Blackstone on Trial

Please don't write stuff like that. From what I've seen, there's a nonzero chance that any legislator reading it will take it seriously... :P

Have our lawyer friends ever actually done any science?

As a member of the California bar, I must [gently] protest. Some of us understand our limitations, work with experts effectively, and recognize that when we claim special privilege to speak on a topic due to our professional credential our duty of zealous representation of our client is militated by our obligations as officers of the court.

or, in english, we don't lie or allow others to lie on our client's behalf.

Francis.... Splitter.... Blasphemer ....aside he must be from the RFFPHL (Radical Front For the Protection of Honest Lawyers)

If the patent is granted for only a limited time, then the government is taking your property (intellectual property but property nonetheless) and should compensate you accordingly.

PaulC: that sounds pretty accurate. The problem, of course, is that IP "owners" then have a strong incentive to convince us that their "property" is more and more like real property. Thus you get things like the indefinitely-increasing length of copyright protection in an attempt to prevent Steamboat Willie from becoming public domain. You also get software or business process patents, which are travesties in their own right.

IANALBIDRG (I am not a lawyer but I do read Groklaw.net)

It's funny (weird, not ha ha)... Mr. Johnson claims that his profession gives him special expertise in these matters, but I guess when you become a judge that expertise apparently goes out the window. Poor Judge Jones ...

One difference, of course, is that Johnson was an expert in criminal procedure. Notions of consensus, ideas of "what science says," are probably a bit foreign in that area.

Free legal advice is worth every penny you pay, of course, but I have found it useful in the practice of law and the practice of science to defer to those who are paid to know the field. A person tends to do well what she must do to feed, house and clothe the kids. This is not a hard and fast rule, of course, but it does tend to make one look askance at retired law professors who profess to know better than biologists what biology is, does, and should be.

Another rule of thumb I've found usefu: A lawyer outside of the law is only as good as his expert witness -- never better, sometimes worse.

Who is Casey Luskin's expert?

but I guess when you become a judge that expertise apparently goes out the window. Poor Judge Jones

Well now. You must understand that your little diatrabe has one serious error. You are neglecting the substance of the Intelligent Designer. Even though I wouldn't say that God (Yahweh) invented blackberry's communications software, we all know that no one else could fit the bill. I mean, Jesus F. Christ made it all right? Or his dad. Maybe the holy ghost had his hand in it too. St. Peter might have done it I guess but really, isn't that why we celebrate easter with all those bunnies and eggs? Please stop all this thinking into what alternatives to biblical literalism exist. You could do much better by simply reading the bible (one approved by carol of course, published by her publishing house if at all possible) and letting your betters figure out what should be done.

Your arguments are sarcastic, but...

...they read very much like serious arguments made all the time by IP maximalists.

-Rob

Well, as a patent attorney, I see multiple errors in your attempt to emulate the little of Luskin and Johnson I've been able (or willing) to read. First, you are writing based on your experience and knowledge. Second, you have correctly characterized some aspects of patent law. Third, you identified actual issues in US patent law and proposed testable alternatives. In fact, patent infringement is a crime in many countries and most countries use a first-to-file system. Next time, try writing about something you don't know about.

The notion of "intellectual property" is ludicrous. There's no other sort of property that you can steal simply by thinking what someone else has thought, and the theft of which leaves the other party still in possession; nor is there any other sort of "property" for which the U.S. Constitution explicitly gives Congress the power to grant "ownership" of, temporarily. The notion that "intellectual property" is property is just as much bamboozlement as is the notion that "the scientific theory of intellgent design" is a scientific theory, though the former bamboozlers have been even more successful than the latter.

In short, there is no issue of unlawful taking; instead, the government grants a special franchise of part of the public property to a private individual, which it can later revoke (this won't make me popular with libertarians and Ayn Rand fans).

Actually, thinking about it a moment longer, it's much worse than that, since the patent or copyright holder may not being doing anything with their "property". IP laws grant an individual a license to bar others from doing something described by the individual without the individual's permission -- often this translates into needing to pay the individual in order to do the thing. The "need", of course, is entirely artificial, being strictly a consequence of the application of coercive force by the government.

I consider myself Libertarian and I abhor the direction that IP law is going. Ideas are not like physical property and cannot be locked up in perpetuity. There is nothing to steal, and the same idea might occur to dozens of people. Add that the USPTO has gone nuts in the way it issues patents in recent years, and you get an atmosphere that actually stifles innovation.

Patents are a good thing. But the way they're being used these days is horrible (See RIM, the maker of the Blackberry, vs. NTP., nothing more than a patent holding company who makes no products.)

OK, I take back my comment about Libertarians, but the Ayn Rand comment stands (e.g.--if I must go there--the government's confiscation of the "Rearden Metal" patent in Atlas Shrugged
http://education.yahoo.com/homework_help/cliffsnotes/atlas_shrugged/52.html ).

The point that the same idea could have occurred to many people does apply for many patents, but in the case of copyright, there is usually a pretty clear case that independent creation is very unlikely. So you can make some reasonable claims of authorship at least for relatively complex works unlikely to be duplicated independently.

I think the salient point is not whether you "own" the fruits of your creativity but what exactly that ownership entails. If I write a poem, for instance, it would be reasonable for me to claim it as "mine" in perpetuity and bestow on my descendents the right to recite it freely--and collect payment for such recitation if they found anyone willing to pay. They could also claim their ancestor as sole author and defend this authorship in court (I'm pretty sure) against misrepresentation by others.

What is unreasonable is to claim my "right" in perpetuity to prevent anyone else from using my so-called "IP." My fundamental human right to my intellectual property is upheld by the fact that I'm free to use it myself whenever I want. There is no obvious fundamental right to prevent other people from using it. There are merely some pragmatic reasons for granting exclusivity for a fixed period of time and enforcing it under law.

the Ayn Rand comment stands

If I write a poem, for instance, it would be reasonable for me to claim it as "mine" in perpetuity and bestow on my descendents the right to recite it freely---and collect payment for such recitation if they found anyone willing to pay. They could also claim their ancestor as sole author and defend this authorship in court (I'm pretty sure) against misrepresentation by others. What is unreasonable is to claim my "right" in perpetuity to prevent anyone else from using my so-called "IP."

My fundamental human right to my intellectual property is upheld by the fact that I'm free to use it myself whenever I want. There is no obvious fundamental right to prevent other people from using it.

There are merely some pragmatic reasons for granting exclusivity for a fixed period of time and enforcing it under law.

To put it more clearly, ownership and rights of use are meaningless without exclusivity. If exclusivity is for a fixed period of time, then let's focus on after the time has elapsed. At that point there is no exclusivity, so everyone has the same rights of use, so talk of "in perpetuity" is pointless.

P.S. The notion that the right to recite something can be controlled by the wishes of a long-dead corpse is truly vile.

That's just waffling. There are pragmatic reasons for granting exclusivity of use to the originator of a work as a matter of societal interest, but that has nothing to do with property or some fundamental right of ownership.

P.S. The notion that the right to recite something can be controlled by the wishes of a long-dead corpse is truly vile.

A patent duration of length 0 harms innovation

(7) I honestly have no idea whether or not Tom has written a book titled The Politically Incorrect Guide to Science and filled it with pseudoscientific flapdoodle. I haven't read the book, as both Tom (once) and myself (twice) have pointed out. If that is what Tom has done, though, then he has performed a terrible disservice to the noble cause of Political Incorrectness, and to the rational conservatism that, I believe, is the surest hope for the preservation of our liberties and the continuing health of Western civilization. http://www.nationalreview.com/comment/ootc200601110906.asp

Part of the problem with "intellectual property" is the illusory (and circular) concept of "rivalrousness" that some economists have put forth as a part of the concept of property. Rivalrousness is a sufficient--but not necessary--condition to call "something" property. Unfortunately, most economic arguments conflate sufficiency with necessity--that is, since IP isn't "rivalrous," it therefore cannot possibly be "property." Which leads to two observations about IP:

(1) It's bad rhetoric. The name is just plain awkward and misleading… and generally includes something (trademark) that started out as a consumer-protection statute. That said—

(2) There's a big difference between the idea itself and the right to exploit the idea. The latter is the only true property-like aspect (and I'm not sure it's right to even call that "property," except in the legal-theoretical sense). It's rather similar to the conceptual distinction between a "freehold" and a "leasehold." But that's something law students struggle with for a semester and still don't get right!

I've never thought that to be true. After all, no one ever had a patent for (1) the wheel, (2) the sword, (3) ceramic pottery, (4) the bow and arrow, (5) iron smelting, (6) weaving looms, (7) the sewing needle, (8) the chipped stone handaxe, (9) concrete .... . Of course, patents and intellectual property rights do make sense with the logic of a social structure which produces things solely for their value in exchange, rather than producing things just because people, well, use them.

I'm a little disappointed nobody responded to this question of mine: What if there were a publicly funded department of reverse-engineering aimed at exposing trade secrets? Would that amount to government confiscation of private property?

It's not obvious to me. For instance, if the government were funding corporate spies, that would amount to unreasonable search and seizure and the constitution would come into play. But reverse engineering does not violate privacy rights as far as I can figure. If I sell a product incorporating some trade secrets, I'm counting on my ability to hide the secret from reverse engineering rather than any legal protection.

That said, I'm uncomfortable with government playing a role in reverse engineering for peacetime purposes even if there is an argument for the public good of exposing it after some length of time. Is there any legal argument to support this view?

Point 1: Patent law is not a feature of the universe. It is an artificial constraint imposed by a government in the interest of a public good (innovation). Ditto for copyright with respect to creativity.

Point 2: Both patent and copyright law date from well before modern manufacturing and sound/image reproduction, and have suffered a bit from jury-rigging.

Point 3: Until a few decades ago, the system was working pretty well, with all parties more-or-less satisfied. What changed was the power balance between large corporations and the public at large. This changing power balance was reflected in several ways: the short-staffing of the Patent Office (preventing effective review), the increasing aggressiveness of copyright and patent enforcement, shifts in law, and term extensions.

Point 4: To fix the current abuses, we need not only to fix the damage (for example, review a few million patents for prior art), but we need to rein in the corporations, both with respect to lobbying and rule of law in general. We also need a more sensible and distinct regime for dealing with "patents" on living things and changes thereto.

PaulC,

Since trade secret laws only protect against theft of the trade secret, reverse engineering by teh government should be okay, and I'd be surprised if government funded labs didn't already do this to some extent. A Department of Reverse Engineering would be a collosal waste of money, though, because market competitors will already be conducting focused reverse engineering on any trade secrets that have value and why would anyone want to know the valueless secrets?

Also, property, whether real, personal or intellectual, is not a "fundamental human right" (if such rights exist). All property rights are granted by the government/society/custom, which can define the rights to be perpetual or, in a true commune or Platonic Republic, to be non-existant, or any point in between.

This has been very entertaining. I had started down the road to becoming a registered agent with the long term goal of becoming a patent attorney. There is an excellent summer institute offered out here by the U Washington School of Law, with a free seminar session on one of the weekends.

One of the presenters argued that developing countries should be allowed to ignore patent law, at least for a time, otherwise they will always be dependent on the IP of the more developed countries.

He cited a famous developing nation from the 1700s that notoriously ignored IP rights of the citizens of its more developed neighbors across the Atlantic while rigorously protecting the IP rights of its own citizens. He claims that those thirteen former colonies could never have afforded to take part in the Industrial Revolution if they would have had to pay for the rights to use the IP of the UK and France. I thought he made an excellent case, and those rebutting him could only rely on arguments favoring the letter of the law over the substance.

(Sorry, that was about three years ago, so I cannot recall any names, not even of the summer program.)

The discussion was very interesting to me, because it brought forth the importance of remembering the social costs of IP law (and the policy that shapes it) not just the monetary costs. IP professionals tend to paint themselves as protectors of the free market and the free exchange of ideas, but even this principled Libertarian acknowledges that those things are the servants of people, not their masters.

There has to be a very strong case for why the literal Mickey Mouse laws protecting a certain cartoon character for the next century, or so, serve anyone but Disney Corp.

****

Actually, since this is an evolution website: How do we know that the eternal corporation is not the meme that has evolved to propagate itself into perpetuity and all of us, our governments and our laws, the WTO and the IMF, are just the environmental adaptations it has made to fulfill its evolutionary destiny?

But what do I know: My genes just guide me to the mall and keep me working to pay the credit card bills.

Also, property, whether real, personal or intellectual, is not a "fundamental human right" (if such rights exist).

Ideas behave fundamentally differently than physical property. If I 'steal' your idea, you still possess it, for instance. Therefore I expect it to be treated differently than society/law treats chairs or beer.

(Aside: Justification of property rights is a very difficult matter to do. I've tried and run into all kinds of bizarre problems.)

I notice that Johnson oversteps his expertise when he claims to be an expert in evaluation of arguments. A lawyer is certainly well trained at crafting arguments, but more than that, she is also trained more in something else: the law. An expert at evaluating arguments is a logician, preferably one specializing in the modern argumentation theory stuff developed by Woods and others. (This blends various logics and a study of rhetoric, etc.)

If I 'steal' your idea, you still possess it, for instance.

Discovery Institute Logic 1) Lawyers know more about biology and science then biologists/scientists. 2) Philosophy of Science majors know more about science than scientists who actually do science. 3) Theologians with no biology training or education are as qualified to speak on biology as those who have biology training and a biology degree(s). 4) All you have to do to make any theory scientific is simply insist it is so.

I believe there are a few misconceptions here regarding patents. I am a patent lawyer with an advanced degree in physics.

One, the patent is awarded in exchange for disclosing the invention to the public. There are other requirements--that the invention as described in the claims being novel and not obvious over the prior art--but the grant of the patent is basically a quid pro quo for disclosure.

Two, patents are granted for limited terms because the Constitution only allows them to be granted for limited terms. Article I, section 8, clause 8 (I believe it is).

Three, patent infringement is more akin to tresspass than theft. Actually tresspass is exactly what patent infringement is. I actually disagree that patent infringement itself should be a criminal offense, for the following reason. It is possible that a patent is infringed even if the infringer is unaware of the patent's existence. It strikes me as a bit unfair to hold an infringer criminally liable if he is unaware of the patent's existence. If an infringer is aware that a patent exists that covers his product, the patent owner may be entitled to an award of multiple damages, which should be sufficient punishment. If an injunction is issued against an infringer, and the infringer nonetheless continues to infringe, at that point the infringer may be subject to criminal penalties for failure to obey the injunction, but that is a separate issue.

Four, it is the fact that a patent is awarded to the first to invent, but only if the first to invent files a patent application. The law presumes that the first to file is the first to invent, and the second to file has the burden of proving that he is the first to invent to overcome the presumption. This is in a proceeding within the Patent Office referred to as an "interference."

Finally, yes, I have actually done science. I worked in a cryogenics laboratory in undergrad and grad school, and continued working there during my first two years in law school.

Oh dearie me. One or two people have taken me seriously. My article was a parody, designed to mock those who are qualified in one field but presume to teach (or is it preach?) in another.

I disagree with Mr. Knop that my article is sarcastic; satiric is more my preference.

I apologize to Alan W for knowing what I was talking about. I will try to do better next time. I mean worser.

Most of the discussion revolved around patent law and the definition of property. However interesting, such discussion is beside the point. The article was not about patent law but about those who write about subjects on which they are not experts.

With further regard to Mr. Knop's comment, I recognize that some of the remedies I "proposed" are already the property of the those who value property rights above all others. For the record, I do not defend those remedies; indeed, I think they parody themselves with no help from me.

Finally, nothing Mr. Raj says is inconsistent with what I wrote in my article, but I want to note that when I asked whether "our lawyer friends" had ever done any science, I meant those lawyers who presume to teach biology to biologists. Patent attorneys generally have educations in science or engineering, and I am sure many have also practiced in scientific fields. I did not mean to include them among "our lawyer friends," and I want to make clear that some of my best friends are lawyers.

Matt Young on January 12, 2006 10:47 PM

No problem, but please recognize that some of us lawyers do have an expertise in some science. I would not suggest to lecture on biology as that is not the science in which I had any training except in 9th grade HS biology, but I wouldn't mind critiquing a paper in physics. As far as I can tell, physics isn't of particular interest in evolutionary biology--except possibly for the 2d law of thermodynamics issue (rolls eyeballs) that every once in a while still swells up among the critics of Darwin's theory.

I'll merely use this as an opportunity to mention that tonight Kenneth Miller was a guest on the Colbert Report, a program that follows Jon Stewart's program on the Comedy Channel. I have read a number of Prof. Miller's papers at his miller&devine web site and found them very interesting. But I had never before heard him speak or be interviewed. Recognize that the Colbert Report is a comedy program, and Prof. Miller was appropriately jovial, but Prof. Miller's comments were actually very insightful. BTW, they actually did get into Prof. Miller's Catholicism at the end of the segment, and that part was particularly interesting.

Ed Brayton has praised Prof. Miller's ability to discuss topics in evolutionary biology, and now I see why. The segment wasn't very long, but it is well worth watching. I'm sure that the program will be re-broadcast in the not-too-distant-future, and I would highly recommend that people view it.

One more thing,

Matt Young on January 12, 2006 10:47 PM

Actually it was not evident to me that your piece was a parody, but I come here only every once in a while, so like Prof. Harold Hill (Music Man(, I am unfamiliar with the territory.

To clarify matters, you might consider using one or more of the following HTML tags:

/tic meaning "end of tongue in cheek"

/sarcasm meaning "end of sarcasm" and

/parody meaning "end of parody"

I've actually been using /tic and /sarcasm for some time, but /parody would be a new one for me.

BTW, I am being very tongue in cheek, but I really could not tell from your post whether you actually meant what you had posted. Using these additional HTML tags would help quite a lot.

PaulC wrote, If I put a certain amount of effort and actual monetary cost into the development of a novel invention of high market value, and failed even to recoup that cost plus reasonable compensation for my effort due to others' profiting from the invention, then I would have no hesitation (speaking only for myself) in saying that my livelihood had literally been stolen. It would be little solace to me that some people might consider my entitlement to compensation to be an arbitrary social construct.

Nonsensical. Just because you feel that your livelihood had been stolen is hardly sufficient to establish some kind of ethical right to control your ideas.

For example, many workers lose out by free trade agreements. Should we consider their resulting economic loss a confiscation of "property"?

Another example: if a government declares slavery illegal, should the government compensate the slave owners?

I find this critique of patent law foolish. i am a third year law student preparing for a career in patent law. i have a BS in biotechnology from a large research university, have spent several years as an assistant in molecular biology labs, been published, worked in the pharmaceutical industry for several years as well, and i consider myself scientifically literate, especially in the life sciences. i therefore consider myself very much to be a 'man of science', even if i didn't decide to proceed with getting that PhD after all.

in my review of your critique of patent law, i found several serious misunderstandings of the purpose and nature of both patent and intellectual property law.

1. you misunderstand the background and purpose of granting a patent. prior to the enlightenment period (and even during it in many places), there was no patent law. there was no right to exclusivity for any period - every invention was a trade secret, which resulted in closely guarded secrets benefitting those few families enormously, yes (among the most famous being the family that invented the neonatal forceps used in childbirth), but hindered the spread of technology greatly.

conversely, the lack of protection (or in the case of eli whitney, enforcement) kept many an inventor of simpler inventions from realizing any of the benefit of exclusivity that patent rights confer. so, the concept of a patent, that is, a right to exclusivity for a limited period, developed. most notably, patent and copy rights were listed UNDER THE POWERS OF CONGRESS in Article I § 8. this is critical to your misunderstanding of the property rights associated with patents, as we'll get to later. the long and the short of it in this section, though, is:

(A) the Constitution only grants a patent term "by securing for a limited time" a
(B) "a right to exclusivity", that
(C) is set by Congress.

for policy reasons relating to the desire to spread and cheapen technology in the US, Congress has set the term for 20 yrs. from filing. so you see, patents were never intended to exist in perpetuity. indeed patent rights didn't even have as long a term of exclusivity as copyright from very early on in American jurisprudence. the power conferred by a right of exclusivity in inventions is far greater than that conferred by a copyright, so Congress from the get go decided to confer a shorter period of exclusivity. get it?

2. you misunderstand the nature of the right conferred when a grant of exclusive use for any intellectual property is made. the right is created entirely at the pleasure of Congress; conceivably, Congress could revoke all patent copyright and trademark rights tomorrow; they wouldn't but that illustrates the weakness of your view about the proprietary nature of these rights. they don't have the same sort of permanence as real property and other personal property rights.

consider: if you own land in fee simple absolute, it's yours, and no one can take it away from you (with one exception to be discussed later). if you own a painting fully, it's yours and will go to whomever you want and it will remain something TO BE POSSESSED in perpetuity. however, patent and copyright (but not trademark, for other reasons) EXPIRE after a LIMITED TERM as specified in the Constitution. intellectual property rights are almost always intended to be temporary. indeed, their very creation was to give inventors and authors SOME period of exclusivity that was never guaranteed before. understand?

3. you misunderstand the 5th Amendment's takings clause. that clause generally applies to real property, which cannot be seized for public use (bad US Supreme Court rulings nonwithstanding) without just compensation. it's conceivable that personal property seized should be justly compensated as well (i've just never seen it). but in both those cases the NATURE of the property seized (stuff that will always be considered proprietary) is different from intellectual property rights. they are designed to expire. when they do, the law is simply being effected. there is no constitutional violation, when, indeed, in the same Constitution the very clause granting patent rights implies they'll be for a limited period.

Bah. Proudhon was right. "Property is theft".

;)

Oh dearie, dearie, dearie me - Mr. Brad is taking me seriously, in spite of my Comment 70890 (which see).

What I tried to do was write a satire that initially might take you in, but then get more and more outlandish until finally you realized you'd been had. I was evidently only partly successful.

Indeed, the fear that someone would take me seriously (see Comment 70157 on "IP maximalists") impelled me to write in the final paragraph that I was being silly and knew I was being silly.

Mr. Brad has read my article with more care than I gave it when I wrote it; how ever did he miss the confession in the last paragraph?