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Patents, innovation, and progress

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punk
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The arguments in defense of the legal process of "patenting" usually include some attempt to link patents to helping further innovation and progress by providing incentives to invent new things by allowing one to enjoy exclusive profits from them.

If you disagree with the above preamble, that's fine, it is just a preamble and the interesting meat comes next.

I used to work for a corporation which expressly researched and gained patents in areas related to its own product with the express intent of *denying* the innovation to the competition and with no intention of using the patents to innovate away from their current strategy for their product.

The company in question produced semi-conductor capital equipment, and the nature of the market at the time was that there were basically two suppliers of the equipment and maybe a dozen costumers (probably fewer).

It strikes me that one condition for holding a patent ought to be that one is actively working to exploit the technology in question, and that if one is not doing so the patent ought to be void and others able to exploit the technology.

On the other hand the parallel to this would be land use where a person could only claim title to land they are using, and would lose ownership of land they are just holding and not using. Of course property rights allow one to own land they never use for anything.

Thoughts? Should one be allowed to hold a patent they are not trying to make use of and thereby stifle technological progress?

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This defensive tactic is a very common strategy. There is an art to writing patents, and the more you know what your invention is good for, and the essentials of what make it valuable, the more clearly you articulate and patent that. If it takes multiple patents to do this, or to articulate additional similar items, from which you only select one to commercialize, I'm not sure what the big deal is.

On the flip side is it "fair" if you write a patent poorly and someone figures out how to patent around your invention? Sure...

Why do you think this is not fair?

In India, process patents must be utilized within 3 years or one can be FORCED TO PROVIDE LICENSES to whomever protests your non-use of the patent. Which seems to me more like a violation of rights.

If one is not free to do with private property what they choose, then it is not really private.

The other way to look at this is that in practice patents are a short term blocking tactic. In the long term it is continued innovation that ultiamately wins. Sit on a patent and soon it won't be worth anything anyway...

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This defensive tactic is a very common strategy. There is an art to writing patents, and the more you know what your invention is good for, and the essentials of what make it valuable, the more clearly you articulate and patent that. If it takes multiple patents to do this, or to articulate additional similar items, from which you only select one to commercialize, I'm not sure what the big deal is.

On the flip side is it "fair" if you write a patent poorly and someone figures out how to patent around your invention? Sure...

Why do you think this is not fair?

In India, process patents must be utilized within 3 years or one can be FORCED TO PROVIDE LICENSES to whomever protests your non-use of the patent. Which seems to me more like a violation of rights.

If one is not free to do with private property what they choose, then it is not really private.

The other way to look at this is that in practice patents are a short term blocking tactic. In the long term it is continued innovation that ultiamately wins. Sit on a patent and soon it won't be worth anything anyway...

I'm not thinking in terms of "fairness".

A patent is a piece of law created by a rational society to improve itself. Conceivably it might be more rational to limit patents to people actually using them.

Of course the alternative is to treat a patent as property like any other, and say that unfortunately defensive patents are a "necessary evil".

That might be the answer.

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...law created by a rational society to improve itself.

This I think is the premise you must check. Patents are property, intellectual property, to be exact. Your premise above would imply that I have "intellectual property" at the behest of society, as long as I serve society's purpose, don't you think?

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The arguments in defense of the legal process of "patenting" usually include some attempt to link patents to helping further innovation and progress by providing incentives to invent new things by allowing one to enjoy exclusive profits from them.
Although this is vegetarian preamble, it contains a foundational error that underlies the main course. By right, man owns the product of his mind. It may well be that patents have this side-effect of social greatest common good, but this is not the principle that gives rise to patents in a rational legal system. The topic is treated in Rand's essay "Patents and Copyrights", ch. 11 of Capitalism: The Unknown Ideal.
It strikes me that one condition for holding a patent ought to be that one is actively working to exploit the technology in question, and that if one is not doing so the patent ought to be void and others able to exploit the technology.
But why? Ownership is not contingent on serving the people. Analogously, one condition for owning a car is that you have to actively use it for transporting people. Or, as you say, if you're not actively using the land, it should revert to the people.
Should one be allowed to hold a patent they are not trying to make use of and thereby stifle technological progress?
I don't see how that stifles technological progress. If anything, it would encourage progress. Suppose I discover a low-cost way of turning dog hair into gasoline, but decide because I own huge areas of petroleum fields that I don't want anybody to use the technique. Well, fine, then this other engineer, Tom Galt, discovers a different he decides to exploit his discovery. And he discovered this other method because I've got a lock on method one for 25 years. My irrational behavior unintentionally stimulated innovation, all for the greater common good.

As Kendall says, your right to property does not come from how it serves society's purpose.

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Since intellectual property rights cannot be exercised in perpetuity, the question of their time limit is an enormously complex issue... In the case of copyrights, the most rational solution is Great Britain's Copyright Act of 1911, which established the copyright of books, paintings, movies, etc. for the lifetime of the author and fifty years thereafter.

I don't understand why intellectual property rights cannot be exercised in perpetuity, just like any other property. If I build a house it doesn't cease to be property 50 years after my death - it belongs to whoever I sold it to before I died. Shouldn't this be true of a patent? Any insight on this?

I don't think Rand explains this in any detail in the essay, but I only have the excerpt from The Ayn Rand Lexicon to go by, so let me know if I'm wrong.

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What is the basis of intellectual property? I understand saying: "you can't steal my dog-hair-gasoline-converter" or "if you purchase my dog-hair-gasoline-converter, you agree to use it only on such-and-such terms[edit: such and such terms could be: you can't copy my implementation] and if you allow it into anyone else's hands, you are responsible for making sure that that someone else follows such terms", but why is it that, just because someone out in Mississippi discovers a dog-hair-gasoline-converter, and I've never heard of it or if I have I've never even looked at it, I can't produce my own that I find on my own. It seems like this is a "right" that limits rights.

Edited by Cogito
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I don't understand why intellectual property rights cannot be exercised in perpetuity, just like any other property.
Because unlike a physical object, intellectual property without statutory termination is effortlessly eternal. To keep land, the owner must do something to preserve it against nature, to prevent flooding, erosion or fire. With perpetual IP, you would have a claim against other people solely because some remote ancestor thought of this invention, not through your own merit / mental effort. IP, for example the right to a newly invented gadget that we might call a hammer, does not mean ownership of a specific set of hammers: it means that you have have the exclusive right to act in a particular manner with respect to the concept of hammer, for a given period of time.

To anticipate the usual follow-up question (now guess what the question is), "Even if you acquired it effortlessly, you must still act wisely in order to keep it".

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What is the basis of intellectual property?
The basis is the same as the basis for all property rights: that a man has the right to the product of his mind. Just as a baker has the right to the product of his mind and physical labor when he makes an ordinary loaf of bread, the engineer has the right to the product of his mind and physical labor, when he discovers and brings to reality an idea.
and if you allow it into anyone else's hands, you are responsible for making sure that that someone else follows such terms
This is, practically speaking, the same as not having any protection for IP at all, and is also an such an unreasonable requirement to impose on a customer that no sane person would buy your product. I agree (if that's what you're saying) that a person should be cautious in facilitating the evildoings of pirates, but from a legal perspective, this is an untenable concept of responsibility.

The basic weakness is that people drop things and people find things, and you cannot make it a crime for people to pick up lost or abandoned stuff (much less to lose or abandon stuff). One way to try to eliminate the special case of patent and copyright law is via agreement, so if you invent and sell the dog-hair converter, each copy that you sell comes with a contract which states that you may not copy the device, may not transfer ownership without the purchaser receiving and signing this agreement (which binds them to not copy and perpetuate the agreement). But such an agreement does not guarantee that the owner will succeed in living up to the promise: he may simply sell the object without the agreement either intentionally or accidentally; or he may lose the object. Once it is in the hands of an innocent third party who has not signed the agreement, that person has every right to reverse-engineer and market the product on his own. That's why there has to be separate law that's separate from a contractual "chain of custody".

Additionally, under a contractual scheme, the inventor would have the burden of proving that a particular person violated the terms (and thus owes him a billion bucks of lost revenue). You might know that somebody broke the rules, but it would be almost impossible to know and prove who broke the rules, and without that, you have no remedy.

Finally, there's a real problem when it comes to the concept "parties to a contract", if you try to emulate IP law via contract. When A sells a thing to B, that means that A transfers ownership of the thing to B, and it is no longer A's, so when the sale is over, A has no claim on the object; B can then sell it to C, and C can sell it to D. A and D have no legal connection whatsoever. If D violates some terms of sale, that may give C a basis for legal action, but A has no basis for action, because the contract is between C and D, not A and D. A would have no legal standing to go after D for a violation of contract, because there is no contract between A and C, only C and D.

[ed: forgot to mention a couple links to IP threads, here and here]

Edited by DavidOdden
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The basis is the same as the basis for all property rights

But it isn't the same as other property rights... With physical property, if someone takes that which is not his, the person who owns it cannot use it. There is no "thought land" that only one person can occupy at once.

: that a man has the right to the product of his mind. Just as a baker has the right to the product of his mind and physical labor when he makes an ordinary loaf of bread, the engineer has the right to the product of his mind and physical labor, when he discovers and brings to reality an idea.

So then why is it that I do not have the right to the product of my mind, if I figure out the formula for dog-hair converter I can't use it because someone halfway across the country (or the world?) has also figured it out?

This is, practically speaking, the same as not having any protection for IP at all, and is also an such an unreasonable requirement to impose on a customer that no sane person would buy your product.

Really? What about in the case of software licensing? For many of the open source programs out there, by downloading the source you agree not to reproduce, distribute, or change the source without including the license, and that license can include terms about, as an example, where royalties go if any money is made.

The basic weakness is that people drop things and people find things, and you cannot make it a crime for people to pick up lost or abandoned stuff (much less to lose or abandon stuff).

If I, with my perfectly clean record and background check, purchase a gun, am I allowed to leave it on the street where anyone can pick it up? Even if you answer yes, you might not be able to make it illegal to lose or abandon items, but you could make it a violation of contract to allow the property into the hands of someone who would violate any of the other terms of the contract.

One way to try to eliminate the special case of patent and copyright law is via agreement, so if you invent and sell the dog-hair converter, each copy that you sell comes with a contract which states that you may not copy the device, may not transfer ownership without the purchaser receiving and signing this agreement (which binds them to not copy and perpetuate the agreement). But such an agreement does not guarantee that the owner will succeed in living up to the promise: he may simply sell the object without the agreement either intentionally or accidentally; or he may lose the object. Once it is in the hands of an innocent third party who has not signed the agreement, that person has every right to reverse-engineer and market the product on his own. That's why there has to be separate law that's separate from a contractual "chain of custody".

There are two ways to deal with this... One is to hold the original buyer responsible, since it was a part of the contract that he not allow this kind of thing to happen. The other (and this is much admittedly rarely applicable) is to design the product in such a way that it necessitates the agreement to the contract's terms before use (this could be done, for example, with a computer).

Additionally, under a contractual scheme, the inventor would have the burden of proving that a particular person violated the terms (and thus owes him a billion bucks of lost revenue). You might know that somebody broke the rules, but it would be almost impossible to know and prove who broke the rules, and without that, you have no remedy.

You just trace the ownership of the copied product back until you get to the point where one owner allowed the product to pass hands without agreement to the contract... I'm not sure that this would be too much of a hassle. Perhaps I'm wrong here; I'm open to contrary evidence.

Finally, there's a real problem when it comes to the concept "parties to a contract", if you try to emulate IP law via contract. When A sells a thing to B, that means that A transfers ownership of the thing to B, and it is no longer A's, so when the sale is over, A has no claim on the object; B can then sell it to C, and C can sell it to D. A and D have no legal connection whatsoever. If D violates some terms of sale, that may give C a basis for legal action, but A has no basis for action, because the contract is between C and D, not A and D. A would have no legal standing to go after D for a violation of contract, because there is no contract between A and C, only C and D.

Two ways to deal with this: One, not sell the object but sell the rights to use the object(thus keeping ownership with A the whole time). The other has to do with the way the contract is written. Couldn't I say "I will sell you this object on the condition that, if ownership is transfered in the future you are responsible to make sure that the next person will follow the conditions and I give you the right to transfer that responsibility to the next owner upon acceptance of the conditions of the contract and sale of the object" ? That keeps the legal chain connected back to the initial owner.

[ed: forgot to mention a couple links to IP threads, here and here]

Are any of my questions/objections addressed in these? I'll probably end up reading them anyway.

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Really? What about in the case of software licensing? For many of the open source programs out there, by downloading the source you agree not to reproduce, distribute, or change the source without including the license, and that license can include terms about, as an example, where royalties go if any money is made.
All open source licensing is backed up by copyright law. It basically says "This stuff is copyrighted; but you have permission to use it according to the following conditions; if you violate these terms, you do not have permission; and therefore you are suable under copyright law". Ordinary (e.g. MS) license is the same, minus the permission to freely distribute.
but you could make it a violation of contract to allow the property into the hands of someone who would violate any of the other terms of the contract.
That's an unreasonable and thus enforceable condition in a contract, since it requires infallibility. You could require great dilligence, but a contract that requires you never fail to hold onto the good and to take responsibility for the moral and legal failings of another party is not an enforceable contract.
You just trace the ownership of the copied product back until you get to the point where one owner allowed the product to pass hands without agreement to the contract... I'm not sure that this would be too much of a hassle. Perhaps I'm wrong here; I'm open to contrary evidence.
For example, you have in mind a central registry of sales, so that every hammer has a serial number on it, every sale must be recorded in the county courthouse (just like with property sales) with plenty of identification, background checks and title searches? Plus a rights-violating law pertaining to the obligation to destroy any hammer without a legal and recognizable serial number? Yes, you could do things that way. This is where we get to the "nobody would buy your product" problem. The level of bureaucracy would be hunormous, and all for what, to avoid having a law recognizing a man's right to the product of his mind?
Two ways to deal with this: One, not sell the object but sell the rights to use the object(thus keeping ownership with A the whole time).
Again, you have the tracing problem. When I buy a hammer, how do I know that I am actually buying the hammer, or just buying a license to use the hammer? If the salesman doesn't give me a license form to sign, I have no way to know it isn't really my hammer. (Again, remember that software licensing rides on the back of copyright law). So if I don't get a license form, I get to make copies as I want.
The other has to do with the way the contract is written. Couldn't I say "I will sell you this object on the condition that, if ownership is transfered in the future you are responsible to make sure that the next person will follow the conditions and I give you the right to transfer that responsibility to the next owner upon acceptance of the conditions of the contract and sale of the object" ? That keeps the legal chain connected back to the initial owner.
No, because it's not an enforceable condition of a contract that I may not transfer ownership subject to unknowable facts about future persons who may not even be born yet -- I can't be responsible for making sure that 30 years after my death and 12 sales down the line, some person doesn't throw away the contract form, thereby breaking the chain of contract obligations. A contract binds the agreeing parties, period.
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While I agree 100% with Intelectual Property as property, i.e. rightfully owned and not conceded "for the good of society", I have always hated this argument against perpetuity:

Because unlike a physical object, intellectual property without statutory termination is effortlessly eternal. To keep land, the owner must do something to preserve it against nature, to prevent flooding, erosion or fire. With perpetual IP, you would have a claim against other people solely because some remote ancestor thought of this invention, not through your own merit / mental effort.

Yes IP is effortlessly eternal, so what? Is it less mine because I don't have to act to keep it? I did act to create it in the first place, its mine. The only actual argument in favor of time limited IP I have ever heard is "in time someone else would have thought of that". Well, in time someone else would have found that oil field, plowed that field, built that car - accept that argument and you invalidate all property and not only the intellectual sort.

Now I agree that eternal IP would have negative effects. Since the moral is the practical, I think that these negative effects we can imagine are a clear indication that there is some reason why IP should be time limited. I just don't think the agrument above is it. Understanding the true reason IP should be limited would most likely lead to an answer to the nagging question "how long should IP be protected?".

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All open source licensing is backed up by copyright law. It basically says "This stuff is copyrighted; but you have permission to use it according to the following conditions; if you violate these terms, you do not have permission; and therefore you are suable under copyright law". Ordinary (e.g. MS) license is the same, minus the permission to freely distribute.That's an unreasonable and thus enforceable condition in a contract, since it requires infallibility. You could require great dilligence, but a contract that requires you never fail to hold onto the good and to take responsibility for the moral and legal failings of another party is not an enforceable contract.For example, you have in mind a central registry of sales, so that every hammer has a serial number on it, every sale must be recorded in the county courthouse (just like with property sales) with plenty of identification, background checks and title searches? Plus a rights-violating law pertaining to the obligation to destroy any hammer without a legal and recognizable serial number? Yes, you could do things that way. This is where we get to the "nobody would buy your product" problem. The level of bureaucracy would be hunormous, and all for what, to avoid having a law recognizing a man's right to the product of his mind?Again, you have the tracing problem. When I buy a hammer, how do I know that I am actually buying the hammer, or just buying a license to use the hammer? If the salesman doesn't give me a license form to sign, I have no way to know it isn't really my hammer. (Again, remember that software licensing rides on the back of copyright law). So if I don't get a license form, I get to make copies as I want.No, because it's not an enforceable condition of a contract that I may not transfer ownership subject to unknowable facts about future persons who may not even be born yet -- I can't be responsible for making sure that 30 years after my death and 12 sales down the line, some person doesn't throw away the contract form, thereby breaking the chain of contract obligations. A contract binds the agreeing parties, period.

Ok, I'll stipulate that my method of replacing patents with contracts won't work. So I'll get back to my original question: Why are patents valid in the first place? You say "because man has a right to the products of his mind". So, if my mind comes up with the formula for dog-hair converter, why am I not allowed to use it?

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I don't understand why intellectual property rights cannot be exercised in perpetuity, just like any other property. If I build a house it doesn't cease to be property 50 years after my death - it belongs to whoever I sold it to before I died. Shouldn't this be true of a patent? Any insight on this?

I don't think Rand explains this in any detail in the essay, but I only have the excerpt from The Ayn Rand Lexicon to go by, so let me know if I'm wrong.

Indeed the argument for patent expiration is that freely available knowledge is furthers technological innovation.

For example if screwdivers had been patented originally, and the patent existed forever, then many inventions using screws would be either unavailable or substantially more expensive.

The argument being that in the long run patents stifle innovation.

Innovation is also stifled when other people can steal an idea and prevent the originator from making money from it (i.e. without patents the incentive to innovate collapses).

So an expiring patent steers to best route between two undesirable scenarios.

I haven't seen a good argument that makes ideas property like land. If you build it the thing you built is property, the idea is an idea, a tad nebulous.

If patent law exists to encourage innovation, then it seems defensive patents run counter to this.

Edited by punk
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Yes IP is effortlessly eternal, so what? Is it less mine because I don't have to act to keep it? I did act to create it in the first place, its mine. The only actual argument in favor of time limited IP I have ever heard is "in time someone else would have thought of that". Well, in time someone else would have found that oil field, plowed that field, built that car - accept that argument and you invalidate all property and not only the intellectual sort.

Now I agree that eternal IP would have negative effects. Since the moral is the practical, I think that these negative effects we can imagine are a clear indication that there is some reason why IP should be time limited. I just don't think the agrument above is it. Understanding the true reason IP should be limited would most likely lead to an answer to the nagging question "how long should IP be protected?".

My take on this is different from David's. Limited patent life is a reflection of the de facto decline in value of an idea with time. Yes, ideas are "effortlessly eternal", but they are not eternally valuable. It is not that in time people would have invented your invention, but that in time people can and as a practical matter do invent alternatives.

The reality is that most patents without subsequent invention, lose their value over time. It would be impractical to build a beaurocracy to enforce patents that for all practical purposes would not hold value.

To that end the time of life is somewhat arbitrary, but in reality the important aspect of that time is that it allows for enough time to develop subsequent innovation, and enough time to create tangible competitive advantage from it. That is really all business cares about. We can debate that some ideas have longer life than 17 years, but I'd be hard pressed to defend this argument.

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Indeed the argument for patent expiration is that freely available knowledge is furthers technological innovation.

For example if screwdivers had been patented originally, and the patent existed forever, then many inventions using screws would be either unavailable or substantially more expensive.

uggh. No. That is again your "socialist" argument for patent expiration. A more proper argument is that after a certain time the original patent holds little value.

The screwdriver argument doesn't really hold water. After a period of time, the exorbitant profits made by the screwdriver patent holder would have drawn others into the market to develop substitutes for slotted screws as a fastener,thereby removing the advantage and value that the original patent had.

The law reflects reality. It is not there to shape reality to "societies" ends.

What fosters innovation is a person being allowed to keep the products of his mind and showing others how much money he can make at it. Substitutes will show up very quickly thereafter, even if he still holds a patent.

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but why is it that, just because someone out in Mississippi discovers a dog-hair-gasoline-converter, and I've never heard of it or if I have I've never even looked at it, I can't produce my own that I find on my own.

Not all ideas should be allowed to be patented. Only ideas that are very unique.

If you think of a very unique idea, that is very unlikely to be thought of by another, then you should be allowed to own it in the sense that you can bargain on it's application, sell the idea etc'.

If someone claims that they had thought of your dog hair converter by themselves, and they show your exact sketches for the machine, with the same exact mechanism (only sketched in their hand writing), would you agree that it is practically impossible that they reached the exact same idea independently? Some ideas are unique, like people, or a fingerprint.

I also think that if someone can prove that they reached the same idea by a different process of thought (or experimentation) then they should also be allowed to own it.

Thoughts that are trivial, and not unique should not be allowed to be patented. One person's thoughts and creations should not limit another's. If tomorrow someone thinks of creating a paper in a heart shape (instead of the boring A4 size), they should not be allowed to patent it, and people are thus left free to create their own heart-shaped papers.

Unique ideas are like land: two people cannot own it at once: I'm not talking legally, but metaphysically. This is the idea that stands at the basis of patents (I think).

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Limited patent life is a reflection of the de facto decline in value of an idea with time.

If this were true, we could count on the owners to relinquish their rights to these valueless ideas. Actually, since the ideas would become valueless there would be no point in using them at all. Even if someone happened to use it in ignorance of the patent, the owner would have no incentive to sue. Enforcement cost would be nil.

Government determined patent expiration is only relevant because the idea is not valueless.

Edited by mrocktor
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If this were true, we could count on the owners to relinquish their rights to these valueless ideas. Actually, since the ideas would become valueless there would be no point in using them at all. Even if someone happened to use it in ignorance of the patent, the owner would have no incentive to sue. Enforcement cost would be nil.

Government determined patent expiration is only relevant because the idea is not valueless.

Well, I meant the de facto argument as one that is approximate. It is true that some patents reach the end of their life and still have value, but it is also true that the majority of them proceed just as you describe above, losing their value far before their life is over, and their owners essentially do nothing at the end, or don't even pay to keep up the patents.

The problem is what should the criteria be for determining if an idea still has value? A very sticky discussion. A uniform time limit is a crude approximation, but one that is objectivitly understood by all.

What is far more common than a patent that has held its value, is that a subsequent patent developed as a derivative of the original that is challenged when the first is up. This is very common. The real value is in the 2nd patent which is not expired, but since the first is up, a competitor has an opening, and if they can challenge the validity of the 2nd patent, they knock the whole franchise down in one fell swoop. Generic drugs usually try to make entries like this.

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Ok, I'll stipulate that my method of replacing patents with contracts won't work. So I'll get back to my original question: Why are patents valid in the first place? You say "because man has a right to the products of his mind". So, if my mind comes up with the formula for dog-hair converter, why am I not allowed to use it?
This comes down to the issue of exclusivity: when a claim of ownership is made (for a discovery or a physical object), the rule is "first come, first served". Any other principle would be at best stupid and more likely unprincipled (thus not a principle). Ownership must be exclusive (it carries with it the right to dispose of as you chose, and two separate and equally valid ownerships would be a contradiction since it can lead to an existence/non-existence contradiction). So if on man owns an idea, another man cannot also own the same thing. Analogously, suppose that we are dealing with new land, such as in the US West, when there was tone of unowned land. The government established an orderly system for laying claim to this land, which included filing of a claim. So you could have ten separate men, each of whom recognizes the value of the land for their survival, and one of whom registers their claim on the land and thus gets to claim it as their own. The other 9 men have also used their faculty of reason to see the potential of the land, but only one of them gets to claim it as their actual property.

You asked in your question "why am I not allowed to use it" (emphasis added). Here, there may be some wiggle room -- hire a couple of patent attorneys to get expert opinions, if you want. I would guess that if you innocently, unknowingly and accidentally discovered the dog-hair converter at more or less the same times as Dilko Jones, who actually got the patent, and used the converter for yourself but did not try to sell a competing device, then you would be morally blameless and hopefully / possible legally non-culpable. (Actually, the law does include the "I discovered the same thing first" defense, see 35 USC 273.) Patent law doesn't make it a penal offense to accidentally reinvent the wheel: it primarily makes it a suable offense for reinventing and marketing the wheel.

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uggh. No. That is again your "socialist" argument for patent expiration. A more proper argument is that after a certain time the original patent holds little value.

The screwdriver argument doesn't really hold water. After a period of time, the exorbitant profits made by the screwdriver patent holder would have drawn others into the market to develop substitutes for slotted screws as a fastener,thereby removing the advantage and value that the original patent had.

The law reflects reality. It is not there to shape reality to "societies" ends.

What fosters innovation is a person being allowed to keep the products of his mind and showing others how much money he can make at it. Substitutes will show up very quickly thereafter, even if he still holds a patent.

So you think if I held a patent on the wheel it would have declined in value by now?

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Not all ideas should be allowed to be patented. Only ideas that are very unique.

If you think of a very unique idea, that is very unlikely to be thought of by another, then you should be allowed to own it in the sense that you can bargain on it's application, sell the idea etc'.

If someone claims that they had thought of your dog hair converter by themselves, and they show your exact sketches for the machine, with the same exact mechanism (only sketched in their hand writing), would you agree that it is practically impossible that they reached the exact same idea independently? Some ideas are unique, like people, or a fingerprint.

I also think that if someone can prove that they reached the same idea by a different process of thought (or experimentation) then they should also be allowed to own it.

Thoughts that are trivial, and not unique should not be allowed to be patented. One person's thoughts and creations should not limit another's. If tomorrow someone thinks of creating a paper in a heart shape (instead of the boring A4 size), they should not be allowed to patent it, and people are thus left free to create their own heart-shaped papers.

Unique ideas are like land: two people cannot own it at once: I'm not talking legally, but metaphysically. This is the idea that stands at the basis of patents (I think).

1. One does not patent ideas. One patents inventions, i.e. you have to "reduce an idea to practice" in a particular form to be able to patent something.

2. The test of uniqueness of your idea is already built into the process. You have to indicate all "prior art" that your invention is based upon, and you have to clearly state of list of unique "claims" about your invention, which the patent examiner will check. It is possible to have a patent approved for only part of your claims and not others, and in fact the writing of claims is a very tricky busines to be sure you cover as much as your data will allow you to. Theoretically, trivial claims are discarded, but you would not imagine the sorts of patent claims that get through that many other would dispute as trivial. As a matter of fact, US patents are rarely overturned once issued, and the cost almost always outweighs the probability of success, excepting in really big value cases. Most patent lawsuits are brought when the plaintiff also has a similar patent estate and wants access to the others. Most get resolved by some sort of cross licensing arrangement (threat of suit ---> settle out of court sort of tactic)

3. While it is improbable that two exact inventions will be made simultaneously, competing claims are made all the time. Different countries have different laws about how these are handled. The US makes you show documentation (such as an invention disclosure, or dated lab book or notes) that proves you thought of the idea and reduced it to practice first. You will not both be allowed to own it, unless the loser protests the assignment, but then he has little chance of winning.

4. One need not rely on patents to protect their intellectual property. Because patents are publicly avaialble, some choose to forgoe patents in order to keep the knowledge secret (a "trade secret") as long as you take measure to protect loss of hte secret, this is a viable way of protecting yourself (witness the formula to "Coca Cola"). You have no legal recourse if your secret gets out though.

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So you think if I held a patent on the wheel it would have declined in value by now?

Yup.

You wouldn't have patented the "idea of a wheel". You would have patented a wheel "reduced to practice." Probably something made out of solid wood, with a wooden axle that you had to slop grease on to keep lubricated.

I don't see to many of those around any more. Do you?

You don't patent ideas. You patent inventions. You cannot patent any possible permutation of your idea until you reduce those permuations to practice.

Someone else will come along and improve your invention, or invent a substitute, which he will patent. You may own the underlying invention. He will own the improvement. He cannot practice his without yours. Your is already made obsolete by his. If you are stuborn and wont give him a license, he will try to sell the substitute instead. Your best bet is to give him a license to your underlying technology before the substitute kills you both.

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What is far more common than a patent that has held its value, is that a subsequent patent developed as a derivative of the original that is challenged when the first is up. This is very common. The real value is in the 2nd patent which is not expired, but since the first is up, a competitor has an opening, and if they can challenge the validity of the 2nd patent, they knock the whole franchise down in one fell swoop. Generic drugs usually try to make entries like this.

This I can certainly relate to. As a crude example, take the transistor:

A transistor is a semiconductor device used to control a large electrical current with a small one - essentially an electrical switch. The idea of such a switch was first patented in 1928 by a german scientist. He patented the principle of the transistor not an application! This is clearly an invalid patent.

Subsequently several means to build "a semiconductor device used to control a large electrical current with a small one" were created. Under a rational patents system each one of them could be a separate patent:

Semiconductor material: germanium, silicon, gallium arsenide, silicon carbide

Structure: BJT, JFET, IGFET (MOSFET), IGBT, "other types"

Polarity: NPN, PNP, N-channel, P-channel

A rational system could not accept a patent for "a semiconductor device used to control a large electrical current with a small one", and there is no way the permanent patent to "a gallium arsenide device of BJT construction and NPN polarity used to control a large electrical current with a small one" would stonewall human development forever. There are other ways to switch electric current, there are integrated circuits (which use the same transistor principle but are clearly a different application), electronics itself is bound to become obsolete at some point.

The fact that ideas become obsolete is no justification for expropriating their rightful owners. My current thinking is that patents should not be time limited but that the criteria and scope of patents has to be much better defined.

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