No, unfortunately, the patent system is not dying. The title refers to deaths caused by the patent system. According to the BBC News science report, Patent system 'stifling science', findings by the Canada-based Innovation Partnership indicate that "Life-saving scientific research is being stifled by a 'broken' patent system". "'Blocking patents' are delaying advances in cancer medicine and food crops," according to the report.

While "[t]he traditional view is that strong patent protection stimulates innovation, reassuring companies that it is safe to invest in research without fear of being stung by rivals," this strategy "deters grass roots research in universities." As an example, "Work on the BRCA1 and BRCA2 genes that can cause breast cancer has been held up by legal disputes over patents held on the genes by Myriad Genetics, a biotech firm based in Utah, US. ... Meanwhile, patients in European countries were denied access to the cancer screening kits, because national health services were unwilling to meet the cost."

The new movie, Flash of Genius, from its previews, looks awful--glorifying intermittent windshield wiper inventor Robert Kearns's use of the patent system to shake down the auto industry for $30M.

After all, it was already well known that existing windshield wipers were problematic--for example, "the blades often scraped across a windshield that was nearly dry. The resultant friction made an annoying sound and tore up the blades' edges." The solution was also obvious: "A solution that occurred to a number of inventors was an intermittent system one that would wipe, pause for a few seconds, then wipe again."

In 1963, Kearns came up with one way to do this, patented it, and eventually sued Ford and Chrysler for using a similar design. "Ford's legal team argued that Kearns's patents were overly broad and therefore invalid. As Ted Daykin, a former Ford engineer, told The New Yorker in a 1993 article, 'An electronic timing device was an obvious thing to try next. How can you patent something that is in the natural evolution of technology?' The intermittent wiper, according to Daykin, was really the work of dozens of anonymous engineers at Ford, Trico, and other firms." Kearns won anyway--"$10.2 million from Ford in 1990 and $18.7 million from Chrysler in 1995, though both juries determined that the companies had not intentionally infringed on his patents."

This movie is sure to annoy. It's no wonder Hollywood likes it: it's pro-IP and anti-capitalism. But Randians have a dilemma--it pits one hero (innovator, patent holder) against another (industry)!

Update: GREAT comment on this at TechDirt.

Great piece by Frank Shostak, chief economist of M.F. Global and one of the best Austrian economists around: Can the Rescue Plan Fix the US Economy?, on LewRockwell.com.

A fifteen-minute interview by Lew Rockwell: Podcast #32; MP3 file (8.2MB). As Lew's site describes it, "Stephan Kinsella podcast on phony rights vs. real ones." We discussed mainly the moral, libertarian, propertarian, and state-related aspects of patent and copyright, and why there has been confusion about IP among libertarians.

More detailed discussion of these issues can be found on my libertarian publications page; see also my monograph Against Intellectual Property; and my speech and presentation, The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.

Insightful and interesting comments by Cory Doctorow (and surprisingly sound, given that Doctorow unfortunately favors socialized medicine (see this Free Talk Live interview):

Why do you give away your books? Giving away ebooks gives me artistic, moral and commercial satisfaction. The commercial question is the one that comes up most often: how can you give away free ebooks and still make money?

For me for pretty much every writer the big problem isn't piracy, it's obscurity (thanks to Tim O'Reilly for this great aphorism). Of all the people who failed to buy this book today, the majority did so because they never heard of it, not because someone gave them a free copy. Mega-hit best-sellers in science fiction sell half a million copies in a world where 175,000 attend the San Diego Comic Con alone, you've got to figure that most of the people who "like science fiction" (and related geeky stuff like comics, games, Linux, and so on) just don't really buy books. I'm more interested in getting more of that wider audience into the tent than making sure that everyone who's in the tent bought a ticket to be there.

Ebooks are verbs, not nouns. You copy them, it's in their nature. And many of those copies have a destination, a person they're intended for, a hand-wrought transfer from one person to another, embodying a personal recommendation between two people who trust each other enough to share bits. That's the kind of thing that authors (should) dream of, the proverbial sealing of the deal. By making my books available for free pass-along, I make it easy for people who love them to help other people love them.

What's more, I don't see ebooks as substitute for paper books for most people. It's not that the screens aren't good enough, either: if you're anything like me, you already spend every hour you can get in front of the screen, reading text. But the more computer-literate you are, the less likely you are to be reading long-form works on those screens that's because computer-literate people do more things with their computers. We run IM and email and we use the browser in a million diverse ways. We have games running in the background, and endless opportunities to tinker with our music libraries. The more you do with your computer, the more likely it is that you'll be interrupted after five to seven minutes to do something else. That makes the computer extremely poorly suited to reading long-form works off of, unless you have the iron self-discipline of a monk.

The good news (for writers) is that this means that ebooks on computers are more likely to be an enticement to buy the printed book (which is, after all, cheap, easily had, and easy to use) than a substitute for it. You can probably read just enough of the book off the screen to realize you want to be reading it on paper.

So ebooks sell print books. Every writer I've heard of who's tried giving away ebooks to promote paper books has come back to do it again. That's the commercial case for doing free ebooks.

Now, onto the artistic case. It's the twenty-first century. Copying stuff is never, ever going to get any harder than it is today (or if it does, it'll be because civilization has collapsed, at which point we'll have other problems). Hard drives aren't going to get bulkier, more expensive, or less capacious. Networks won't get slower or harder to access. If you're not making art with the intention of having it copied, you're not really making art for the twenty-first century. There's something charming about making work you don't want to be copied, in the same way that it's nice to go to a Pioneer Village and see the olde-timey blacksmith shoeing a horse at his traditional forge. But it's hardly, you know, contemporary. I'm a science fiction writer. It's my job to write about the future (on a good day) or at least the present. Art that's not supposed to be copied is from the past.

Finally, let's look at the moral case. Copying stuff is natural. It's how we learn (copying our parents and the people around us). My first story, written when I was six, was an excited re-telling of Star Wars, which I'd just seen in the theater. Now that the Internet the world's most efficient copying machine is pretty much everywhere, our copying instinct is just going to play out more and more. There's no way I can stop my readers, and if I tried, I'd be a hypocrite: when I was 17, I was making mix-tapes, photocopying stories, and generally copying in every way I could imagine. If the Internet had been around then, I'd have been using it to copy as much as I possibly could.

There's no way to stop it, and the people who try end up doing more harm than piracy ever did. The record industry's ridiculous holy war against file-sharers (more than 20,000 music fans sued and counting!) exemplifies the absurdity of trying to get the food-coloring out of the swimming pool. If the choice is between allowing copying or being a frothing bully lashing out at anything he can reach, I choose the former.

Great post on TechDirt:

IP Attorneys Increasingly Getting Their Own Patents And Suing

from the joining-in-the-party dept

A year ago, the story of patent attorney Scott Harris started making headlines. While being an IP attorney at a prestigious law firm, on the side, Harris had been getting his own patents, and then using a shell organization to sue companies for infringing. Some of the companies sued were represented by the firm that Harris worked for. Talk about a conflict of interest, right? Well, reporter Joe Mullin has discovered that these sorts of things are increasingly common. Various IP attorneys involved in patent hoarding lawsuits are seeing how lucrative it can be to just get a patent and sue -- and so they're eagerly jumping into the game themselves. Mullin dug up a bunch of cases of IP lawyers getting their own patents, and then suing over those patents, outside of their day job. Not surprisingly, many of the patents seem highly questionable (a patent on a car entertainment system that has a radio in front with DVD video in back.)

However, the bigger question is the conflict of interest. First, with lawyers getting their own patents, there are always going to be questions about whether any of the patents are really the work of clients rather than the lawyer themselves. In fact, in the case of the car entertainment system above, one of the companies that's been sued over the patent points out that "two diagrams and several columns of text" appear to be directly plagiarized from another company's patents -- who just so happened to be a client of law firm the lawyer worked for. Oops.

The second potential conflict of interest is, as with Harris, about suing companies that are represented by the law firm the lawyer in question works for. In some cases, the lawyers dance around this. For example, in one of the cases Mullin discusses, the lawyer sued three of the four companies who own CareerBuilder. The lawyer did not sue the fourth owner, the Tribune Company. Why? While there's no official explanation, it's not hard to figure it out. The Tribune Company is a client of the law firm the guy works for. The other three owners are not. So, basically, the Tribune Company got lucky that the guy with the patent just happens to work for a law firm it uses. Perhaps the law firm sees this as a way of "locking in" clients: leave us, and one of our lawyers will sue you for patent infringement.

Either way, the article is a pretty depressing look at the state of patent law and patent lawyers these days.

On the Sept. 3, 2008 show of Free Talk Live, the excellent libertarian radio program, there was an interesting discussion with a caller who is an author and has changed his mind about IP--he realized that by giving online versions of his book away on Amazon, he can sell more copies of it.

The recorded show is here; the IP discussion starts at the beginning, with the first caller, and lasts for a few minutes.

In other news, Google's new Chrome browser "is based on the open-source WebKit architecture, and Google claims that its code will be open source, so it's unlikely that the company is trying to corner the market on browser functionality, since innovations are eminently copyable." I.e., Google's not trying to lock Chrome's code down with copyright. It's not afraid of competition.

I noted previously that my Against Intellectual Property and Boldrin & Levine's Against Intellectual Monopoly are both selling just fine, even though both books are available for free online. Now it's no surprise the Mises Institute publishes works in free, online versions whenever possible; it doesn't hurt sales and anyway, their mission is to spread the freedom philosophy and sound economics.

But I was a bit surprised that Boldrin & Levine's publisher, Cambridge University Press, would allow them to put a free version of the book online; my experience with Oxford University Press (1, 2, 3, 4) would have led me to suspect publishers would be reluctant to permit this.

But as explained in the commments here, although they were not able to prevent the work from being protected by traditional copyright, the authors were able to persuade Cambridge to permit a free online version. Heroic! (The carping of some that they were "hypocritical" because the book has a copyright is ridiculous.)

When I inquired of Levine how they were able to manage this feat, he told me they simply bargained for it. The clause they got is as follows: Clause 3(a) grants to Cambridge "sole and exclusive right and license to produce and publish and itself further to license..." with some exceptions. Clause 3(b) reads: "(b) Notwithstanding clause 3(a) above, on first publication of the Work, the Author shall have the non-exclusive right to post the files of the published Work on his/her own and/or his/her institutional website subject to the inclusion of the copyright notice, full acknowledgement to Cambridge University Press and an appropriate hyperlink to the Cambridge catalogue."

In response to my surprise they were able to negotiate this, Levine told me that "academic journals give that as a matter of course - maybe for an academic publisher it isn't such a big deal? They didn't fuss about it, and it didn't sound like it was the first time they did it."

Could it be that some publishers are starting to get it?

Replying to IP practitioner Russ Krajek's post McCain vs Obama on IP Issues: There is No Contest:

Russ,

A few comments.

You write: "All the participants agreed on the same underlying principle: intellectual property rights are important and should be protected. In general, both sides agreed on the general goal of more rigorous patent examination that would, in theory, result in stronger patents. ... the general recognition of the importance in IP protection and its role in the economy was emphasized. ... The ‘problem' is that patents being issued today do not generate the confidence and respect in the public that, as a matter of public policy, one would expect."

Why would one "expect" this from the government? The state can't do anything well except destroy and damage. Why would anyone expect it to do anything constructive well?

"The bad press and attacks on patents in general have eroded confidence in all patents."

Why is this a bad thing? If patents are a net harm on society, why shouldn't people be skeptical of them? Why isn't it better that patents are weak?

"An inventor who obtains a patent cannot enjoy as much of the benefits of the patent as public policy would dictate."

Perhaps true; but why would anyone think the level of benefits that public policy "would dictate" are justifiable?

"Patents should be issued for inventions which are new, useful, and fully disclosed. Inventions that do not meet all three requirements should not be issued. Seems pretty simple, but the execution of the solution is down and dirty and decidedly not glamorous."

It doesn't seem simple to me. These requirements are purely arbitrary, unscientific, non-objective, legislated criteria, administered by a federal bureaucracy and federal courts--i.e., by a bunch of government employees. Why would anyone think this could ever be simple or just?

"I was glad to know that advisors to both candidates had a firm grasp of the issues and fundamentally agreed that strong Intellectual Property rights would be good for the country as a matter of policy."

Why do you assume that strong IP rights are "good for the country"? I mean, how do you know this? Why do IP practitioners always assume this--just because it is in their interest for the patent system to stay in place does not mean it is good for the country. No one can deny that the patent system imposes costs on the economy. How do its proponents know that the benefits are greater than the costs? Russ, what are the net benefits, in dollar terms? What are its benefits? Its costs? If you don't know, how do you know the net is positive?

As noted in Patent Reform Touches DNC in Denver,

Rep. Zoe Lofgren, D-Calif., told a crowd in Denver on Tuesday that it is crucial for Congress to pass legislation to update the U.S. patent system next year ... A proposal that would curb judicial "venue-shopping" for favorable courts is critical as is language to address patent abuses, she said. "How do you legally set a framework that prevents abuses and allows for a vigorous system that protects intellectual property?" Lofgren asked aloud. "It's not easy to come up with solutions."

Right. Call me crazy, but it almost seems like it's impossible to avoid "abuse" if one sets up a state-granted innovation-monopoly system! Hmm, I wonder how we could avoid that abuse... I wonder....