Saturday, December 26, 2009

Arguing for free "green patents": a twice-told story?

In an opinion piece in the Christian Science Monitor titled In a Wikipedia age, should all ideas be free?, William F. Shughart II (an economics professor at UMiss) excoriates Lawrence Lessig, a law prof now at Harvard:

While a ruling in Bilski and Warsaw v. Kappos isn't expected until next spring, let's hope the court doesn't fall prey to the arguments of Harvard Law School professor Lawrence Lessig and other supporters of the "open source" movement in computer software. They contend that intellectual property rights – which extend 20 years beyond the date a patent is issued – erect barriers to technological progress, discouraging collaboration and slowing economic growth.

IPBiz notes that the current patent term is NOT 20 years from the date of patent ISSUE, nor has the patent term ever been this.

Elsewhere, Shughart writes:

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.

IPBiz notes that patents, as the very term "patent" (as distinct from latent) implies, expose new ideas publicly. They don't "slow down" the diffusion of new ideas; they enhance the diffusion of new ideas. Yes, one cannot make, use, or sell something within the scope of an issued patent claim of another, but one can negotiate with the owner to do so. One can also use the publicly disclosed information to design around the claimed invention, likely making a new invention.

Shughart writes of Dickens:

It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.

Dickens visited the United States twice. Shughart is referring to his second visit which began in Boston on November 19, 1867. As Wikipedia notes, "On 23 April [1868], he boarded his ship to return to Britain, barely escaping a Federal Tax Lien against the proceeds of his lecture tour." Following his return to Britain, Dickens continued to give readings ["Between 1868 and 1869, Dickens gave a series of "farewell readings" in England, Scotland, and Ireland, until he collapsed on 22 April 1869." ]

It is the first visit of Dickens to America which evokes the issue of free green patents. During his first visit to America in 1842, Dickens argued for copyright laws. In a post titled Dickens's 1842 Reading Tour: Launching the Copyright Question in Tempestuous Seas , Philip V. Allingham discusses the copyright issues, including the text:

Dickens showed great courage but little tact in assailing American public opinion on this vexing matter while the United States was paying him honours worthy of a national liberator. That he had not mentioned this issue in advance meant that his adoring audiences, taken by surprise, felt chagrined by the criticisms of this obviously mercenary young upstart who had come to their shores to take their money at the theatre door and again in the bookshop.


The opposition maintained that literature, like all imaginative creations, should not be regulated by law and commerce, that undercapitalized nations, without public libraries, needed inexpensive access to ideas and entertainment that they could not generate themselves or afford to purchase at high rates, and that the free availability to publishers of an author's works did more to advance his reputation and long-term earnings than the restricted circulation created by the higher price of books on which a copyright royalty was paid.

IPBiz notes that the argument in bold, made circa 1842, is basically the same argument about "green patents" made during Copenhagen 2009.

Dickens had an answer for that in 1842:

A week later, in Hartford, he argued that a native American literature would flourish only when American publishers were compelled by law to pay all writers their due, rather than being able to publish the works of any foreign author for free, a bad custom which only served to discourage literary production by American citizens. [from Allingham post]

Dickens had problems with copyists at home in Britain. Following his return from his first American visit, Dickens went after these copyrists, with little success:

His first great opportunity came with the publication of A Christmas Carol on 19 December, 1843, for within two weeks Peter Parley's Illuminated Library brought out a 'condensed' and 're-originated' edition entitled A Christmas Ghost Story, selling at a mere penny a piece. Two days later, on January 8th, 1844, Dickens filed for a court injunction to halt publication; the injunction granted on the 10th, he then set out to sue Parley's owners, Richard Egan Lee and Henry Hewitt. His victory was Pyrrhic, for the piratical firm declared bankruptcy, leaving Dickens to pay his court costs of £700, against a profit of only £230 on the sale of six thousand copies by the end of 1843, according to Forster's Life of Charles Dickens, but likely closer to £130, according to Peter Ackroyd. At this point in his life, copyright was no mere abstract question of business ethics for Dickens as images of the debtors' prison swam before his eyes. [from the Allingham post]

***Also, of Lessig

Bilski: which elements from Eldred will return?

Stanford's Lessig appears in the Trentonian on September 3

Cyberlaw expert to talk about copyrights at BGSU [ Lawrence Lessig, faculty director of Harvard Law School’s Edmond J. Safra Foundation Center for Ethics, will discuss “From Copyright to Corruption and Back Again.” ]

**In passing, the term -- re-originated --, used back in 1843, evokes the term used by Masnick in the 21st century, --re-imagined--.

**Of the past, from the Commercial Appeal in June 2009:

Bolivia, the Philippines and Indonesia called for the exclusion of patents over such [green] technologies, while Canada, Switzerland and the U.S. said they want to see strong intellectual property rights retained. The less-developed countries maintain that only through exclusion of patent rights could they be induced to quickly reduce emissions so the global problem of climate change is solved. Bolivia suggested that some patents lead to monopolies.

**Also, from Beijing, 8 November 2008, session B2 High-level conference on Climate Change:
Technology Development and Technology transfer

Sharing patents that protect the environment is a way
–Address a wide range of challenges and threats to our
–Foster new collaboration and innovation

A sub-committee of the United Nations Framework Convention on Climate Change,
called the Ad Hoc Working Group on Long-Term
Cooperative Action (AWG-LCA) has been working on draft proposed terms for
administering the long-term implementation of the convention’s objectives.
The proposed terms will address numerous issues pertaining to global warming,
including provisions that could potentially impact the intellectual property rights of global

While the convention has acknowledged the fact that patent rights play a role in crafting
the solutions needed to address climate change, it has also specifically noted the view
that patents can be a barrier to technology transfer.

The June 2009 negotiating text of the AWG-LCA specifically calls for a prohibition on patents or for the compulsory licensing of patents on basic biotechnology inventions.

[See Eye On Copenhagen — Implications for 'Green IP'


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