Why should there be patents and copyrights?

[Mnrchst 2]

are you going to continue to bring people into this when it has been demonstrated, repeatedly, how that does not apply to the argument?

Would it help you to build a house, buy a car, etc. etc. if you were allowed to sell people with protections against theft? I'm using reductio ad absurdum in order to move the debate along quickly. My point is simply that just because you can benefit from owning something (in terms of buying stuff anyway) doesn't mean you should be able to own it.

Edited July 29, 2011 by Mnrchst

[RationalBiker 39]

Would it help you to build a house, buy a car, etc. etc. if you were allowed to sell people with protections against theft? I'm using reductio ad absurdum in order to move the debate along quickly. My point is simply that just because you can benefit from owning something (in terms of buying stuff anyway) doesn't mean you should be able to own it.

I'll take it that you intend to keep bring that up. Have a nice life... unless you steal artist's work in which case I hope you get caught an punished.

[Mnrchst 2]

I think you need to re-read the argument; it's not just about mere survival.

In the "patents and copyrights" essay she doesn't talk about survival or her theory of art, so we're (I guess) supposed to piece it all together from her other stuff. From "Man's Rights" she said "Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life." If this is supposed to mean "Man must have the right to a monopoly on the values they produce (possibly for a limited time depending on the type) in order to sustain his life", I don't see how that's true, because no one could survive if everyone tried to make songs and no one tried to make food. I suppose you could say "The guy making the food likes the song, so the food guy and the artist exchange values", but the food guy could still have the music if there were no copyright (indeed, it would be easier to get). I suppose you could say "If there were no copyrights, then artists would shrug, and then you've got no new music, and life is no longer worth living for the food guy", but this would be a utilitarian argument.

RationalBiker said: "Neither patents nor copyrights make "all values" property", in response to my saying "But why should all values be property?". If you agree that not all values should be property, where do we draw the line, and why?

Do either/both you guys think all values (totally, as in where their thoughts constitute 100%) created by people should be property (and therefore the values not made 100% by them, such as people, don't count)? Then what about an asteroid that falls onto my land? It's not something I made from my thoughts. Is it still a product of my effort because I got the land itself from my effort and, therefore, I deserve it because it's my land? I don't see why--the land itself has nothing to do with the asteroid falling there. Oil under my land I think counts because it's a part of the property I bought--the asteroid wasn't.

Also, if I create a totally new phrase, should that be copyrighted? What about fashion designs. I know I've mentioned these before, but I'm curious about your opinions on them--it would help me understand your case better.

It is about a flourishing life, the best possible to man, a life of man qua man. We discover what political system is proper to man by looking at the requirements for individual men to live fully and flourish, not simply what they may conceivably need to survive the next five minutes.

This is where it gets tricky. (1) what constitutes a flourishing life, and why should a government work to guarantee people have it as opposed to just protecting them from harm to their bodies/physical property? (2) Assuming we decide the government must work to have us have a "flourishing life", it seems that in order for copyrights to be legit, we must also explain why we need art to have a flourishing life (I suppose this is probably easier to explain than #1, but it would have to meet the "flourishing life" criteria, as opposed to "pretty good" life).

Also, if we're supposed to have a "flourishing" life, and it were possible for the government to completely eliminate any heroin sales within the country, should it do it? Wouldn't people have "better" lives if they couldn't take heroin?

[Mnrchst 2]

Have a nice life...

How is my point not legitimate? If the answer is "You don't benefit from selling a person because it's anti-selfishness, but you do if you sell a song because it deserves to be property" then you're begging the question--we're trying to establish what is and isn't property.

Edited July 29, 2011 by Mnrchst

[DonAthos 303]

This is, in fact, exactly why patents are necessary. When you patent an idea, or copyright a book, or trademark a logo, what you're doing is obtaining recognition from Government (or in the case of Copyrights, where registration is optional, at least publicly declaring) that you are claiming your right to be the sole owner of that intellectual concept. This is why inventions have patent numbers, logos have ® symbols and books/music/software has © symbols - because it's a clear, public, recognized declaration that you are reserving your rights.

I agree with you that this is how we've organized our recognition and protection of intellectual property. But what you've described doesn't help me to understand that we are right to recognize and protect it in the first place.

If intellectual property is indeed a right, then it isn't the granting of an governmental patent which makes a man the owner of his invention. Rather, it is his having invented the thing which makes his claim to a patent legitimate. In other words, if intellectual property is a right, then a man shouldn't have to apply to any particular government for a patent for his invention in order to claim it as his, and justly so. Nor should the inventor have to make any "clear, public, recognized declaration." Simply in inventing the automatic salt shaker, the inventor owns the idea of it. The governmental stamp of approval is just, but not necessary for us to understand that the salt shaker is his.

Put another way, if I build a car from scrap, and later on the government chooses to issue me a title/deed in recognition of my ownership, that's all well and good. But I don't own the car on account of the title; I'm awarded the title on account of my ownership. Rights such as we're discussing exist outside of particular governmental recognition and law.

Inventor didn't in your example actually specify to Patent-Breaker that the salt shaker was not to be copied - so he shared his idea without protecting his rights - thus he gave the idea away.

I'm not sure I follow. How did he "give the idea away"?

We're claiming that there's such a thing as intellectual property, which is supposed to be man's right on the same order as life, liberty, and etc. The violation of such a right, as demonstrated in my posts with reference to Rand's writings, is the initiation of the use of force. In copying the salt shaker, Patent Breaker is initiating a use of force against Inventor.

Are you saying that Inventor has to specifically request Patent Breaker not to use force against him? And that, should he fail to make this request, Patent Breaker has carte blanche? If I own a car, must I tell you not to drive it away (and thus steal it) to "protect my rights"? And if I don't say as much, would it cease being wrong for you to do it?

If Inventor owns this automatic salt shaker -- owns the very idea of it -- then Patent Breaker has no right to copy it without Inventor's express consent/without having traded with Inventor at mutually satisfactory terms.

But if I DID make P-B aware that he was retaining his right, then P-B should have been made to agree not to copy it BEFORE he saw it, thus I would be claiming his right clearly.

Well, if Patent Breaker agreed not to make a copy of the salt shaker as a condition of accepting Inventor's dinner invitation, then Patent Breaker ought be held to his agreement. This becomes, in essence, a contract we're discussing. But there's nothing about such a contract that implies that there's any "right" being retained, beyond the specific terms of the agreement they've reached.

Patents, copyrights, trademarks, etc are simply official recognition that you've claimed ownership of a concept which has a traceable ownership and which *is* a product, not just a concept, and that you're unwilling to sell that thing to anyone w/o their agreement not to reproduce it. It's a shortcut, nothing more, just like recording a deed or a marriage license, only with a bit more paperwork to ensure nobody else actually claimed it first.

It's fine to stipulate as you sell products that a condition of the sale is that the purchaser would not reproduce such a thing. But this is, again, a form of a contractual agreement, and not the same thing as intellectual property rights. Per intellectual property as it is enforced (at least, so far as I understand), if I owned a liquor store and wanted to advertise my products in January for upcoming Super Bowl parties, I wouldn't be allowed to say "Super Bowl" in my ads. This is not because I've come to some contractual understanding with those who've coined the term. It's a unilateral fiat predicated on some idea of "owning" the term.

There is an absolute difference between people making individual agreements not to copy items, or utter phrases, or what-have-you, in exchange for that which they seek to gain -- that is, voluntary trade -- versus the enforcement of intellectual property such as I had believed was the subject of this thread.

My standpoint is this: given intellectual property, Inventor does not need to tell Patent Breaker not to copy his salt shaker. The idea of the salt shaker belongs to Inventor just as much as the physical salt shaker does, simply on account of having produced it initially. Governmental recognition of Inventor's invention, whether through patents in City Hall, or cutesy symbols, or anything else, is particular and utterly besides the point. Patent Breaker has no right to make his own salt shaker.

And if he does make the salt shaker, then Inventor should be justified in responding with force.

It wouldn't be the inventor, but a cop.

Well, it might be a cop... but it might also be Inventor. When I constructed my example, I'd mentioned that it was "set" in some sort of frontier-ish society. To highlight the emotional qualms I have with intellectual property, I wanted Inventor to have to assert and defend his rights himself.

Make no mistake: I am prepared to defend what is mine, and my rights. Should you try to steal my car, I won't simply call a cop; if able (and I deem it otherwise "safe" to do so), I'll use physical force against you to prevent the theft. If you break into my home, I will shoot you. If you threaten my life or liberty, I will give you cause to regret it, if it is in my power to do so.

We appeal to government because it's a smarter and safer way to defend our rights than via individual physical self-defense, but we do not thereby surrender the right to defend ourselves. And there are surely times and places where a man must still defend himself, even if he'd otherwise wish to deputize another.

In my example, either Inventor himself prevents Patent Breaker from reproducing his automatic salt shaker... or Patent Breaker's initiation of force against Inventor goes without response. I'd act to defend my rights, and I expect Inventor to do the same.

So why does it seem so wrong to have Inventor burst into Patent Breaker's home to take away the salt shaker that Patent Breaker has built...?

Also, you can just as easily say that it's a property right violation when you take my saw from me when I try to cut down a tree on your land. If a patented idea=property, it doesn't matter if someone uses force to protect it. The relevant issue is what should and should not be property.

When have I said otherwise? It is precisely that issue that I'm dying to hash out... but those paragraphs in my posts have yet to inspire much subsequent discussion...

In my posts, I've tried -- and thus far failed -- to find the link between a general theory of rights and intellectual property rights. To demonstrate that it is right for Inventor to use force to prevent Patent Breaker from building the salt shaker, we must show how such an action is "required by [inventor's nature as a rational being] for the support, the furtherance, the fulfillment and the enjoyment of his own life." And so I'll ask again: how is Inventor's life better supported, furthered, fulfilled, or enjoyed, by using force to prevent Patent Breaker from building his own automatic salt shaker? How does he accomplish anything at all (other than forcing Patent Breaker to salt his meat the boring, old-fashioned way)? If Patent Breaker's construction of the salt shaker is a violation of Inventor's rights, then by definition it is an initiation of the use of force. But how can Patent Breaker be using force against Inventor in building an object, though in his own home, and of his own materials, and through the integrations of his own mind, and through the labor of his own hands, and without Inventor ever knowing that such had been done...? Where is the damage to Inventor? Or is it possible to initiate the use of force against a man... and not damage him?

As a paraphrase (and perhaps a poor one, and if so, mea culpa), this is what I've heard in response to this "relevant issue": that technology is important; that rational people wish to trade; that it is important to be able to plan ahead in one's life; that men should be entitled to the fruits of their labor (excepting thieves... which, while true, cannot help us here apart from question begging). All of which is beyond dispute, but none of which establishes that Patent Breaker has no right to build this salt shaker, or that Inventor has any right to try to prevent Patent Breaker from doing it.

If it's his property, he can have whatever reason he wants to stop someone from using it. If it isn't, it doesn't matter what he thinks about its use.

I fear you misunderstand me. I'm not really asking about Inventor's motivations; I'm asking how does it further Inventor's life to stop Patent Breaker from doing this, in reality (with or without Inventor's knowledge of the fact). I'm not asking "what damage does Inventor fear," but what actual, real damage is done?

I contend that, given intellectual property rights, then their violation must result in some sort of damage which we can identify. That Inventor's life must be furthered in some actual way by preventing Patent Breaker from building the salt shaker.

It doesn't matter whether Inventor knows, or cares, about the answers to these questions. But I need to know the answers so that I can properly assess whether intellectual property are properly rights.

You can just as easily say "What damage does the homeless person do to the property owner by living in a forest on a large plot owned by the property owner?" In a sense, nothing, but it doesn't matter, because it's his property.

Hmm... honestly? I'd say that the homeless person removes from the property owner the freedom to utilize and/or dispose of his property when and how he sees fit. For instance, the property owner could elect to set his own camp at precisely the spot that the homeless person occupies on a given day. Thus, the damage would manifest as the hassle that the property owner would incur in having to find a different spot, or have the homeless person escorted off the premises. (Though the damage is already present in curtailing or affecting those options initially, whether the property owner is aware of it or not.) Further, there might be safety concerns in having uninvited and unwanted persons on your property, and etc. Put simply, the property owner in your example shouldn't have to deal with the homeless person, or be affected by him in any way with respect to his property. In having to deal with him, damage is done.

Now could you please indicate any possible damage that Patent Breaker would do to Inventor by building an automatic salt shaker?

This is like asking why someone should own something when someone else could use it to create more value.

With apologies, but I'm really not sure I understand what you're saying here.

What I'm saying -- what you've quoted -- is an initial rhetorical challenge (though not the substance of my argument) to the notion that it is Inventor's (mental) labor which ultimately produces the salt shaker which Patent Breaker builds. In contrast, I'm advancing an argument that Patent Breaker's salt shaker is the result of Patent Breaker's labor, both mental and physical.

He doesn't--he owns the idea.

Well... this is obviously the point of contention, isn't it?

But besides, if we can recognize Patent Breaker's salt shaker being the fruit of his own physical and mental labor, just as Inventor's salt shaker is the fruit of his physical and mental labor, then what are we left with, to grant Inventor the deed to the "idea" of salt shakers and simultaneously pronounce Patent Breaker a thief? That Inventor "thought of it first"?

So what?

This might not be a relevant example by anyone's reckoning, but it keeps coming to my mind as I participate in this thread, and so I'm a-gonna share it:

In Junior High, there was this kid who sat in front of me in English class -- John. One day, I noticed John reading Jurassic Park (which was not yet the famous novel it would become). I thought it looked neat with dinosaur bones and all, and so I investigated the novel on my own. Eventually, I decided to read it, too.

Well! When the kids at school caught wind that I was now reading Jurassic Park, do you know what they did? They called me a copycat! Needless to say, save an interest in full disclosure, I was devastated. I'd lost the respect of my peers, because... because...

...?

Because I chose to read a book after seeing someone else read it.

What sense does that make? Did John somehow "own" the right to read Jurassic Park? Did the source of my inspiration take anything away from my own mental or physical efforts in reading the novel? Did I violate John in any way, shape or form? Should he have taken any measures to prevent me from reading the book?

And in the case of the salt shaker, in perhaps an ill-advised attempt to tie this anecdote back to the topic-at-hand, I must ask: we're accusing Patent Breaker of violating Inventor's rights, because...

Because he chose to build an automatic salt shaker after seeing that someone else had built one...?

What sense does this make?

***

All right -- done with my vacation, and now a move in front of me. See everyone in a couple of weeks, and thanks for the discussion so far! I really look forward to its continuation.

[Grames 332]

Basically, my design isn't your design because I had never heard of your design and I came up with mine myself. Since my design isn't your design (there is no connection between us) I too should get a patent, to prevent anyone else from using my design without my permission (of course they could use yours, so if our designs are "identical" in the sense relevant to a patent, then they'd need permission from one of us).

I understand it is intellectual property, my point is that if my idea didn't come from you in any way, then I can't be infringing on any conception of property (I can't take anything from you or infringe on anything you have unless I have some sort of connection to you). An idea originates in someone's mind. If I have an idea for an invention, and I didn't get it from someone else (or the creation of someone else, say a book or tv show or journal, what have you), then my idea is my own and I should have a right to the value that comes as a result of my idea. If someone else comes up with something similar, and again didn't get their idea from anyone else or anything created by anyone else, then they too should have the right to the value that comes as a result of their idea. It is their idea, it originated in their mind, not mine, and so I don't have any say over and they can't possibly be said to be stealing my idea.

We in the US have (or is it had? has the reform gone through?) a first to invent system. So we admit that it is possible to invent something independently before someone else and prove that one had done so, the proof even being offered after the granting of the patent. So we do have some acknowledgement of the possibility of independent inventors already. But what I want to consider is the principle at the heart of this: Does a truly independent inventor deserve a property right in his invention? I don't care if the standard of proof for this is that he has to be on timestamped video camera wit sound 24 hours a day from before the publication of the patent until whenever he invented the thing (including, perhaps, a camera strapped to his head to ensure that we can see everything he is looking up on his computer, etc.). Even if it is ridiculously high, so high that perhaps no one has ever met it before in history, that is not the point. The point is that at least in principle there would be such a standard of proof so we could know beyond a reasonable doubt that the man invented the creation independently (I think my video-camera all day, every day should come close, right?). And so, provided that one can reach this possibly virtually impossibly high standard of proof, should the independent inventor be able to get a patent on his invention? This is really the only question. You can say that no one would be able to meet the necessary standard of proof, or that certainly no one ever has. That doesn't matter. If someone ever did (say in the future, with an implant in their eyes which records everything they ever see, and everything they ever hear, and sends it off to a remote server), should they be able to get a patent? My disagreement with the standard (or official? Not sure) Objectivist position on IP is just this point: a provably independent inventor should be able to get a patent, whereas the standard Objectivist position is that they should not (note the "provably" in that statement, again the hurdly required for proof could be absurdly high, I don't care about that).

That is the only question I would like answered, and we can turn to the question of just how high the bar should be after we've settled the question of principle--if one can prove they are an independent inventor, should one be able to get a patent on their invention? (Sorry if that was repetitive, but I wanted to make it absolutely clear what I'm talking about, and what I would like to see an answer to, so we can move the discussion forward).

I am going to characterize the logic behind your words as a "causation theory" of intellectual property. That theory is that an independent inventor should have equal right to the product of his effort because he is the cause of it, the same reason justifying the first inventor's claim. In this theory the same cause should lead to the same effect for both inventors, and it should not matter which is first. I allege there are defects this theory would cause if placed into practice.

If the first inventor had no exclusive right over the invention, then neither can the second inventor. While the first inventor's temporary monopoly by patent may possibly be diminished in value by an independent inventor if such a person exists, the second inventor's patent is guaranteed to be second and never a monopoly at all. And there could be a third and a fourth inventor as well, and when dozens of inventors turn their minds to the same problem dozens may well come up with the same solution and neither can they be denied the fruits of their labors. But at this point, one has to wonder what is the point of the patent system at all if there can be no limit to the number of inventors allowed to patent a single invention? The value of the patent as property is entirely in its right to exclude others, and vanishes entirely without that right. And if they were all patents for the same invention, then the first patent to expire would dominate all the rest anyway (and so we see it does matter that one is first.) So not only do the later patents diminish the value of the original by eliminating the right to exclude, the original's expiration limits the term and thus the value of the subsequent patents. This is a bad deal all around for the inventors, all of the inventors.

And it matters a great deal what the value of an invention is speculated to be, because that is the basis for investors' and managers' decision to develop a line of business further. A patent system that did not deliver an actual property right including a right to exclude would diminish an inventor's ability to make use of his invention by discouraging investment. This is contrary to the whole point of recognizing a property right in the first place, which is to enable one to make use of the property to realize its full value however large or small that may be.

The existence of multiple patents makes it difficult to sue for infringements by non-inventors. Whoever might initiate such a lawsuit, there may be another inventor to come to the rescue with a permission to operate deriving from another patent at a lower price than demanded by the inventor bringing suit. If infringement is not systematically discouraged then there will be more of it because it is always more profitable to not pay a licensing fee than to pay it. Again the actual inventors are the losers.

The principle of taking into account the source and cause of an invention can lead to contradictions in applying the law. If one man can claim he is exempt from the patent's grant of a right to exclude because he did not derive his implementation of the invention from the original inventor, then what will bar another man from importing the invention from abroad and claiming it did not derive from the original inventor, or what if there is an actual and valid different inventor recognized by a different country? A foreign supply is beyond the reach of the domestic legal system's (referring here to the civil court system and the pre-trial discovery process) ability to even investigate thoroughly.

The combination of faults I identified renders pointless any patent system that recognizes the source as a relevant exemption.

The only way to protect patents domestically from both legitimate and illegitimate foreign sources is to restrict the proper object of patent law and patents themselves to the inventions, not the manner in which they are invented. The patent applies to what is claimed in the patent which plays the role of an objective and complete definition to the invention as an open-ended concept. In epistemological terms, the origin is strictly a non-essential and it would be a mistake to classify or not classify an object as an instance of a concept on the basis of a non-essential. If origin is non-essential then it is non-essential for everyone (this is legal implementation of objectivity meaning there can be no such thing as a personal legal context), including domestic independent inventors.

U.S. patent law is written in absolute terms: "A person shall be entitled to a patent ..." (Title 35 U.S. Code of Laws, Para 102) so long as it is actually an invention which means novel, non-obvious and of patentable subject matter. There is no investigation that the inventor actually invented it, no examining laboratory notes or auditing tax returns or receipts. Even the Patent Office qua legal entity does not care where the invention came from. (Fraud about the inventor can break a patent but that gets settled in a court and only after the patent already exists. The first to invent rule is limited to resolving priority disputes. See more here THE END OF THE FIRST-TO-INVENT RULE: A CONCISE HISTORY OF ITS ORIGIN .pdf I am in favor of keeping the first to invent rule.)

[Mnrchst 2]

what actual, real damage is done?

You're begging the question--damage is being done if property is being violated, so you need to come up with a theory of property.

That Inventor's life must be furthered in some actual way by preventing Patent Breaker from building the salt shaker.

"Furthered"? I'm not sure what you mean by that, but if I understand you, I think your assertion is ridiculous. How is someone's life "furthered" if they burn their house down? Who cares? It's their house. If certain ideas are property, then you have the right to determine their use as long as they are. You need a theory of property.

Edited July 30, 2011 by Mnrchst

[nanite1018 10]

If the first inventor had no exclusive right over the invention, then neither can the second inventor. While the first inventor's temporary monopoly by patent may possibly be diminished in value by an independent inventor if such a person exists, the second inventor's patent is guaranteed to be second and never a monopoly at all. And there could be a third and a fourth inventor as well, and when dozens of inventors turn their minds to the same problem dozens may well come up with the same solution and neither can they be denied the fruits of their labors. But at this point, one has to wonder what is the point of the patent system at all if there can be no limit to the number of inventors allowed to patent a single invention? The value of the patent as property is entirely in its right to exclude others, and vanishes entirely without that right. And if they were all patents for the same invention, then the first patent to expire would dominate all the rest anyway (and so we see it does matter that one is first.) So not only do the later patents diminish the value of the original by eliminating the right to exclude, the original's expiration limits the term and thus the value of the subsequent patents. This is a bad deal all around for the inventors, all of the inventors.

Each inventor has a monopoly on their idea, i.e. what they created. It just so happens that there are other people who have similar "products". This seems very similar to me as easily substituted products like butter and margarine, or different brands of paint or milk or salt. There isn't really much of a difference between them, which makes it difficult for any one business interest in the market to gain a significant share or affect the market as a whole in a major way (the old "perfect competition" case in neo-classical and Keynesian economics). Each person always has a right to charge whatever they like for what they produce, but they won't make any money if they aren't competitive with the other producers. This does not mean that the "causation theory" of property is self-contradictory because late-comers cannot even in principle have the same effects from their act of invention as the original inventor. It produces the same legal consequences, it is just that there are other very very easily substituted "products" out there with which the inventors would need to compete (again, no different in principle than producers of salt or the like).

And you are correct that once the original expires the later inventors won't be able to compete any longer as everyone will be able to use the first inventor's idea without need for permission (and so no infringement case brought by any of them could result in a conviction). I don't see how this is a bad deal for the later inventors, however. At least they were able to get some value from their invention in the interim period.

And your concern that there will be dozens of inventors is unrealistic. You yourself had claimed that the burden of proof would be virtually impossible to achieve anyway, or at least very stringent, so before the expiration of the first patent (which would render any subsequent patents ineffective due to the high substitutability of the inventions/designs), the number of inventors would likely be quite low in virtually all cases (usually only one or two I would imagine).

And it matters a great deal what the value of an invention is speculated to be, because that is the basis for investors' and managers' decision to develop a line of business further. A patent system that did not deliver an actual property right including a right to exclude would diminish an inventor's ability to make use of his invention by discouraging investment. This is contrary to the whole point of recognizing a property right in the first place, which is to enable one to make use of the property to realize its full value however large or small that may be.

This is a demand for certainty where none exists. No one can know, for example, what amount of oil there is beneath a piece of land before buying it, or what future demand for oil will be, etc. The value of the property changes drastically with time, with the ups and downs of the market. There is necessarily uncertainty in all business decisions, and so to say "but this would increase uncertainty" is not an argument for excluding independent inventors. Yes, property rights do secure the capacity to engage in trade and to not have your life destroyed by depriving you of all values you create. But property rights do not guarantee that you will be able to engage in a trade at all (i.e. that you will find willing partners) or that it will be at terms you would prefer. Allowing provably independent inventors to acquire patents is, again, akin to allowing competitors in the production of virtually identical products (like salt companies). Someone new might appear at any time, which introduces uncertainty in your decisions, but it does not deprive you from being able to engage in trades, or from offering your invention for people to use at competitive terms. And again, the uncertainty here would be relatively small as proving independent creation would be very difficult (and I believe you think patents should be ~20 years or so if I remember right, and a legal battle proving independent invention could last easily half that time).

The existence of multiple patents makes it difficult to sue for infringements by non-inventors. Whoever might initiate such a lawsuit, there may be another inventor to come to the rescue with a permission to operate deriving from another patent at a lower price than demanded by the inventor bringing suit. If infringement is not systematically discouraged then there will be more of it because it is always more profitable to not pay a licensing fee than to pay it. Again the actual inventors are the losers.

If I understand you correctly, you are arguing that because there are more inventors who will have to compete with each other on price, more people would be willing to infringe because there is a larger chance they will be "forgiven" by one of the inventors? If so, one must also recognize that there are more people who could bring suit, so that would at least partially offset the loss. Regardless, I don't know why the possibility of a rise in infringement or theft should be an argument against a certain system of property rights. And again, due to the time limit on patents and the high bar to prove independent creation, there would almost certainly never be more than a few inventors in total, which mitigates this.

The principle of taking into account the source and cause of an invention can lead to contradictions in applying the law. If one man can claim he is exempt from the patent's grant of a right to exclude because he did not derive his implementation of the invention from the original inventor, then what will bar another man from importing the invention from abroad and claiming it did not derive from the original inventor, or what if there is an actual and valid different inventor recognized by a different country? A foreign supply is beyond the reach of the domestic legal system's (referring here to the civil court system and the pre-trial discovery process) ability to even investigate thoroughly.

Well, if it can't be proven to whatever standard is believed necessary, then it is a non-issue. It would be up to the supposed independent inventor to prove that they are indeed an independent inventor. Your objection here is mostly dealt with by that fact: the burden of proof would necessarily be on the man claiming to have invented independently, so the person with the patent in the foreign country would have to prove they invented it independently in order to be able to sell in the US. If they can, they are no different than a US inventor. If they can't, they aren't allowed to sell and would be considered guilty of patent infringement if they tried to sell in the US.

The combination of faults I identified renders pointless any patent system that recognizes the source as a relevant exemption. The only way to protect patents domestically from both legitimate and illegitimate foreign sources is to restrict the proper object of patent law and patents themselves to the inventions, not the manner in which they are invented. The patent applies to what is claimed in the patent which plays the role of an objective and complete definition to the invention as an open-ended concept. In epistemological terms, the origin is strictly a non-essential and it would be a mistake to classify or not classify an object as an instance of a concept on the basis of a non-essential. If origin is non-essential then it is non-essential for everyone (this is legal implementation of objectivity meaning there can be no such thing as a personal legal context), including domestic independent inventors.

As I pointed out above, since the burden of proof is on the man claiming to have invented independently, foreign inventors pose no problem whatsoever for such a system. And for the same reason (since it would be fairly difficult to prove independence combined with time limits on patents) the number of inventors would be fairly small, oftentimes only one or perhaps a few. This mitigates most of your other objections.

I always understood the Objectivist defense of private property rights to be a causal one--the individual created the value and deserves to reap the rewards. In fact, it is only in intellectual property where anyone would propose a non-causal basis. In physical property, you have to have actually used the property to lay claim to it, you can't do it by decree. But in patents you propose that you should be able to file a patent even if you didn't invent something, and then force the actual inventor to go through a lengthy trial process to prove that he is the one who actually created the thing. This is like saying I get to get a land title by fiat decree, and then the man who is actually tilling the land can dispute my claim in court. That would be a nonsensical way of going about things. You need to prove you've used a piece of property before you can lay claim to it, and so too should you have to prove you invented something to be able to get a patent on it. A causal connection between the property owner and the property is necessary for all property, including intellectual property. And since the basis of all property is a causal connection between the creator of values and the values created, then independent inventors (who caused the creation of an idea and are in part responsible for some of the value people are then getting from the idea) should be able to have their work respected with the granting of a patent.

I have saved the article in my Google Docs to review later, looks interesting but I don't have time right now.

[DonAthos 303]

You're begging the question--damage is being done if property is being violated, so you need to come up with a theory of property.

I'll agree that I've been question begging or otherwise circular at times in this thread... (as, frankly, I think we all have; no one has yet offered any conclusive demonstration of why intellectual property is a right or is not one that hasn't come down to a restatement of "it's a right" or "it's not.")

But here?

I don't believe I'm begging any question, which is an an argument which assumes the truth of its conclusion; I'm asking one. And it's an important question that I'd like you (or anyone else) to answer honestly. I'm asking about the damage done to a man when his "intellectual property rights" are violated, and specifically in the scenario I've offered. If you're saying that "he is damaged because his rights are violated," then we may have a fundamental disagreement on the nature of rights. Allow me to explain.

"Rights" such as I'm interested in are not arbitrary creations, but reasonable assessments on what it is right for men to do according to their nature, in reality, in order that they may further (yes, "further"; see below) their survival. "Liberty" isn't a right "just 'cause." It is a right because men need liberty to survive. To flourish. This is true, too, of property and the pursuit of happiness. An assault on a man's rights, therefore, isn't simply some harmless political redefinition, it is an outright attack on man's very ability to survive. That is, it is an attack on man's life.

If someone tried to cut off your pinky finger, it would be an outrage. You would act to prevent it. If someone tried to steal your car, the same. And if someone tried to imprison you unjustly, again. This is the gravitas of rights, and what they mean to an individual's life. It's not a word game, but a question of your life and happiness. You can't suffer people to trample your rights, because to allow such without fighting back is to court very real death.

And this is the standard to which I'm holding "intellectual property." I want to see how Patent Breaker's flouting of Inventor's "intellectual property" is in fact an assault against Inventor's life. I don't see it. Yet. But this is the matter: if and when I see it, I will conclude that IP is valid... and if I ultimately determine that there is no such connection, I believe that I'll be forced to conclude that IP is not a proper right, but instead a violation of rights.

Maybe I mistake you -- feel free to clarify if it's the case -- but I feel as though you've been saying, "No, Patent Breaker doesn't do any 'damage' to Inventor by building the salt shaker. So what?! Inventor's rights are being violated, and that's damage enough!"

But if it's the case that Patent Breaker can build this salt shaker doing no actual harm to Inventor -- to his life -- and in so doing increase his (Patent Breaker's) own life...? Then how can I conclude anything but that Patent Breaker is right to build the salt shaker?

"Furthered"? I'm not sure what you mean by that, but if I understand you, I think your assertion is ridiculous. How is someone's life "furthered" if they burn their house down? Who cares? It's their house. If certain ideas are property, then you have the right to determine their use as long as they are. You need a theory of property.

As a minor note of order, how 'bout we agree not to call one another's arguments "ridiculous" or any similar insult, and instead proceed as though this were a polite and cordial conversation? I don't mean to tell others how to argue here, but I put a lot of thought and effort in my replies and I'd like that to be respected.

Otherwise, you're not understanding me. When I say that "Inventor's life must be furthered," I'm not talking about an application of his rights (as is your suggestion of him burning his own house down) but the defense of his rights, as such.

It is in our interest to defend our rights, because in defending them we defend our lives. Again, this isn't just an abstract word game, but I mean "our lives." In protecting your farm against those who would steal your crops, you're preserving the food that you need to eat to live. So I ask: what good does it do Inventor to prevent Patent Breaker from building a salt shaker? What benefit does the preservation of this "right" give to Inventor? How is his life furthered?

And as to my use of the word "furthered," I thought I'd established its pedigree in an earlier post.

Here, again, from Ayn Rand's "Man's Rights" (emphasis added):

A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self- sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action-which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life.

That's it. That's the theory under which I'm attempting to operate, and the standard I expect "intellectual property" to meet if it is to be regarded as a proper right. It must be "required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life." Inventor must seek to prevent Patent Breaker from building the salt shaker, or take action against Patent Breaker should Patent Breaker build it. Inventor is required by his nature to act in this manner, so that he may better support, further, fulfill, and enjoy his own life.

Or, if not, then "intellectual property" is no right of Inventor's, but an intrusion against Patent Breaker's proper rights.

Is this ridiculous of me?

[Grames 332]

And you are correct that once the original expires the later inventors won't be able to compete any longer as everyone will be able to use the first inventor's idea without need for permission (and so no infringement case brought by any of them could result in a conviction). I don't see how this is a bad deal for the later inventors, however. At least they were able to get some value from their invention in the interim period.

The inventors would be in a 'tragedy of the commons' situation created by a failure to define property rights. After all, a small share of a muddy and overgrazed pasture is better than being locked out entirely. (Except it turns out that is not the case).

And your concern that there will be dozens of inventors is unrealistic. You yourself had claimed that the burden of proof would be virtually impossible to achieve anyway,

I had to put aside the burden of proof issue entirely to get this far, and the point is in principle there is no other legal obstacle to dozens of patents to the same invention. If you declare a priori there is no such thing as intellectual property or that objectivity cannot apply to defining inventions or ideas (a strange notion for one interested in Objectivism) then by definition there cannot be conflicting claims because anyone's claims are as valid as anyone else's.

This is a demand for certainty where none exists. No one can know, for example, what amount of oil there is beneath a piece of land before buying it, or what future demand for oil will be, etc. The value of the property changes drastically with time,

Property rights need to be certain or they are not rights at all. Where there are no rights the value will certainly be diminished.

If I understand you correctly, you are arguing that because there are more inventors who will have to compete with each other on price, more people would be willing to infringe because there is a larger chance they will be "forgiven" by one of the inventors? If so, one must also recognize that there are more people who could bring suit, so that would at least partially offset the loss.

The situation is not symmetric. The new form of "patent troll" in this alternative system, even one, could render all infringement suits impossible. He just spams applications through the patent system and then auctions licenses with no need to do research at all, in fact a demonstrated ability to research would be bad for the validity of his patents.

Regardless, I don't know why the possibility of a rise in infringement or theft should be an argument against a certain system of property rights.

Unenforceable laws and rights are not really laws or rights at all.

Well, if it can't be proven to whatever standard is believed necessary, then it is a non-issue. It would be up to the supposed independent inventor to prove that they are indeed an independent inventor. Your objection here is mostly dealt with by that fact: the burden of proof would necessarily be on the man claiming to have invented independently, so the person with the patent in the foreign country would have to prove they invented it independently in order to be able to sell in the US. If they can, they are no different than a US inventor. If they can't, they aren't allowed to sell and would be considered guilty of patent infringement if they tried to sell in the US.

But the position of judges trying to apply logic to the situation is impossible. The basis of all infringement is a claim to a property right in an open-ended concept, any particular things found to be the same as what is claimed in an active valid covered by the patent. Unless under this alternative system there is an independent chain of causation, then the patent doesn't apply. Every infringement action becomes an inquiry into the invention of the infringing goods. Please remember now that the burden of proof in civil suits is on the plaintiff, here that would mean the inventor who thinks he has a patent being infringed upon. He has something to prove, he has to prove the chain of causation for the alleged infringing goods actually traces to him. It is impossible in principle to prove that if an earlier date of invention is not enough.

As I pointed out above, since the burden of proof is on the man claiming to have invented independently,

You could theoretically gin up such a procedure for granting patents, but in infringement suits defending the patent right the burden of proof is on the plaintiff. Unless you also want to invent a whole new civil law procedure just for patents? (Caution: There is a strong and generally applicable reason for the burden of proof being on the plaintiff.)

I always understood the Objectivist defense of private property rights to be a causal one--the individual created the value and deserves to reap the rewards.

It is still causal but applied to concepts. The question in infringement suits is "Is the alleged infringing good within the bounds of the patented claims?" It is an inquiry as to whether the set-element relationship exists. Necessarily then it is possible that particular valuable goods created by others fall within a patent's claims even though the inventor did not create them. That is what infringement is, what it means, what it refers to.

But in patents you propose that you should be able to file a patent even if you didn't invent something,

If an inventor can describe the invention in terms that meet the formal requirements then that is on its face (i.e. self-evident or prima facie) evidence that he did make the invention. In the absence of contrary evidence (i.e. prior art, fraud, etc..) it is conclusive evidence that will result in allowing the patent to issue because a patent is recognized as a right which the government (patent office) must acknowledge (the shall issue language in the patent law).

This is like saying I get to get a land title by fiat decree, and then the man who is actually tilling the land can dispute my claim in court. That would be a nonsensical way of going about things.

That is actually how it is done in land, and patents follow the same principle. The plaintiff has the burden of proof. (and see Adverse possession.)

You need to prove you've used a piece of property before you can lay claim to it, and so too should you have to prove you invented something to be able to get a patent on it. A causal connection between the property owner and the property is necessary for all property, including intellectual property.

Disclosing and claiming the invention is evidence of possession for an invention. There used to be more emphasis in patent law on 'reduction to practice' and models were required to get patents, but this was found to be impractical and logically redundant so discontinuing the requirement was justified.

And since the basis of all property is a causal connection between the creator of values and the values created, then independent inventors (who caused the creation of an idea and are in part responsible for some of the value people are then getting from the idea) should be able to have their work respected with the granting of a patent.

This is bad in theory and practice because it ignores the need for objectivity in law and first possession as justification.

[nanite1018 10]

I had to put aside the burden of proof issue entirely to get this far, and the point is in principle there is no other legal obstacle to dozens of patents to the same invention. If you declare a priori there is no such thing as intellectual property or that objectivity cannot apply to defining inventions or ideas (a strange notion for one interested in Objectivism) then by definition there cannot be conflicting claims because anyone's claims are as valid as anyone else's.

I never denied the validity of intellectual property, nor did I deny the applicability of objectivity in defining inventions or ideas. I am disputing the claim that the origin of an invention, idea, or value has absolutely no relation to who should have a right to it.

It is obvious that there are really independent inventors in the real world, yes? I think we can agree that there has indeed been at least one instance of truly independent invention in history. Clearly, then, at least some of the value from the invention is no longer the responsibility of the original inventor (at some point in time at least some people would only know about the invention from the second, independent inventor). We can, I think, agree on this point as well. My view of your position is that this is irrelevant. I do not see how this can be consistent with the position that one should have a right to the value(s) one creates, because this is a clear instance of denying that principle (the second inventor did indeed create some new value(s)--some people only know about his act of invention, not the first, and so the value the invention gives them is solely the responsibility and creation of the second inventor).

You could theoretically gin up such a procedure for granting patents, but in infringement suits defending the patent right the burden of proof is on the plaintiff. Unless you also want to invent a whole new civil law procedure just for patents? (Caution: There is a strong and generally applicable reason for the burden of proof being on the plaintiff.)

...

It is still causal but applied to concepts. The question in infringement suits is "Is the alleged infringing good within the bounds of the patented claims?" It is an inquiry as to whether the set-element relationship exists. Necessarily then it is possible that particular valuable goods created by others fall within a patent's claims even though the inventor did not create them. That is what infringement is, what it means, what it refers to.

A patent is on a general design, an open-ended concept, as you said. Suppose I bring an infringement suit against a man (I am the original inventor). He admits that his invention meets the terms of the patent, but denies that he is infringing on my rights because he is an independent inventor. By doing so, the burden of proof should shift to him. As you said, if it were the other way around, where the plaintiff had to prove dependent invention, it would be impossible and the patent system would fall apart.

We have systems like this today. It is called an affirmative defense, the most familiar example is self-defense. Let us say you are charged with murder. You then claim that you did in fact kill someone, but that you do not meet the conditions of murder because it was self-defense. The burden of proof now shifts to you to prove it was self-defense. Now often in affirmative defenses one does not need to prove beyond a reasonable doubt, but often only to a preponderance of the evidence (or lower). And sometimes it merely must be asserted. But clearly, it is reasonable to suggest that one could place "independent invention" in the category of an affirmative defense in a patent infringement case, and have the burden of proof shift to the defendant. By doing this, one eliminates you objections of the "patent troll" and others, and if the burden of proof is quite high, effectively neutralizes your objections about dozens of inventors and the rest.

If an inventor can describe the invention in terms that meet the formal requirements then that is on its face (i.e. self-evident or prima facie) evidence that he did make the invention. In the absence of contrary evidence (i.e. prior art, fraud, etc..) it is conclusive evidence that will result in allowing the patent to issue because a patent is recognized as a right which the government (patent office) must acknowledge (the shall issue language in the patent law).

That is actually how it is done in land, and patents follow the same principle. The plaintiff has the burden of proof. (and see Adverse possession.)

Disclosing and claiming the invention is evidence of possession for an invention. There used to be more emphasis in patent law on 'reduction to practice' and models were required to get patents, but this was found to be impractical and logically redundant so discontinuing the requirement was justified.

This procedure seems like a bad one. One should have to give more evidence than simply a description that one actually did invent the thing. In any case I'm not sure it is very relevant to what we are discussing here. If you can show first invention, then of course you get the patent (and then it would be on the original inventor to show that they invented it independently). The key that we are looking at here is the event of independent invention, which I think is adequately addressed above.

With the notion of an "affirmative defense", I think we can place the burden of proof on the person claiming to be an independent inventor, thereby dealing with most of your complaints. The only variable left is just how high the burden of proof should be. The preponderance of evidence (at least), though I tend to think somewhat higher (perhaps "beyond a reasonable doubt"). If it was "beyond a reasonable doubt", very few would be able to demonstrate it indeed, and making this change would have negligible negative impact while better achieving the goal of a just system of property rights.

[Grames 332]

It is obvious that there are really independent inventors in the real world, yes? I think we can agree that there has indeed been at least one instance of truly independent invention in history.

Yes, there is the trade secret exemption. But in that case what conclusively proves independent invention is the earlier in time possession and use of the secret. An independent inventor who comes along after the publication of the patent can never as conclusively prove that he was not directly or indirectly influenced by the already published patent. It is contradictory on the part of the late independent inventor to both be familiar with the patent system and desire to have one while simultaneously claiming not to know of patents that already exist. At most the proposed affirmative defense of independent invention could be used at an infringement suit but could never be extended to issuing a duplicate patent on the same invention.

Independent inventors are all either earlier or later than the patent. The earlier case is easy to prove, the later case is impossible to prove because of the concept of "prior art". Prior art refers to all of the information that is publicly available in any form that is relevant to a patent's claim to being novel. Official publication of the disclosure of the invention in a patent constitutes a part of the prior art. The only workable legal standard is to refer to all prior art even though no one can possibly know all the prior art. Novelty as a legal requirement for a patent refers to more than any one single person's personal context of knowledge, it includes the full legally objective context of all recorded knowledge. Allowing patents for later independent inventions based on an inventor's personal context of knowledge discards the concept of prior art and transforms the originality requirement from objective originality to a personal originality (subjective or intrinsic originality would also be equally descriptive). If the concept 'originality' has different referents for different people then that is a source for disagreement, uncertainty, conflict and non-objectivity in the law.

Legal objectivity in patent law can be described as combining the acknowledgement of identity and causality in the relation between inventors and their inventions with an impersonal context of knowledge. This leads to a predictable, deterministic legal code where 'deterministic' here is a desirable attribute.

A patent is on a general design, an open-ended concept, as you said. Suppose I bring an infringement suit against a man (I am the original inventor). He admits that his invention meets the terms of the patent, but denies that he is infringing on my rights because he is an independent inventor.

Currently patents can be attacked and broken on the basis that they should never have issued because prior art demonstrating the same invention exists. If independent invention is an affirmative defense from infringement it can also be an affirmative defense against invalidating a patent due to prior art as long as it was unknown to the inventor at the time of invention. So there could be patents that would be completely unenforceable once the prior art was discovered yet they would still be valid patents. This would be an absurd situation.

This procedure seems like a bad one. One should have to give more evidence than simply a description that one actually did invent the thing.

Patents are not issued for "black box" devices that only specify the inputs and outputs with no means for accomplishing the function. If the invention is described fully then the invention is in the possession of anyone able to describe it fully. The first inventor to be able to describe it fully has demonstrated first possession.

[nanite1018 10]

The only workable legal standard is to refer to all prior art even though no one can possibly know all the prior art. Novelty as a legal requirement for a patent refers to more than any one single person's personal context of knowledge, it includes the full legally objective context of all recorded knowledge. Allowing patents for later independent inventions based on an inventor's personal context of knowledge discards the concept of prior art and transforms the originality requirement from objective originality to a personal originality (subjective or intrinsic originality would also be equally descriptive). If the concept 'originality' has different referents for different people then that is a source for disagreement, uncertainty, conflict and non-objectivity in the law.

Legal objectivity in patent law can be described as combining the acknowledgement of identity and causality in the relation between inventors and their inventions with an impersonal context of knowledge. This leads to a predictable, deterministic legal code where 'deterministic' here is a desirable attribute.

There is no such thing as an impersonal context of knowledge. All knowledge is held personally, as only individuals have minds and all knowledge ultimately lies in the minds of individuals. By making independent invention an affirmative defense, and having some well defined standard of proof for independent invention, one retains objectivity in the law (and a reasonable standard of proof would make any uncertainty introduced relatively small, since a simply patent search on Google Scholar will in all likelihood inform someone whether or not their idea has already been done, making truly independent invention unlikely after a patent has been filed). There is no such thing as an impersonal context of knowledge, even as an abstraction (it would be a contradiction in terms), and so has no place in a legal system.

I think this is probably the root of the disagreement--precisely because all knowledge is in a personal context this fact of reality must be taken into account in a legal system. To insist on imposing an "impersonal" context of knowledge in the legal system, one makes it impossible to know whether one is infringing on someone's rights or not. With rights to material things it is generally quite easy to tell whether one might be infringing on someone's rights (land is fenced in, radio frequencies are being broadcast on, objects are man-made, and if I didn't fence it, broadcast on it, or make it, or buy the things, then they aren't mine). Given the fairly straight-forward ability in the vast majority of cases to know, purely from personal context, that one may be violating someone's rights to physical property, an "impersonal" context of knowledge in the sense you use it will have virtually no effect (as personal contexts and the impersonal context will lead to similar answers).

However, with intellectual property, in which one would need to know everything that has ever been made publicly available on Earth, which is clearly impossible, one may never know whether one is violating an intellectual property right, or whether one's patent will be stripped from him at a later date. That is what introduces real uncertainty. By acknowledging that the only context of knowledge is a personal one and making independent invention an affirmative defense in a patent infringement case (and issuing a shared patent, or a second patent, however one wants to put it, in the event of independent invention being proven), one makes it very easy for one to know (at least for themselves) whether or not they are infringing on anyone's rights, and also ensures that one need not concern oneself really at all with the possibility that someone invented it first and may strip you of your patent rights. This allows one to plan one's own actions and ensure that one never violates anyone's rights based on one's own knowledge, rather than demanding that, in order to avoid violating a person's rights, one must be omniscient.

Currently patents can be attacked and broken on the basis that they should never have issued because prior art demonstrating the same invention exists. If independent invention is an affirmative defense from infringement it can also be an affirmative defense against invalidating a patent due to prior art as long as it was unknown to the inventor at the time of invention. So there could be patents that would be completely unenforceable once the prior art was discovered yet they would still be valid patents. This would be an absurd situation.

I don't see why this would be an absurd situation. One would have to prove that the person got the idea from you or your patent, rather than from the prior art. Since that is highly unlikely, even impossible, one would not be able to successfully defeat someone in a patent infringement case if the invention was in the "prior art" (if the prior art was a patent, and one was unable to demonstrate from which of the inventors the person got the idea, then the damages would be split between the inventors). This doesn't invalidate the system of patents, it is quite self-consistent. It is the notion of an impersonal context of knowledge which is inconsistent. People aren't omniscient, and to demand that they be to ensure one does not violate the rights of others is no more absurd than to demand it in order to one has knowledge.

[Grames 332]

There is no such thing as an impersonal context of knowledge. All knowledge is held personally, as only individuals have minds and all knowledge ultimately lies in the minds of individuals. ...

I think this is probably the root of the disagreement--precisely because all knowledge is in a personal context this fact of reality must be taken into account in a legal system. To insist on imposing an "impersonal" context of knowledge in the legal system, one makes it impossible to know whether one is infringing on someone's rights or not.

Any knowledge held by a person other than you is outside of your personal context of knowledge, and is therefore impersonal knowledge from your perspective (or the independent inventor's). The sum of everyone else's context of knowledge is the meaning of an impersonal context of knowledge. The legal version of this is even more restricted by requiring that impersonal knowledge to be documented and in citation-friendly form. Documentation can persist long after the life span of the author ends.

This obliviousness to the important fact that other people exist and that fact has to be taken into account when applying objectivity in a social context such as law is a big problem. It is the root error behind the Roy Childs' argument for anarchy (see Epistemological Anarchy thread), which still trips people up to this day. The lone heroic inventor has to prove to other people that he was first to possess the invention, and if he can't prove it then his lonesome heroism counts for nothing.

However, with intellectual property, in which one would need to know everything that has ever been made publicly available on Earth, which is clearly impossible, one may never know whether one is violating an intellectual property right, or whether one's patent will be stripped from him at a later date. That is what introduces real uncertainty. By acknowledging that the only context of knowledge is a personal one and making independent invention an affirmative defense in a patent infringement case (and issuing a shared patent, or a second patent, however one wants to put it, in the event of independent invention being proven), one makes it very easy for one to know (at least for themselves) whether or not they are infringing on anyone's rights, and also ensures that one need not concern oneself really at all with the possibility that someone invented it first and may strip you of your patent rights. This allows one to plan one's own actions and ensure that one never violates anyone's rights based on one's own knowledge, rather than demanding that, in order to avoid violating a person's rights, one must be omniscient.

Because patents are term limited and expire the total number of active patents at any time is finite, and the portion in any particular field is a quite manageable amount to search. Having accomplished such searches myself and knowing that I am not omniscient, I know that omniscience is not required. Nor is this a personal context of knowledge. Many other examiners have performed such searches before and since I performed mine and none of them were omniscient either.

If you are doing something new and are worried about violating someone else's patent the soundest thing to do is to file for your own patent. Either you are first and get your own patent or are not and find out by a nice letter from the patent office citing the prior art. Note that once you get a patent there is a presumption of validity and the evidentiary standard employed to break it in court is "clear and convincing" (less than "beyond a reasonable doubt" but more than "a preponderance of the evidence", recently re-affirmed by the Supreme Court in Microsoft Corp. v. i4i Ltd. June 2011) so you do have something pretty reliable.

If you want a right to exclude others from your invention then it behooves you to know what others are doing and have done. Such knowledge is not self-evident but neither is it impossible to obtain.

[nanite1018 10]

This obliviousness to the important fact that other people exist and that fact has to be taken into account when applying objectivity in a social context such as law is a big problem. It is the root error behind the Roy Childs' argument for anarchy (see Epistemological Anarchy thread), which still trips people up to this day. The lone heroic inventor has to prove to other people that he was first to possess the invention, and if he can't prove it then his lonesome heroism counts for nothing.

Well that gets me thinking. I currently agree with Childs' argument; it seemed plain that it was correct. Similarly, I thought the quote of Rothbard's in that thread was reasonable as well. My understanding of "objective" has always been the relationship between an individuals mind and reality--you are objective/meeting the requirements of objectivity if you are focused and rigorously applying reason and logic to all the data you get about reality from your senses. If you obey the proper rules of deduction and induction, you're objective. If not, you're not. My understanding was always that other people are wholly irrelevant except if I am trying to communicate an idea to them (though still, all that is needed is for me to refer to the appropriate facts of reality and for them to be likewise objective, then we will understand each other and there should be no issue).

I'm still not convinced that one needs to take into account other people in objectivity, per se. Whether an action was retaliatory or not is a fact of reality that can be discovered. Whether I invented something independently or not is a fact that can be discovered. It seems to me that, in the case of IP, making independent invention an affirmative defense is enough to meet the standard of objectivity--you must prove to others you are indeed an independent inventor, or else they must consider you not to be. Similarly with force--you must prove to others your use of force was retaliatory, or else they must consider it not to be.

However I am intrigued by the fact that you draw a connection between the two areas where I disagree with Objectivism (i.e. independent inventors and the need for monopoly in government, they are the only two locations I know of where I have decided it is incorrect in its positions), and trace them back to a common origin in a misunderstanding or ignorance of the demands of objectivity in a social context. It's possible I am mistaken here. My view, on both counts, is that provided we take such instances (retaliation or independent invention) to be affirmative defenses, the requirements of objectivity are met (as they are considered to be in violation until they prove themselves not to be). I'm not sure I understand why you think this is not the case. Do you have more resources that go into detail about the requirements of objectivity in social context? I don't remember anything other than a handful of brief comments by Rand in a few essays. The statements about the need for a monopoly government, for example, have always come across as mere assertions that don't address arguments like Childs'. I've never seen anyone draw the argument(s) back to a discussion of the nature of objectivity and how it is applied socially, and I definitely would like to investigate it further.

Edited August 7, 2011 by nanite1018