4 ms·

Reducing the Cost of IP Law

22 points by icey 17y ago

d4ft 17y ago
Hard to take someone who calls himself an "Austro-Anarchist Libertarian Legal Theor[ist]" and went to a law school I've never heard of (note: I am a law student now) seriously. From a legal perspective, this guy's political biases show through. Editor of the liberatarian papers? Check. In the end, I thought it was a long article that is 1) fanciful and 2) a rehash of prior ideas.
- muerdeme 17y ago
  Why exactly does Kinsella's political philosophy matter? He is upfront about what he believes, so I don't think he's trying to deceive anyone. I also don't think that his political orientation means anything "from a legal perspective." Meaningful patent reform would almost certainly take place in Congress, not in the courts. Also, although you may still believe that his conclusions are fanciful, I think Kinsella is actually trying to be practical. Instead of arguing that IP shouldn't exist at all, he is advocating specific reforms that he believes would reduce the net costs of our patent system to society. I don't find his suggestions fanciful, because the US has already moved in the direction Kinsella advocates for at least patent publications.
  - d4ft 17y ago
    I'm sorry I got to this so late. I realize noone will probably read this, and I only stumbled upon because I have had a few beers and was browsing old posts. In any case, I have a couple qualms. First, political philosophy does matter. Patents is about maximizing "progress" in the useful arts and sciences. Thus, depending on what you believe politically, you will have different views about how to accomplish this. Further, in reality, most patent reform does take place in courts. For instance, the Supreme Court mandated the processing of patent appeals in the federal circuit. Why? Because this way we could have a fairly uniform set of decisions from a fairly specialized court about what the law means. Much like corporate law in DE, one could consider a "common law" approach, whereby the courts would attempt to find a set of laws that would best promote the goals described above. In Federal Circuit jurisprudence, there have been many attempts to reconcile and improve the patent system but they have been reluctant to make broad changes like those described in the article. The reasoning goes that the courts are afraid (I think with good reason) about what might happen. I believe this is one contributing reason. Another might be that the court is fairly conservative (not a lot of free market easterbrook-posner type guys). I do agree however that large scale reform would necessitate legislative action, and perhaps some of the authors points would require this. Nonetheless, I think there is about 0% chance that many of these changes happen via the legislature. Examining the past, much, if not all the change, after the patent act (which was passed in I think 1952), has been judicially mandated and described. Legislators dont want to touch this for the same reason. The system works ok (not great), other countries copy us, and if we change it, who knows whats going to happen. Maybe this is a little bit of a rant, and I apologize for being terse in my initial description. I do believe though, that the author does himself a disservice by taking describing himself in the way he does, because if he was proposing a unique and passable patent reform, it would be hard for 1) politicians, 2) academics, and 3) legal professionals to take him seriously. Thanks for reading, assuming anyone makes it this far!
- kiba 17y ago
  He is a practicing patent lawyer. I doubt a patent lawyer would be so crazy to argue against a system that give him his job without good reasons.
- camccann 17y ago
  I didn't vote you down, and please don't read this as an attack, it's an honest question: Yes, he obviously has a strong opinion on the matter, because it's a direct and obvious consequence of his ethical worldview. Is this really a bad thing? Do you see a distinction between "political bias" and "ethical belief"? These aren't necessarily issues with a single objective answer, and I don't understand the tendency to dismiss ethical stances as being "political" or "impractical", typically in favor of some ambiguously "pragmatic" status-quo. How would you rather see things work?
muerdeme 17y ago
One thing that struck me reading this article is that innovation seems to have outgrown the one size fits all nature of the patent system. Given the huge difference in capital expenditures required between engineering software and pharmaceuticals, why are they treated the same?
- kiba 17y ago
  You may want to take a look at Against Intellectual Monopoly. http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm http://levine.sscnet.ucla.edu/general/intellectual/againstfi... The thesis is that all patent and copyright, contrary to popular belief, does not actually increase innovation. I have mentioned this book on several occasions but it seem that hackers continue to remain ignorant of books like this.
grellas 17y ago
Most startups need to have barriers to entry if they are to have the capacity to sustain themselves beyond the initial phase of their existence. This is one of the first questions that potential investors will ask any founding team: assuming that you initially succeed, what is to prevent big players from attacking you. More often than not, the answer lies in the IP protections that protect such a startup's development efforts, whether this takes the form of patents, copyrights, or whatever. It is true that such startups can also be prejudiced by threats of infringement from large companies and in this sense IP rights can potentially work against them. In my experience, though, for every oddball situation (easily less than 1%) in which IP rights threaten a startup, there are many, many situations where IP rights work in their favor and in which they would clearly be prejudiced if such rights were scaled back or eliminated. Thus, from my subjective perspective, I can attest that IP rights are a spur to innovation because many of the startups I have represented would not have been able either to start or to fund themselves without a business model that ultimately depended on proprietary advantages afforded by IP rights. Perhaps they are wrong about what does or does not promote the best interests of their companies but, in the real world, this is overwhelmingly how most founders see IP in relation to their companies. Can't speak to the broader societal or cost/benefit issues raised by the author (and would agree that patents in particular are in need of reform). By the way, as I do not do patent filings, this is not a livelihood issue for me - just my viewpoint as a lawyer representing startups for over a quarter century in Silicon Valley.
- kiba 17y ago
  (and would agree that patents in particular are in need of reform) That's not the correct characterization of his position. His position is that of abolishing patents and copyrights in accordance to libertarian ethic theory. However, from a practical perspective, he notes that abolishing IP laws is not possible.
- greyfade 17y ago
  What would the big players attack you with if they didn't have their massive patent portfolios? Why would a startup have to worry about being attacked if patents were a non-issue? It's a serious question.
camccann 17y ago
That's actually a refreshingly well-thought-out treatment of the subject from someone who has (and says as much up front) a massive ideological bias against the whole concept. I wish more people with "fringe" political opinions were that sensible, maybe then we'd actually stand a chance of seeing politics be about something other than petty Team A vs. Team B squabbling.

22 points by icey 17y ago

d4ft 17y ago

Hard to take someone who calls himself an "Austro-Anarchist Libertarian Legal Theor[ist]" and went to a law school I've never heard of (note: I am a law student now) seriously. From a legal perspective, this guy's political biases show through. Editor of the liberatarian papers? Check. In the end, I thought it was a long article that is 1) fanciful and 2) a rehash of prior ideas.

muerdeme 17y ago
Why exactly does Kinsella's political philosophy matter? He is upfront about what he believes, so I don't think he's trying to deceive anyone. I also don't think that his political orientation means anything "from a legal perspective." Meaningful patent reform would almost certainly take place in Congress, not in the courts. Also, although you may still believe that his conclusions are fanciful, I think Kinsella is actually trying to be practical. Instead of arguing that IP shouldn't exist at all, he is advocating specific reforms that he believes would reduce the net costs of our patent system to society. I don't find his suggestions fanciful, because the US has already moved in the direction Kinsella advocates for at least patent publications.
- d4ft 17y ago
  I'm sorry I got to this so late. I realize noone will probably read this, and I only stumbled upon because I have had a few beers and was browsing old posts. In any case, I have a couple qualms. First, political philosophy does matter. Patents is about maximizing "progress" in the useful arts and sciences. Thus, depending on what you believe politically, you will have different views about how to accomplish this. Further, in reality, most patent reform does take place in courts. For instance, the Supreme Court mandated the processing of patent appeals in the federal circuit. Why? Because this way we could have a fairly uniform set of decisions from a fairly specialized court about what the law means. Much like corporate law in DE, one could consider a "common law" approach, whereby the courts would attempt to find a set of laws that would best promote the goals described above. In Federal Circuit jurisprudence, there have been many attempts to reconcile and improve the patent system but they have been reluctant to make broad changes like those described in the article. The reasoning goes that the courts are afraid (I think with good reason) about what might happen. I believe this is one contributing reason. Another might be that the court is fairly conservative (not a lot of free market easterbrook-posner type guys). I do agree however that large scale reform would necessitate legislative action, and perhaps some of the authors points would require this. Nonetheless, I think there is about 0% chance that many of these changes happen via the legislature. Examining the past, much, if not all the change, after the patent act (which was passed in I think 1952), has been judicially mandated and described. Legislators dont want to touch this for the same reason. The system works ok (not great), other countries copy us, and if we change it, who knows whats going to happen. Maybe this is a little bit of a rant, and I apologize for being terse in my initial description. I do believe though, that the author does himself a disservice by taking describing himself in the way he does, because if he was proposing a unique and passable patent reform, it would be hard for 1) politicians, 2) academics, and 3) legal professionals to take him seriously. Thanks for reading, assuming anyone makes it this far!
kiba 17y ago
He is a practicing patent lawyer. I doubt a patent lawyer would be so crazy to argue against a system that give him his job without good reasons.
camccann 17y ago
I didn't vote you down, and please don't read this as an attack, it's an honest question: Yes, he obviously has a strong opinion on the matter, because it's a direct and obvious consequence of his ethical worldview. Is this really a bad thing? Do you see a distinction between "political bias" and "ethical belief"? These aren't necessarily issues with a single objective answer, and I don't understand the tendency to dismiss ethical stances as being "political" or "impractical", typically in favor of some ambiguously "pragmatic" status-quo. How would you rather see things work?

muerdeme 17y ago

One thing that struck me reading this article is that innovation seems to have outgrown the one size fits all nature of the patent system. Given the huge difference in capital expenditures required between engineering software and pharmaceuticals, why are they treated the same?

kiba 17y ago
You may want to take a look at Against Intellectual Monopoly. http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm http://levine.sscnet.ucla.edu/general/intellectual/againstfi... The thesis is that all patent and copyright, contrary to popular belief, does not actually increase innovation. I have mentioned this book on several occasions but it seem that hackers continue to remain ignorant of books like this.

grellas 17y ago

Most startups need to have barriers to entry if they are to have the capacity to sustain themselves beyond the initial phase of their existence. This is one of the first questions that potential investors will ask any founding team: assuming that you initially succeed, what is to prevent big players from attacking you. More often than not, the answer lies in the IP protections that protect such a startup's development efforts, whether this takes the form of patents, copyrights, or whatever. It is true that such startups can also be prejudiced by threats of infringement from large companies and in this sense IP rights can potentially work against them. In my experience, though, for every oddball situation (easily less than 1%) in which IP rights threaten a startup, there are many, many situations where IP rights work in their favor and in which they would clearly be prejudiced if such rights were scaled back or eliminated. Thus, from my subjective perspective, I can attest that IP rights are a spur to innovation because many of the startups I have represented would not have been able either to start or to fund themselves without a business model that ultimately depended on proprietary advantages afforded by IP rights. Perhaps they are wrong about what does or does not promote the best interests of their companies but, in the real world, this is overwhelmingly how most founders see IP in relation to their companies. Can't speak to the broader societal or cost/benefit issues raised by the author (and would agree that patents in particular are in need of reform). By the way, as I do not do patent filings, this is not a livelihood issue for me - just my viewpoint as a lawyer representing startups for over a quarter century in Silicon Valley.

kiba 17y ago
(and would agree that patents in particular are in need of reform) That's not the correct characterization of his position. His position is that of abolishing patents and copyrights in accordance to libertarian ethic theory. However, from a practical perspective, he notes that abolishing IP laws is not possible.
greyfade 17y ago
What would the big players attack you with if they didn't have their massive patent portfolios? Why would a startup have to worry about being attacked if patents were a non-issue? It's a serious question.

camccann 17y ago

That's actually a refreshingly well-thought-out treatment of the subject from someone who has (and says as much up front) a massive ideological bias against the whole concept. I wish more people with "fringe" political opinions were that sensible, maybe then we'd actually stand a chance of seeing politics be about something other than petty Team A vs. Team B squabbling.