invention which someone else has made. But it is quite reasonable to expect that the very same invention could eventually be made by someone else, acting on the basis of their knowledge. Putting a time limit on patents thus keeps the special status granted to the first inventor from being a permanent restriction on human intellectual activity. The problems with perpetual copyrights are even greater: a patent is a restriction on a very specific implementation of an idea, but a copyright is a restriction on something moch broader. Not just the exact words or tune, but anything that substantially resembles it. [insert joke about Vivaldi being a musical self-plagarist].

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I have a lot of thoughts about intellectual property and patents in particular. I think I'll share some of them here.

Earlier, the issue was raised that 20 years (or 18, or whatever) is an arbitrary length for a patent to have, that it has to be perpetual or zero. I think that's nonsense. The number 20 is somewhat flexible; it could be 19 or 21 with little difference. But there are other issues where "somebody just has to pick a number" where it is not arbitrary. The voting age has to be something. The speed you drive your car down the road has to be something, it is not true that your speed has to be zero or infinity, or else you are a whim-worshipper.

When you own a piece of physical property you own only one thing. When you own a patent, you own a concept, and a concept covers a potentially infinite number of objects. It's one thing to own a guitar but it's something else to own the concept of "guitar" and be able to claim an ownership share of every guitar, everywhere, including those yet to be made. Yet this is what it would mean if you had a patent on the guitar. In a capitalist society you can license that patent on any terms you wish, so, in effect, you can place arbitrary restrictions on all guitar owners, everywhere. So you still have, in a manner of speaking, an ownership share of all those guitars.

This is why patents have to be time-limited. There is no other way to limit them that can be the same for every patent and yet not also be a price control.

So why not eliminate patents completely? Well, the practical reason we have patents is so that new concepts which cost money to invent can be invented. If there were no way for an inventor to recoup his investment, he would not invent, or if he did anyway, the market would punish him for doing so.

Some aspects of the existing patent system are not rationally justified. The patent office now grants patents on discoveries, such as the human genome. Also, it makes it possible to file a patent on an idea and claim that you had the idea up to a year earlier, which means that if one person publishes his idea for an invention without patenting it, someone else can patent it up to a year later and then legally claim to have invented it first. Also, there is no fixed expiration date on a patent (or a copyright); Congress can extend someone's patent or copyright years after it has been granted, and even grant it back to its former owner after it has already expired.

A proper patent system, by the way, grants ownership, not monopolies. When you own a concept you own only that one concept, the one you defined on your patent application, and that one has to be something that never existed before your patent. People are still free to use pre-existing alternatives to your patent, as they did before -- or invent new things that are a different concept entirely.

And you also shouldn't be able to patent the obvious. I think Amazon's one-click patent is an absurd example of an obvious patent.

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Parts of your argument seem akin to the anarchist's argument.

Well maybe I am an anarchist in disguise as a rational egoist...

The exercise of a person's rights is subject to objective law. For example, citizens are required to delegate their right to self-defense to the government. For example, people are required not to copy others' patented applications of ideas, even if they came up with that same application of the same idea on their own. This is necessary for effective, fair, and objective justice. Without it, the courts would be impotent to protect intellectual property.
So you ignore that I don’t think you can claim an idea? Your argument is that if patents are not recognized then they can’t be enforced... it is a floating argument and doesn’t scratch what I said at all.

If you have a girlfriend, you still have her even if someone else has her. This is true of very many non-material values. The objection that such a value is not material is silly. Intellectual property, like many non-material values, can be stolen.

You want to discuss the value of my girlfriend? My girlfriend has volition, she chooses to be with me - ideas don’t float around and choose who to be with. You can only ‘steal’ my girlfriend figuratively, in truth she was never my property to be stolen (obviously my right to her life would go against her right her own life, aka: no slave no way). That being said... I might share my text book with you, but there is no way in hell I’m sharing my girlfriend with you.

Patents are the means of protecting rights to intellectual property. Without patents, the only means is secrecy, invisibility, a wall of silence - or force. Neither makes it possible for men to think as their means of existence. As an example, the Wright brothers would have refused to invent the airplane if they could not protect their invention. As it was, while they were waiting for their patents to be approved, they were very cautious about even letting other people see the Flyer fly, lest those others get too close a look and build their own. The Wrights had to get their secrecy right every time; the imitators only had to get their espionage right once. Patents are necessary on principle.

Ridiculousness... I don’t have one patent, am I not thinking in order to survive? The Wright brothers tried to get a patent because that was the system they were in. Once again that does not validate the right to an idea in the first place. Were patents the reason the Wright brothers built a plane? Did you ever consider if someone else got their idea and patented it first they would have been unable to continue? I’d protect my ideas like hell to if it was a question of them being mine or someone else’s.

I'm curious though.. Since you seem to like the Wright brothers so much, what was their reason for building a plane? It doesn’t seem like they could have made much money off of something that could only go two hundred yards. Were they in it to make money or where they just driven to make their dreams a reality?

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When did patents and copyright laws start and is there any proof that they are more practicle than not having them?

Ws there an explosion of innovation when they were implemented?

Good question. This is a link to the first web page I found of the history of the United States Patent Office. It seemed like a good enough source so I didn’t look for any others.

http://www.m-cam.com/~watsonj/usptohistory.html

I don’t think it really proves anything but its food for thought.

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So you ignore that I don’t think you can claim an idea?  Your argument is that if patents are not recognized then they can’t be enforced... it is a floating argument and doesn’t scratch what I said at all.

Look at reality. Observe what are the requirements of human survival and how people propose to ensure them. This isn't a thing you need to derive.

You want to discuss the value of my girlfriend?  My girlfriend has volition, she chooses to be with me - ideas don’t float around and choose who to be with.  You can only ‘steal’ my girlfriend figuratively, in truth she was never my property to be stolen (obviously my right to her life would go against her right her own life, aka: no slave no way).  That being said... I might share my text book with you, but there is no way in hell I’m sharing my girlfriend with you.

Values can be taken from you without any physical thing being removed from the premises.

Ridiculousness... I don’t have one patent, am I not thinking in order to survive?  The Wright brothers tried to get a patent because that was the system they were in.  Once again that does not validate the right to an idea in the first place.  Were patents the reason the Wright brothers built a plane?  Did you ever consider if someone else got their idea and patented it first they would have been unable to continue?  I’d protect my ideas like hell to if it was a question of them being mine or someone else’s.

You may not have selected for your means of survival such things as need to be patented.

The protection of intellectual property was ineed a necessary condition for the Wright brothers to invent their Flyer. They invented it for the purpose of trading it, eg to the military. Otherwise, there would have been no purpose to inventing it. Do you think they would really have enjoyed the challenge of learning to fly, without having had anything to eat in three days? That's what would have happened to them if they invented the airplane without a purpose and without the possibility of a patent.

"Unwilling to unveil their technology without the protection of a patent and a contract for the sale of airplanes, the Wright brothers did not make public flights until 1908, at which point they emerged as the first great international heroes of the century." (source)

I'm curious though.. Since you seem to like the Wright brothers so much, what was their reason for building a plane?  It doesn’t seem like they could have made much money off of something that could only go two hundred yards.  Were they in it to make money or where they just driven to make their dreams a reality?

There were prizes, fame, and hundred-thousand dollar contracts to be had.

I brought up the Wright brothers because it was the first thing to come to mind. (There is an essay on them in some issue of TIA from this year.)

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So why not eliminate patents completely? Well, the practical reason we have patents is so that new concepts which cost money to invent can be invented. If there were no way for an inventor to recoup his investment, he would not invent, or if he did anyway, the market would punish him for doing so.

It was hard to limit myself to responding only to this one paragraph of your post because I agree with very little of what you said... but in response to this paragraph I would like to quote something I said earlier...

In my opinion the advocates of intellectual property rights think that invention and innovation are made practical by law...

That is EXACTLY what you are doing. But you rather unsmooth jumped in this... so I’m not proving anything to anyone that fundamentality disagrees with me. Right now though you are doing a better job supporting me then the people you agree with. And what is this with the market punishing him? Now not only don’t you get a safe state run monopoly on your idea but the unbridled capitalist system tramples you... my, my, my...

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Look at reality. Observe what are the requirements of human survival and how people propose to ensure them. This isn't a thing you need to derive.

You think some people need a right to a state run monopoly of their ideas to survive, I don’t. If you took away property rights we would have anarchy, if you dissolved intellectual property rights not much would happen.

Values can be taken from you without any physical thing being removed from the premises.
Who are you arguing with? I don’t see how this relates to what I am saying.

You may not have selected for your means of survival such things as need to be patented.

If I was working for a corporation I don’t think I would need patents to survive. If I was working in my basement I still think that I could find a way to sell my ideas to corporations or other people. No one needs patents to survive, they are granted by the government to encourage innovation; a legal monopoly of an idea does seem like an attractive reason to patent something, result is the largest record of useless inventions.

The protection of intellectual property was ineed a necessary condition for the Wright brothers to invent their Flyer. They invented it for the purpose of trading it, eg to the military. Otherwise, there would have been no purpose to inventing it. Do you think they would really have enjoyed the challenge of learning to fly, without having had anything to eat in three days? That's what would have happened to them if they invented the airplane without a purpose and without the possibility of a patent.

"Unwilling to unveil their technology without the protection of a patent and a contract for the sale of airplanes, the Wright brothers did not make public flights until 1908, at which point they emerged as the first great international heroes of the century." (source)

There were prizes, fame, and hundred-thousand dollar contracts to be had.

I brought up the Wright brothers because it was the first thing to come to mind. (There is an essay on them in some issue of TIA from this year.)

I like the Wright brothers too, but I do not know much about them. As I said there were patents in their time, getting one was the right thing for them to do. I think they could have won the prizes and fame and hundred-thousand dollar contracts (that is a lot of money back in the day) without patents however (in a system with no patents). Anyways this isn’t a way for me to prove anything because I can’t accurately say what the world would have been like for the Wright brothers or today without patents; however overall I think it would be very much the same.

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When did patents and copyright laws start and is there any proof that they are more practicle than not having them?

Ws there an explosion of innovation when they were implemented?

U.S. Constitution, Article I, Section 8.

How about the largest explosion of innovation, technology and standard of living the world has ever seen.

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