Re: Patent breakthrough- maybe we don't need them after all?

From: James Wetterau (
Date: Thu Mar 16 2000 - 08:50:40 MST

"Michael S. Lorrey" says:
> James Wetterau wrote: ...
> > "Michael S. Lorrey" says:> > > James Wetterau wrote: > > ...
> > > > James Swayze says: ...
> > > > > In a free capitalist society shouldn't an individual profit from
> > > > > their hard won intellectual efforts?
> > > >
> > > > No. In a free capitalist society, people should profit from the free
> > > > exchange of goods or services with other individuals, or any other
> > > > freely entered profitable contract or dealing. By contrast, if you
> > > > obtain a patent, you prevent me, via a state granted monopoly on a
> > > > particular implementation of an idea, from using my own intelligence,
> > > > labor and industry to similarly profit.
> > >
> > > The problem is that it is pretty difficult for the second guy to prove
> > > he never had any input from the first.
> >
> > How is that my problem? That does not justify using the machinery of
> > the state to prohibit me from using my own intelligence and labor as I
> > see fit. That's what your use of a patent to restrict me does.
> No, it doesn't. You can even go to the patent office, buy a copy of the paten
> file, take it home, and build the device or whatever. Its perfectly legal, yo
> don't owe anybody anything, you just can't make money off of the other guy's
> idea.

Yes. That's what I call "prohibiting me from using my own
intelligence and labor as I see fit." A still clearer example is if I
independently derive the same implementation but lose the race to the
patent office (or simply don't consider patenting the thing) and am
prohibited from profiting. There is no justice in such a prohibition.
Not an iota, scintilla, jot nor hint of it, and you cannot add it back
by hoping for it.

> The presumption is that once one person has had an original idea and its
> been published, the 'land' occupied by that idea in the world of
> memespace ...

Patents don't cover ideas. Any IP lawyer will tell you that. Patents
cover implementations. There has to be an implementation, and *only*
that particular implemented technique is covered. No fundamental
algorithms or ideas are covered.

Do you see the rhyme or reason here? I surely don't.

Anyway, the important thing about inventions is that your analogy
breaks down. Ideas are not like land, where only one person may
possess it for certain kinds of use. Implementations of ideas may be
profitably used by a theoretically unlimited number of persons, thus
there is no justification for granting property rights in them, unless
those rights entirely arise from voluntary contractual dealings among

> has now been claimed and is being developed, ...

Ah, but patents do not show and cannot show exclusive development.

> and that this meme now exists as an entity in society, ...

As far as some particular group of bureaucrats are concerned. This is
no basis for property.

> so it is not possible to call any other invention of the same
> idea as original, unless you can somehow prove that you never had
> been exposed

It is you and the statists who have invented this property right. I
do not think it is fair to burden the people who believe in liberty
with proving non-infringement of it. Instead, you should prove that
this property right will not infringe liberty, which you cannot do.

> to that idea or its offshoots before.. If you think that you have an equal
> 'right of access' to that memespace, then you are no better than a socialist
> who is against property rights. ...

Everyone has a right of access to the memespace. Your wish to enclose
it does not make your enclosure right. It is particularly noxious
because the enclosure serves only to create a right to a monopoly,
when there is no need for a monopoly for the inventor to profit. The
inventor has several avenues for profiting exclusively, at least for a
time. The inventor, to name one, could exhibit the practical
advantages of his or her invention without disclosing the details, and
solicit bids for manufacturing rights from a number of competing
manufacturers, handing over future development of the invention to a
standards body. This can be quite profitable, and secure a place for
the invention that requires no coercion, just voluntary dealings with
other individuals.

> > Moreover, under what theory of rights do you obtain exclusive
> > ownership of a technology just because you were first?
> The same theory of rights that grants a land patent to a homesteader
> who stakes the first claim on that undeveloped land. ...

The numerous means of staking a claim in property date back with the
earliest civilizations and have a basis in the nature of human
interactions. Hume, I think, gives a good work up of them. We have
such things as legitimate purchase, adverse possession, mixing use
with a thing (development), discovery, creation, etc. Human
civilization depends on these, and socialists to the contrary, all
societies in some ways have depended on them in everyday life. Even
the socialist societies merely stole property and handed it over to
the tyranny.

We need no state intervention to tell us about these rights, and we
have the whole history of humanity to help us in figuring out the
application of the principles to specific instances.

Not a single one of these principles directly applies to patents.

Patents grant as property *a monopoly right to profit from a
particular implementation of an idea*. Though I may have created
the implementation, I did not create the ability to profit from it --
I contributed, perhaps to others' ability to profit from it, depending
on how easy I made it for them to discern the idea.

But there is no proving that someone else might not have gotten to the

In any case, further profit will depend on *canny application* of the
labor, investment, improvement, marketing, etc. to the particular
implementation technique. By no natural, voluntary human interactions
can that be monopolized.

Only the state can create such a monopoly right.

The limited term of the patent demonstrates the extreme artificiality
of such a right. Imagine all property rights on land took the form of
17-year leases, at which point the land entered the public domain.
Our civilization would collapse. Or, more correctly, the laws would
be overthrown and a natural theory of land ownership would return,
perhaps in a cataclysm.

The monopoly right to profit from an implementation based on first
registration of the invention is, by contrast, a complete superfluity,
imposed by bureaucrats.

> > Only one in
> > which rights derive from state grants.
> No, state grants are derived from the concept that the state is entrusted by
> the people with unclaimed land that is assumed to belong to all, to
> disburse it in
> fair portions as developers seek to claim and develop that land.

We need no state ownership of land to derive title. Title can arise
from purely voluntary human interactions in accords with the
principles that our civilization has worked out. We need no state for
all fair property rights.

> > We all routinely benefit from
> > civilization and nobody makes us pay. I'm typing in a house that has
> > central heating. I enjoy this but I haven't paid the inventor of
> > houses or furnaces. What a calamity!
> Since patents do not last in perpetuity,

And why not?

If patents are a real property right, why are you not leading or joining
in a massive revolt against the tyrranical society which confiscates
that property after only 17 years?

Because in your heart you know I'm right.

Patents are an unearned gift of the coercive power of the state to
enable you to monopolize. Better not to push the claim further and
risk losing it altogether.

> and houses and central heating date
> back to the time of early civilization, the memes of 'house' and 'central
> heating' have become fair use technologies.

No such ephemeral, changeable right can possibly have a basis in
principles of justice. Compare, as you like to do, with land: how
much land has reverted by fair use to the public domain? How much is
now owned privately? Obviously, land goes to private hands more and
more down through the ages, because it is a real property right, not
the creation of the nation statists.

> > In what way does this justify the state's stepping in and assigning
> > ownership of a technology?
> because once an inventor has published his invention to the general
> public, then
> its not possible for another person to be able to claim that they
> had originated
> that idea subsequently, so it was not actually a new creation of
> that person's
> mind, but a recycling of an existing idea.

You are assuming the justice of the principle -- first registration of
implementation grants monopoly right to profit. I'm asking for the
derivation of the justice in this.
> > Deal freely with other people, or are you afraid to do so and have to
> > call in the nanny state to help?
> In a society where not many people seem to think that others should be paid a
> fairly for their honest work as they themselves would like to be, and where
> concepts of integrity and honesty have nearly lost their meaning, either have
> the state do it, or let me start enforcing the old codes of honor and integri
> as it used to be done.

What, do you want to reintroduce dueling? Or perhaps you mean the
integrity and honesty that prevailed during the era of slavery in the
U.S.? During the time of feudalism, with its droits du seigneurs?

> Only a gullible dupe would blindly trust everyone without
> protection like you seem to.

I have protection in that I have contracts, and I know how to get them
enforced. My dealings with my customers have been characterized by
straightforwardness and clarity, because we're very explicit about
what we want from each other from the word go.

> > > the original device from the original inventor, are they really an
> > > inventor, or just a cheap shallow crook with no consideration for
> > > others?
> >
> > Is it theft to learn from others' ideas?
> It is theft, plagiarism, and basically dishonest to use another's
> ideas without
> credit and requested recompense. If you don't understand this basic concept,
> then I have no basis to trust you either. Men who do not understand honor
> have no honor.

You are citing important principles, but you are not defining them
precisely, and thus you apply them incorrectly.

It is plagiarism to pass another's expressions of ideas off as your
own. This is dishonorable, and can be illegal in some instances,
according to principles that might in some cases naturally arise from
contractual arrangements between persons.

Dishonesty comes from representing things falsely. There is
altogether too much of it in the world. It may or may not be legal,
depending on considerations too complex to describe here.

Theft means intentionally taking another's property. This is one of
the most common crimes. Civilization unites to deplore and punish it.

Using another's ideas without credit is dishonorable if the idea has
not entered the sphere of common knowledge. For example, I mentioned
Hume earlier as my source for thinking about property rights, but my
honor would be no less had I not done so, since the ideas are the
common heritage of humanity at this point.

Using another's ideas without requested recompense may or may not be
dishonest, fraudulent or even theft depending entirely on whether the
person doing so is representing falsely and depending on the
originator's just basis for claiming the right to control the profit
from the idea. This is not an easy claim. The person may be in error
in claiming originiation of the idea. The idea may have been obvious.
The idea may have been inevitable. The idea may have been readily
independently derivable even if not obvious. And finally, the idea
may be justly obtainable through other avenues (persons not bound to

Therefore, humanity has traditionally correctly refused to enter this
morass and establish property rights in monopolizing particular
implementations of ideas, until the rise of the cult of the omnipotent
nation state, at which point the state felt free to enter all our
lives and micromanage the details down to the color of our socks and
how many cookies we may eat each day. The old, traditional way was
not dishonorable -- far from it, it was realistic -- though particular
actors may have been. Unfortunately, a just society cannot expunge
all dishonor.

One way for inventors to establish some sort of property rights until
the cat is out of the bag is to establish secrecy or non-disclosure
agreements to get the enterprise started. There is a fine tradition
of doing just this.

> > Maybe the original inventor should have made the person in question
> > sign an NDA.
> A patent is a societal NDA.

Don't give me Rousseau and your social contracts!

I don't recognize your social contracts. Lysander Spooner speaks for
me on this topic in "The Constitution of No Authority".

> If I invented the automobile, and I made every
> person who bought a car from me sign an NDA, I would also have to require tha
> anyone they ever showed the car to to sign an NDA as well. How feasible is th

Maybe the infeasibilty should help demonstrate the unnatural and
tyrannical nature of the property right you seek?

> That is the main reason why using only contract law to protect intellectual
> property fails, and why patents were created to redress that need.

Patents were created for the crown to license particular merchants to
produce goods, as a revenue generating scheme in England. In the
U.S. the more rights-conscious founders expressed the principle
differently -- to further the useful arts and sciences or some such.

No society bases IP on a natural propery rights foundation. This is a
modern myth.

> > Nah, that would require the inventor to actually work hard to protect
> > this right. Better for the state to just give her a handout, right?
> As opposed to letting everyone else steal her ideas?

As I said before, any IP lawyer worth her salt will tell you that
patents are not ownership of ideas.

Say it loud, say it proud:

Patents are not ownership of ideas!


Patents are not ownership of ideas!

The law takes pains to ensure that patents are not ownership of ideas.

> Enforcing the law and
> mandating that members of soceity operate honestly is not a handout, it is
> justice.

Mandating that members of society operate honestly is a tyranny more
exacting than any tyranny undertaken by any state ever. I wish you no
luck in your utopian tyrannical dreams.

> > > > This is coercive, oppressive and destructive, as well as against
> > > > liberty.
> > >
> > > Sounds like the anarcho-socialist argument against property.
> >
> > You are mistaken. The parallel is entirely in your head.
> >
> > In this case it is you who are arguing for the omnipotent state to act
> > as the arbiter of property, and it is I who am arguing for free
> > trade. You are taking the socialist line here.
> No I am not. The anarcho-socialist argument is that property rights don't exi
> because they infringe on other individuals 'right of free access'. Opponents
> patents are using the same principle with original ideas. Just as there is a
> limit to the amount of land on the planet, once you've sold one piece of land
> you cant sell it again to someone else, once a person has had an original ide
> and it has been published publicly, then it is not possible for someone else
> have originated that idea.

Patents are not ownership of ideas!

Patents are *monopoly rights*.

Why does origination grant monopoly rights?

> Given a finite universe, there are a finite number of ideas.

We will run out of time before we run out of useful implementations.

> > > However patent protection makes sure that EVERY user of your invention
> > > pays his fair share,
> >
> > The universal sign of the socialist argument! Let the government
> > decide what is "fair" and redistribute the wealth accordingly.
> The government does NOT decide what is fair, the market decides what the fair
> value of a particular patent is. All the government does is make sure that
> everyone who uses that idea actually pays for it what the market determines i
> is worth.

Let's try an experiment. Eliminate all government patent mechanisms.

Then let's see how the market deals with this "property right", shall we?

> > No thanks, I prefer free dealing.
> Free stealing you mean.

You are assuming what you have yet to prove, a legitimate property
right. Slander my case all you want, it doesn't make you right.

> > > which is not the case currently with software,
> > > where you have between 20-50% piracy rates.
> >
> > Does the existence of burglary justify the government deciding who
> > owns which houses and doling them out in arbitrary 17 year periods to
> > whoever can claim them first? Please take your statist schemes elsewhere.
> The existence of burglary justifies the government:
> a) allowing homeowners to shoot intruders
> b) making it a crime to break and enter
> c) hiring police to investigate such crimes and bring criminals to justice.
> d) protect the original land claims of the first settlers on that land throug
> the justice system.
> Whether the 'government' is a monopoly state or a competetive PPL system is
> irrelevant.
> If you think burglary is ok, then be prepared to get shot, arrested, and/or
> jailed.

Talk about misrepresenting my case! I was explicitly counterposing a
real injustice, namely burglary, with a wrong solution.

Also, even if I did endorse burglary, which I most certainly do not,
why should I then be arrested, shot and/or jailed?

Do you believe in jailing, arresting and shooting people for their
ideas, Mr. Lorrey? Perhaps my characterization of these as a tyrant's
schemes were more correct than I supposed.

Now let's do a fair comparison: You believe in the right for persons
to exact a toll for a limited time (why? why on earth?) on something
that there is a legitimate right of access to. I posit that this is
morally equivalent to highway robbery. You can go on about how the
highway robber got to the stretch of road first, and therefore has a
property right in extracting a toll. How honor compels us to pay the
honorable brigand, and so on.

Perhaps it is you who should be prepared that the consequences of your
endorsement of highwaymen may be deleterious to your health.

> > I can protect my own property thank you. I don't need the nanny
> > state and its protection racket.
> >
> Prove it. Show me a system where you can protect a milliion copies of a softw
> application distributed around the world from being pirated. It hasn't been
> invented yet.

My property derives from the rights I have in contractual arrangements
with the customers I do bespoke work for. I am not dreaming utopian
fantasies of extorting tolls from the millions.

James Wetterau

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