Kinsella's post on patent reform: insipid or not?
Stephan Kinsella took exception to some of the remarks on IPBiz about his piece Another Reason to Reform Patent Law: Touch Off A Recession!
Of Kinsella's authority, Kinsella is a registered patent attorney, unlike Mark Lemley.
Kinsella further noted: I would be surprised if you can find any other patent practitioners who have written as much on patent policy as I have--see, e.g., my "Against Intellectual Property", "In Defense of Napster and Against the Second Homesteading Rule," and "There's No Such Thing as a Free Patent" (variously translated into Polish, Spanish, and Georgian, btw) and other pieces collected here and on the Mises Blog, for a starter. Further discussion is found on wikipedia, and one can find a list of
publications.
Kinsella took issue to his article being termed insipid. The title of his post is Another Reason to Reform Patent Law: Touch Off A Recession!, but one has to dig hard in the post to find the demon giving rise to the title: Patent attorney John R. Harris ominously intones about recent and proposed change: “The U.S. has the best patent system in the world. What I'm afraid of is that they are about to throw the baby out with the bathwater. … The new rules are radical. The new legislation is radical. They will cause fewer patents to be issued.” The dots to the title of the post are finally connected (sort of) in paragraph 5 (of six paragraphs total): Anyway, Harris goes so far as to raise the possibility of a patent-reform-caused depression: “If we're about to go into a recession and all of a sudden you kill innovation in the country, we might not have a recession. We might have a depression." Whatever you do, don't lower money-supply growth and easy credit, and don't reform patent law--we might have a recession!
Somehow, Kinsella never manages to talk about currently-pending issues in patent reform, such as post-grant review (opposition), apportionment of damages, and first-to-file, instead choosing to whip up on poor John R. Harris to embody "hyperbolic opposition to patent reform efforts." Thus, in addition to the diffuse structure of the post (i.e., the title theme shows up in paragraph five), the post never gets to the substantive issues currently in patent reform. For someone actually interested in patent reform, that makes the post insipid (bland). It was "interesting" only to the extent it further illustrates how little solid content there really is among the patent reform people.
Apart from trashing Harris, Kinsella goes after patent lawyers generally: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments “radical” so that any really radical proposals will be dismissed out of hand. IPBiz seems to recall that AIPLA and IPO favor most of patent reform. In "Who You Gonna Call?" (Intellectual Property Today, March 2007, page 8), patent attorney Charles Gholz basically assumed post-grant opposition was a done-deal and was pointing out how interference attorneys would be the best (only?) attorneys to handle post-grant review. Gholz was NOT terming post-grant review or first-to-file as radical. Gholz invited people to respond to the March 07 article, and LBE wrote and submitted response in the beginning of April 07, which IPT did not publish until September and to which Gholz never responded. (IPFrontline did publish a version on April 4, establishing a response was timely made).
Paragraph 2 of the Kinsella post noted: the U.S. Patent and Trademark Office has proposed a new set of rules that opponents say would dramatically limit the ability of companies to create new products and protect them under the law. The main justification for the new rules given by the USPTO was to reduce backlog. Kinsella's reply included: Anyway--where did I argue that the reform would reduce backlog? Kinsella earlier had demonized the opponents to the rules: opponents say would dramatically limit the ability of companies to create new products and protect them under the law. but Kinsella failed to note that (some) opponents to the rules oppose the rules because they won't achieve their objective, and simply burden the system. See for example comments on continuation practice. Kinsella did NOT include the objective reasons why people oppose the new rules, instead trying to paint the opponents as crazies by reporting only SOME commentary on the topic. Like IPBiz says, it's what one omits to say that is frequently most revealing.
Similarly, IPBiz does disagree with the assertion that opposition to patent reform is increasingly hyperbolic. There are SOME people that have intense feelings about this. HOWEVER to paint the whole picture in this way is like saying the advocates of patent reform are embodied by Mike at Techdirt. Mike exists, but he is not the whole picture.
Of --What does this comment have to do with people "like me" not "responding" to "some of you" pointing to bad aspects of patent reform?-- why don't you respond to the objective arguments against patent reform instead of demonizing poor old John Harris?
Of --First, the purported official rationale for the patent system is not merely to encourage disclosure. It's also to encourage innovation itself. I'm not sure how you just assert that the latter purpose is not as important as the former one.
Second, talk about what "the" purpose of a patent system is, is a bit question-begging; this type of language seems to assume that the official explanation is the truth. Sure, the state and its supporters might give a reason for a policy. -- IPBiz has no idea what Kinsella means by "purported official rationale." The system does what it does: in return for a certain kind of disclosure an inventor gets the right to exclude for so many years. That's it. Period. The USPTO never asks how the invention might be commercially implemented ("innovation.") That's for capitalism and free markets. Kinsella, and others, try to read "innovation" into a system that is not about innovation. It's about disclosure of inventions and right to exclude. It's not the only way one could do business. But the Venetians figured out it's preferable to the "no patent" way about 500 years ago.
IPBiz had previously referenced to a different Mises post as claptrap, but that engendered no response.
Of Kinsella's authority, Kinsella is a registered patent attorney, unlike Mark Lemley.
Kinsella further noted: I would be surprised if you can find any other patent practitioners who have written as much on patent policy as I have--see, e.g., my "Against Intellectual Property", "In Defense of Napster and Against the Second Homesteading Rule," and "There's No Such Thing as a Free Patent" (variously translated into Polish, Spanish, and Georgian, btw) and other pieces collected here and on the Mises Blog, for a starter. Further discussion is found on wikipedia, and one can find a list of
publications.
Kinsella took issue to his article being termed insipid. The title of his post is Another Reason to Reform Patent Law: Touch Off A Recession!, but one has to dig hard in the post to find the demon giving rise to the title: Patent attorney John R. Harris ominously intones about recent and proposed change: “The U.S. has the best patent system in the world. What I'm afraid of is that they are about to throw the baby out with the bathwater. … The new rules are radical. The new legislation is radical. They will cause fewer patents to be issued.” The dots to the title of the post are finally connected (sort of) in paragraph 5 (of six paragraphs total): Anyway, Harris goes so far as to raise the possibility of a patent-reform-caused depression: “If we're about to go into a recession and all of a sudden you kill innovation in the country, we might not have a recession. We might have a depression." Whatever you do, don't lower money-supply growth and easy credit, and don't reform patent law--we might have a recession!
Somehow, Kinsella never manages to talk about currently-pending issues in patent reform, such as post-grant review (opposition), apportionment of damages, and first-to-file, instead choosing to whip up on poor John R. Harris to embody "hyperbolic opposition to patent reform efforts." Thus, in addition to the diffuse structure of the post (i.e., the title theme shows up in paragraph five), the post never gets to the substantive issues currently in patent reform. For someone actually interested in patent reform, that makes the post insipid (bland). It was "interesting" only to the extent it further illustrates how little solid content there really is among the patent reform people.
Apart from trashing Harris, Kinsella goes after patent lawyers generally: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments “radical” so that any really radical proposals will be dismissed out of hand. IPBiz seems to recall that AIPLA and IPO favor most of patent reform. In "Who You Gonna Call?" (Intellectual Property Today, March 2007, page 8), patent attorney Charles Gholz basically assumed post-grant opposition was a done-deal and was pointing out how interference attorneys would be the best (only?) attorneys to handle post-grant review. Gholz was NOT terming post-grant review or first-to-file as radical. Gholz invited people to respond to the March 07 article, and LBE wrote and submitted response in the beginning of April 07, which IPT did not publish until September and to which Gholz never responded. (IPFrontline did publish a version on April 4, establishing a response was timely made).
Paragraph 2 of the Kinsella post noted: the U.S. Patent and Trademark Office has proposed a new set of rules that opponents say would dramatically limit the ability of companies to create new products and protect them under the law. The main justification for the new rules given by the USPTO was to reduce backlog. Kinsella's reply included: Anyway--where did I argue that the reform would reduce backlog? Kinsella earlier had demonized the opponents to the rules: opponents say would dramatically limit the ability of companies to create new products and protect them under the law. but Kinsella failed to note that (some) opponents to the rules oppose the rules because they won't achieve their objective, and simply burden the system. See for example comments on continuation practice. Kinsella did NOT include the objective reasons why people oppose the new rules, instead trying to paint the opponents as crazies by reporting only SOME commentary on the topic. Like IPBiz says, it's what one omits to say that is frequently most revealing.
Similarly, IPBiz does disagree with the assertion that opposition to patent reform is increasingly hyperbolic. There are SOME people that have intense feelings about this. HOWEVER to paint the whole picture in this way is like saying the advocates of patent reform are embodied by Mike at Techdirt. Mike exists, but he is not the whole picture.
Of --What does this comment have to do with people "like me" not "responding" to "some of you" pointing to bad aspects of patent reform?-- why don't you respond to the objective arguments against patent reform instead of demonizing poor old John Harris?
Of --First, the purported official rationale for the patent system is not merely to encourage disclosure. It's also to encourage innovation itself. I'm not sure how you just assert that the latter purpose is not as important as the former one.
Second, talk about what "the" purpose of a patent system is, is a bit question-begging; this type of language seems to assume that the official explanation is the truth. Sure, the state and its supporters might give a reason for a policy. -- IPBiz has no idea what Kinsella means by "purported official rationale." The system does what it does: in return for a certain kind of disclosure an inventor gets the right to exclude for so many years. That's it. Period. The USPTO never asks how the invention might be commercially implemented ("innovation.") That's for capitalism and free markets. Kinsella, and others, try to read "innovation" into a system that is not about innovation. It's about disclosure of inventions and right to exclude. It's not the only way one could do business. But the Venetians figured out it's preferable to the "no patent" way about 500 years ago.
IPBiz had previously referenced to a different Mises post as claptrap, but that engendered no response.
posted by Lawrence B. Ebert at 5:42 AM
2 Comments:
Mr. Ebert,
A few comments on your reply.
"Kinsella took issue to his article being termed insipid."
That's not really my objection. You are welcome to find my comments boring or uninteresting. You are probably not an Austrian economist or libertarian, after all. The primary purpose of my post was because Harris' comment about recession caught my eye. Austrian economists have a particular view of recession, so that's why I blogged it there. In the Austrian view, recessions are nothing but the inevitable collapse of an artificial boom which is itself created by a central bank inflating the money supply. When the money supply is inflated, it causes over-investment in certain capital projects because the interest rate is driven down artificially. This is really a mal-investment that leads to inefficiencies and unsustainable investments. Sooner or later it has to crash, like a drug user on a high. The particular thing that touches off a recession is not really relevant; and in fact, a recession is not a bad thing--it's a good thing. It's what restores health back to the economy after the artificial boom has skewed it. The quicker the recession is allowed to happen, the better--the sooner the economy gets back on track, and the less severe it is. When the fed staves the recession (that they made inevitable by their earlier boom) off by further money inflation (lowering interest rates) they delay it and make its inevitable extent more severe.
Harris' idea that patent reform could cause a recession is confused for several reasons. First, he seems to think a recession is a bad thing. It's not. Second, he seems to think that patent reform would kill innovation. It would not; even abolishing the patent system would not kill innovation.
"Somehow, Kinsella never manages to talk about currently-pending issues in patent reform, such as post-grant review (opposition), apportionment of damages, and first-to-file, instead choosing to whip up on poor John R. Harris to embody "hyperbolic opposition to patent reform efforts.""
So? Why is this a criticism? Why am I obligated to "talk about" the details of patent reform, in a short blog post highlighting a somewhat amusing misconception of the business cycle by a patent attorney?
"Thus, in addition to the diffuse structure of the post (i.e., the title theme shows up in paragraph five), the post never gets to the substantive issues currently in patent reform. For someone actually interested in patent reform, that makes the post insipid (bland)."
Our argument here is actually a bit insipid. Here we are mustering arguments about whether my post was bland. Let's move on and just stick to substance.
"It was "interesting" only to the extent it further illustrates how little solid content there really is among the patent reform people."
? I don't see how it illustrates this at all; I've written at length elsewhere on the economic and political foundations and justifications of patent law.
"Apart from trashing Harris,"
I did not trash Mr. Harris; I was respectful to him. I simply believe his comments are exaggerated and illustrate exaggeration among opponents of patent reform (and incidentally betray a view of economics different than that held by us Austrian economists--hence my post aboug it on an Austrian economics blog).
"Kinsella goes after patent lawyers generally: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments “radical” so that any really radical proposals will be dismissed out of hand. IPBiz seems to recall that AIPLA and IPO favor most of patent reform."
Mr. Ebert: do you deny that most patent lawyers are in favor of the patent system? That most patent lawyers are opposed to *radical* weakening of patent right? That is my point. The details of the current legal changes are really "insipid", to me. They distract from fundamental issues.
"In "Who You Gonna Call?" (Intellectual Property Today, March 2007, page 8), patent attorney Charles Gholz basically assumed post-grant opposition was a done-deal and was pointing out how interference attorneys would be the best (only?) attorneys to handle post-grant review. Gholz was NOT terming post-grant review or first-to-file as radical."
Why would he? This is merely tinkering with the system. It's just a minor detail. It won't affect patent attorneys very much.
"Paragraph 2 of the Kinsella post noted: the U.S. Patent and Trademark Office has proposed a new set of rules that opponents say would dramatically limit the ability of companies to create new products and protect them under the law. The main justification for the new rules given by the USPTO was to reduce backlog. Kinsella's reply included: Anyway--where did I argue that the reform would reduce backlog? Kinsella earlier had demonized the opponents to the rules: opponents say would dramatically limit the ability of companies to create new products and protect them under the law. but Kinsella failed to note that (some) opponents to the rules oppose the rules because they won't achieve their objective,"
? I quite agree that some people commenting on the rule/law changes oppose the changes on the ostensible grounds that they will backfire or not achieve their stated objectives. Sure. I never denied this. I think some patent attorneys are even sincere; though I believe many, if not most, are using this objection at least partially as an excuse to resist any significant reform.
I, myself, am not even strongly in favor of patent reform, for similar reasons--as I stated, the proposed change does not *unambiguously* weaken patent rights. I do not trust the Congress to do anything right, which is why I oppose the patent act in the first place--who made Congress God?
"Kinsella did NOT include the objective reasons why people oppose the new rules, instead trying to paint the opponents as crazies by reporting only SOME commentary on the topic."
I did not mean to imply all opposition to the law changes is hysterical or based solely on self-interest. I was criticizing the arguments that *are* hyperbolic. Some are, would you not agree?
"Like IPBiz says, it's what one omits to say that is frequently most revealing."
I've written about IP policy more than just about any patent attorney I know of. I've "omitted" far less than others.
"Similarly, IPBiz does disagree with the assertion that opposition to patent reform is increasingly hyperbolic."
Finally--a substantive disagreement.
"There are SOME people that have intense feelings about this. HOWEVER to paint the whole picture in this way is like saying the advocates of patent reform are embodied by Mike at Techdirt. Mike exists, but he is not the whole picture."
What can I say. I'm a practicing patent attorney and active in patent law circles and in policy discussions about all this. My evidence may be anecdotal but there's nothing else I can go on. I've seen a good deal of hysterical and exaggerated wailing about the changes. I could quote several. If your personal impression is different, so be it.
"Of --What does this comment have to do with people "like me" not "responding" to "some of you" pointing to bad aspects of patent reform?-- why don't you respond to the objective arguments against patent reform instead of demonizing poor old John Harris?"
I was not demonizing or trashing Mr. Harris. I commented on a comment of his, on an Austrian economics blog, since it seemed to commit an error in economic reasoning and also to illustrate exaggerated arguments given to oppose patent reform. Do you agree that Mr. Harris's comments were a touch exaggerated?
As for responding to the "objective arguments" against patent reform--I have, and am working on a lengthy article now, where I argue that the current reforms are all minor, rearranging deck chairs on the Titanic... I advocate more radical reform if mutually agreed upon goals are to be achieved. In any event, I have explored extensively in my writing more fundamental issues regarding patent law. I'm interested in whether patent law itself is justified; the particular details of current reform or anti-reform efforts are just a distraction from serious examination of more fundamental issues.
It is my view that most patent lawyers prefer to dicker about such details, because a presupposition of such debate is that we will have a patent system. It is this premise that they do not wish to debate or defend. Do you disagree with me here?
"Of --First, the purported official rationale for the patent system is not merely to encourage disclosure. It's also to encourage innovation itself. I'm not sure how you just assert that the latter purpose is not as important as the former one.
Second, talk about what "the" purpose of a patent system is, is a bit question-begging; this type of language seems to assume that the official explanation is the truth. Sure, the state and its supporters might give a reason for a policy. -- IPBiz has no idea what Kinsella means by "purported official rationale.""
The *stated* purpose of a given law--the purpose stated in the Constitution, say; or given by legislators who enact the law. Etc. They can *say* what they purpose is; that does not make it so. To blindly accept the word of a bunch of Congresscritters--inherently criminal people--does not seem to make sense to me.
"The system does what it does: in return for a certain kind of disclosure an inventor gets the right to exclude for so many years. That's it. Period. The USPTO never asks how the invention might be commercially implemented ("innovation.")"
This is not a very good argument, IMO. The reason for having such a system, according to many of its advocates, is so that innovators will have an incentive to innovate. It of course does not guarantee a given invention is valuable. But the idea is that those that are valuable get created because the inventor has some monopoly on it; that these innovations would otherwise not get created.
I think this argument is fallacious, but it is fairly coherent at least.
"That's for capitalism and free markets. Kinsella, and others, try to read "innovation" into a system that is not about innovation. It's about disclosure of inventions and right to exclude."
I have no idea what the patent system is "about". It's not "about" anything. It's a set of rules enforced by the state, which rules have certain effects on human action and the economy. The question for me is whether it's justified or not.
In any event, to deny that one widely trumpeted effect of the patent system is to encourage innovation seems, to me, crankish.
Anyway, your argument is not one I have a quarrel with. After all, it is my view that the patent system is *not* justified on utilitarian, wealth-maximization grounds--that is, I disagree with IP proponents who believe that the "costs" of the patent system are outweighed by its purported benefits, such as increased innovation or even increased disclosure. If I read you right, you agree with me that the patent system does not increase innovation. Good. That is one less purported benefit. So in your view, I suppose, the value accruing from increased invention *disclosure* is greater than the costs of the patent system (otherwise there is no net benefit). Is this correct? If so, could you please give me a rough estimate, in dollar terms, of the costs, and disclosure-related benefits, of the patent system? I can do the math after that to figure out the net value of the patent system. I mean, is it a dollar? A trillion dollars? Negative billion?
"It's not the only way one could do business. But the Venetians figured out it's preferable to the "no patent" way about 500 years ago."
And this, it seems to me, is what passes for serious discussion of fundamental patent issues by advocates of IP. Just hand-waving. No desire to explore the issue.
Do you have any serious response to any of my articles laying out serious problems with pro-IP arguments? In Defense of Napster and Against the Second Homesteading Rule; Against Intellectual Property; or There's No Such Thing as a Free Patent? I'd love to see a coherent defense of IP--after all, it's my profession too. It's why I searched for a justification of it--and how I finally discovered that IP is actually anti-property, anti-capitalist, unjustified.
Speaking of Venetians ...
I believe the Let's-Have-No-Patents experiment has been performed in many a communist state.
For example, back in the good old Maoist days of Red China, the "innovation" was just pouring out faster than the Yangtze River.
So yes, you Mises misers are right on the mark with your astute observations. The Flying Spaghetti Market always provides. We don't need no darn patent laws. Innovation is just the natural outcome of a no holds barred, free market system. [/sarcasm]
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