How did we get here:

By way of explanation, the Supremes long ago extended individual rights to corporations. Attempts to limit those rights have been rejected as unconstitutional--as now seems likely in their right to spend in elections. Is their right to vote next?

Patent attorney and pro-patent shill Dale Halling writes: "According to US Patent and Trademark (USPTO) Power Point presentation the allowance rate has again fallen to 41% by mid year 2009. This continues the sad trend of falling allowance rates that started in 2002."

Why is it a "sad trend"? What if there are "too many" "poor quality" patents being issued, and fewer junk patents are being allowed?

My article "Radical Patent Reform Is Not on the Way" was published today (Oct. 1, 2009) in Mises Daily.

***

Hardly a day passes when we do not hear of one patent abuse or another.[1] Ridiculous patents are issued or filed and companies are enjoined from selling their products. Judgments are issued, and settlements reached, for billions of dollars. (See the Appendix for examples of ridiculous patents and outrageous judgments.) Not surprisingly, there is a growing demand for reform of our patent system.[2]

Whether their demands are modest or radical, the reformers share the belief that the patent system is broken; has gotten out of hand; and is not in sync with our fast-paced, high-tech, open-sourced, digitized world in short, that it needs to be fixed.

FULL ARTICLE

[Mises crosspost]

As I noted here, I and others have been arguing the merits of IP law with patent attorney Gene Quinn on his blog at Reality Check: Anti-Patent Patent Musings Simply Bizarre and Responding to Critics: My View on Patents & Innovation. He's laid down a challenge to debate about IP:

I challenge anyone to a debate on this topic anywhere, at any time, to be moderated by a mutually agreed panel or moderator. I know as well as everyone here that I will never be taken up on that offer. I wonder why? If I am so stupid and irresponsible and ignorant then someone take me up and prove to the world I am as such. Of course there will be no takers because in a true debate none of the nay-sayers stand any chance and would be exposed for what they truly are. Nevertheless, the challenge is made. I am sure the silence will be deafening. Or wait, even better… the response will be "there is no point in debating you because you are ." We all know that is what they are going to say, and rational people will understand that to be nothing more than cowardice.

I would be happy to debate Mr. Quinn. What I'm thinking is that we could do an Internet debate, under the auspices of a suitable institution, with a moderator, with audio and video, open to a live, world-wide audience. If anyone has any ideas or suggestions, let me know.

[Mises post; SK post]

Against Intellectual Property has been been translated into Portugese (Contra a Propriedade Intelectual) by Rafael Hotz, of the Instituto Ludwig von Mises Brasil. It was previously translated into Spanish, Polish, and Georgian.

"It would be remarkable, and certainly unjustified, to find that the plaintiff could copyright the concept of Jesus as forgiver."

District Judge John G. Koeltl, explaining in part why one can't copyright the idea of putting Judas on trial.

Judge Koeltl even had the wisdom to award attorneys' fees to the defendant in this case, stating that there were "indicia of bad faith here."

Continuing on: "The plaintiff's first counsel was warned, before any action had been filed, that there was no colorable copyright infringement claim. The plaintiff nevertheless persisted in obtaining new counsel and filing his complaint. Furthermore, this case has the hallmarks of an abusive lawsuit."

Read the whole decision here.

[Hat-tip: CourthouseNews.com]

In his post Reality Check: Anti-Patent Patent Musings Simply Bizarre, patent attorney Gene Quinn is baffled that any patent attorney would openly oppose the patent system--or be hired by anyone. He writes, in part:

But what has me really wondering is how and why a patent attorney who is openly hostile to the patent system can get any work in the industry? Why would any inventor or company want an anti-patent patent attorney like Stephan Kinsella, who seems to be the genesis of this story, and so many other anti-patent patent stories.

Why would anyone hire me? I've prosecuted hundreds of patents. I've taught computer law as an adjunct law professor, I've published a great deal of legal scholarship including IP law, such as the Oxford University Press legal treatise Trademark Practice and Forms. I believe that given the patent system, tech companies have no choice but to arm themselves with patents, if only for defensive purposes. If someone went after one of my clients for patent infringement, I'd pull out all the stops to defend them from this state-backed threat. Maybe some clients like a patent attorney looking out for their interests.

Apparently Quinn thinks ideological conformity is a requirement for job competence. If you have the wrong politics, you're out. (I just hope I don't have the wrong religion, gender, or race.) But think about it: would you hire only oncologists who were pro-cancer? Is it outlandish to think of hiring a tax attorney to defend you from the IRS who thinks the income tax is immoral and should be abolished? Is it required of a patent attorney to be in favor of the patent system? Yes, we patent attorneys learn the patent law and how to navigate the system. Does that mean we receive special education--or is it propaganda--as to the justifiability of IP? If so, where is it? Sure, we are taught in law school that the stated purpose of the patent system is to encourage innovation, and public disclosure of inventions. Okay. So what? How does knowing the state's line for a given law prove that it is justified?

The truth is most patent attorneys are in favor of patent law. Why is this? They have no special knowledge about its normative validity. Rather, they are self-interested, and have been subjected to positivist, statist, empiricist propaganda in law school. Quinn tries to turn this defect into an advantage by hogging to the biased patent profession the right to pronounce on these matters--and then ejecting from the profession anyone who bucks the union line. The patent bar of course lobbies for the system that butters their bread. They claim special knowledge to pronounce that the system is "necessary" for innovation, even though they have no proof of this. (See below.) They marginalize non-lawyers as not having enough expertise to weigh in. And anyone who does have expertise is ostracized if they point out that the emperor is wearing no clothes. They remind of leftists who will not tolerate an African American who opposes affirmative action--they impose their supposed "benefit" on him by force, which is bad enough, and then use this imposed "benefit" to silence his criticisms of it. Terrible. (See An Anti-Patent Patent Attorney? Oh my Gawd!.)

But though patent practitioners have an interest in promoting the system that supports them--just as FDA bureaucrats support the FDA, just as government school teachers tend to be in favor of government schooling, just as policemen and state judges are in favor of the state's monopoly over justice--not all are won over by the propanda. Some just chug along, earning a living, while ignoring the cheerleading about how great our patent system is. In fact, I am not the only patent attorney who opposes the patent system. My friend Tony Diehl, a registered patent attorney, is opposed to it, and knows what a state boondoggle it is. As I noted in The Morality of Acquiring and Enforcing Patents, law professor Michael Davis, also a registered patent attorney, opposes the patent system (for leftist reasons, I believe, unlike my own pro-property, libertarian reasons--but still); and Daniel Ravicher, Executive Director of the Public Patent Foundation (PUBPAT) and Legal Director of Software Freedom Law Center, and also a registered patent attorney, appears to be opposed to patents or at the very least has serious reservations. And no doubt many patent attorneys know the standard justifications given for the system are nonsense, but they don't speak out because there is nothing to be gained from this except denunciations from cheerleaders like Quinn who will try to harm their livelihoods by telling clients not to hire them. So many are anonymous. As I wrote in Miracle--An Honest Patent Attorney!, I received at one point an email from a respected patent attorney, a senior partner in the patent department of a major national law firm. He/she insisted on anonymity--gee, I wonder why? He/she is not a libertarian. These are just his/her honest observations based on his/her long experience in the field:

Stephan, Your letter responding to Joe Hosteny's comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hostey] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the "tax" placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties' technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the "taxes" it imposes on them as the cost of doing business in the USA. I wish I had the "answer". I don't. But going to real opposition proceedings, special patent courts with trained patent judges, "loser pays attorney fees" trials, retired engineers/scientists or other experienced engineers/scientists being used to examine applications in their fields of expertise by telecommuting from their homes or local offices throughout the Country, litigating patent attorneys providing regular lectures to the PTO examiners on problems encountered in patent infringement cases due to ineffective or careless examination of patent applications, and the appointment of actually qualified patent judges to the CAFC, may be steps in the right direction.

Now this is an honest patent attorney. As I told him/her,

What is worse, to me, is when patent attorneys pretend to know, but of course, do not--and they know they do not, and they do not care. It is just dishonest. I don't mind a patent attorney being in favor of the system for the honest reason that it benefits him and his clients. Just like retired people benefit from social security even if it's an inefficient or unethical system. Or if patent attorneys just did their job and shut up about the "benefit" of the system. I will say that my point (not really in the letter, but expressed elsewhere -- e.g., There's No Such Thing As A Free Patent) is not only that is the system now probably "not worth it," but that due to the subjective nature of value, it would never be possible to demonstrate that it is "worth it". But that is a methodological point beyond most patent attorneys, who are utterly imbued with scientism and positivism.

And I have other patent attorney friends who skeptical as well. I've had dozens of conversations with patent attorneys, many of whom are mouthing the standard pro-patent line. I simply ask them, how do you know we need a patent system? How do you know the benefits accruing from it are greater than the costs of the system? What are these benefits, in dollar terms, what are the costs, and what is the net? I am always met with blank stares.

But let's return now to Quinn's screed:

My intention is not to get into a back and forth joust with those who believe the patent system does not spur innovation. In my experience there is simply no talking to people who hold those beliefs. They will hold those beliefs forever despite any and all evidence to the contrary, despite the laws of economics, the sensibilities and demands of investors and with total disregard for history itself.

It is in fact quite the reverse. Patent lawyers repeat over and over the state's propaganda that IP is necessary for innovation. They believe that we are made overall better off by the patent system. This means that the value of the extra innovation spurred by having a patent system far outweighs the undeniable costs of the system. Okay--then what are these numbers? What is the net benefit of the patent system? Is it a billion dollars? A trillion? How does Quinn know it's not negative? If he knows it's a positive number, what is his evidence for this? I don't know the costs. I don't know the value of the benefits. (My educated guess is that the net cost is over $41 billion per year. But who knows?) I do know that every study that comes out concludes otherwise (see my post Yet Another Study Finds Patents Do Not Encourage Innovation). They are the ones in favor of the granting of state monopolies. The burden is on them, not on opponents. So where is their evidence?

They don't pretend to know. They don't take this seriously. They don't have any idea of the costs, or the benefits, or the net. They don't care about the costs--costs (patent lawyers' salaries, say) are benefits to them, you see. They most they will do is trot out some off-the-cuff, non-serious remark that western countries are more prosperous and have patent systems; or we have had economic growth in America, coinciding with the patent system's implementation. Wow. How rigorous. Never heard of the idea that correlation is not causation? Maybe the pro-property industrialized countries tend to tax and war and regulate and impose patent systems because they can afford it. (See Interactive Graphic Pretends to Illustrate How U.S. Patent System Has Driven American Economy; Prove that would have been invented without patents!.)

Back to Quinn:

Yet, I have to confess at being extremely interested in knowing how a patent attorney could come to such beliefs. Kinsella is used as a propaganda tool by anti-patent folks everyone who point out "even a patent attorney knows patents stifle innovation." How is it possible that a patent attorney could believe that innovation would occur faster without patents?

The truth is we anti-IP libertarians have sincere, serious, good reasons to believe patent rights are false rights that do harm. See, e.g., my The Libertarian Case Against Intellectual Property: A Concise Guide; and other libertarian IP publications. If anything, my experience in the patent field shows me how much waste there is. It shows me what a threat to free enterprise patents are. It shows me that larger companies are just using this latest state monopoly grant as a tool to bludgeon smaller companies.

Quinn then disingenuously argues that if you are against patents, you are against technology:

The truth is that every civilization that dominated had advanced technology and innovation when compared with competing civilizations. Whether there were patents or not, advanced technology and innovation is something to be aspired to. Rather than choosing to tax the people and require free labor by unfortunate classes of people our nation has evolved to tap into one of the most fundamental and powerful motivation forces greed! Because of greed individuals, investors and companies will devote substantial amounts of time, energy and funding to come up with whatever is next, whatever is better and whatever will make them money. If we don't want a patent system and we still want the jobs innovation creates, the lifestyle advances that innovation creates and the life-saving drugs and treatments that innovation creates we need to dig deep into the greed gene and exploit it.

Yes, "greedy," self-interested behavior is fine and good. I'm in favor. I'm a libertarian, after all. The problem with patents is not that they are too capitalistic: it's that they are state privileges that intrude on the free market. I oppose patents because they undercut private property rights, not because they are private property rights.

And of course, technology and innovation is good. The mistake here is thinking there is market failure: that without the state's interventions, there won't be enough innovation. How anyone can honestly think the state can intervene and make things better is beyond me.

... I find it flat out bizarre that anyone could be of the opinion that patents stifle innovation. The truth is patents stifle innovation by the lazy, who would have never innovated anyway. Innovating is not for the faint of heart, and certainly not for the lazy, so why do we at all care what the anti-patent zealots think would happen in an unrealistic fantasy world where everyone simply works hard for the betterment of mankind and to assist others without regard to their own well-being or financial interest.

If Quinn does not understand why people can believe patents stifle innovation, he can do a bit of reading. He can start with the list of study after study concluding otherwise, collected in Yet Another Study Finds Patents Do Not Encourage Innovation; then he can read my The Libertarian Case Against Intellectual Property: A Concise Guide; and for a detailed examination of the utilitarian aspects of patents and why they discourage innovation, he can see Boldrin and Levine's magisterial Against Intellectual Monopoly (free version online).

As for lazy--was RIM lazy when it heroically innovated and provided the magnificent Blackberry to tens of millions of customers, only to have over $600M extorted from it by a patent thug? Is the ever-innovating young company Facebook "lazy"--if they don't pony us hundreds of millions of hush money to the patent predator nipping at it? Or is it rather than larger companies can rest on their laurels, protected from competition from smaller, hungrier startups, because their arsenal of patents allows them to achieve detente by thread of MAD with other, large, patent-hoarding companies, but to threaten startups who don't usually have strong patent portfolios?

Update: I and others posted several good comments to the thread Reality Check: Anti-Patent Patent Musings Simply Bizarre. Quinn has posted a followup: Responding to Critics: My View on Patents & Innovation. His post makes it clear that it's not worth responding to him any more.

Update 2: Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

[SK cross-post; Mises cross-post]

So, now we even have an IP-Czar (how about "Czarina", at least? Ah, the foreign languages ...).

Good, or bad? No idea. I looked around the web and could not figure out why Ms. Espinel is the appropriate person for this job. Visiting Assistant Professor at George Mason and Assistant U.S. Trade Representative for Intellectual Property is not exactly a lot, but one never knows ... Oh, right, she is also the president of some lobbying group working to empower Americans to obtain the full benefit of their creativity and ingenuity. That sounds like a program, indeed.

Anyone out there has any idea about her views, writings, previous actions taken, professional experience and knowledge of the matter?

Mine is just plain curiosity: a Czarina is supposed to be a very powerful person, after all, so it would be nice to have some track-record somewhere.

I wrote previously on the Troll Tracker case (see Update on Patent Troll Tracker; Troll Tracker Lands Job Fighting Patent Trolls!). This case concerns defamation suits filed against "Troll Tracker," aka Rick Frenkel, by two Texas lawyers, in the aftermath of Frenkel's identity being revealed, after bounties put up by one of the subjects of his criticism, patent attorney Ray Niro. (It's convoluted, but all you need to know is that Frenkel is the good guy here.)

An updated is provided by Dennis Crouch on Patently-O in Troll Tracker Defamation Lawsuit: Trial Underway. As Crouch notes,

Eric Albritton's defamation lawsuit against Rick Frenkel and his former employer Cisco Systems is underway in the Eastern District of Texas. In my opinion, the case is ridiculous. However, it should serve as a reminder that those vehemently against certain types of speech can often shut-down that speech. Frenkel has indicated that he will not revive his troll tracker blog.

Yet another example of how state law and institutions--including defamation law, state courts themselves and the hideous expense they impose and the injunctive remedies available to judges, and the admixture of IP law--chills free speech.

[StephanKinsella.com cross-post; Mises blog cross-post]

As was noted here in August, Canadians were offered a chance to express their wishes for the next version of the Copyright Act of Canada. The volume of submissions (estimated to be over 8,000) may have caught the Federal Government off guard; the consultation period is now closed, but many submissions have not yet been posted.

My favorite might well be the remarks of David Allsebrook, submitted August 10, who observed that the protection of copyright should require adherence to the prevailing legal limitations of copyright - those who deny the public legitimate access to copyrighted materials through "restrictive license terms, technical protection means, or abuse through collective administration," should have the their entire protection revoked!

I am less enthusiastic about the request from the Association of Universities and Colleges of Canada, for a special exception so that students and faculty may utilize publicly available works from the Internet (as discussed in the Gatineau roundtable of July 29). To give the Association the benefit of the doubt, I must say that Canadian education operates under tightly constrained and cumbersome educational exceptions to copyright. That said, it's a little hard to overlook the fact that this request is being made in the name of works that are "publicly available." The Association is conceding infringement where none has happened, which raises concerns of liability to all those who will not be sheltered within an educational institution.

Moreover, once published, all material is available for the good-faith productive uses that are specified under fair dealing (private study, research, criticism, review, and news reporting) provided that the conditions of fair dealing are met (citation, appropriateness of use, etc.) Unlike fair use, fair dealing is this closed set of activities. However, in 2004, a unanimous Canadian Supreme Court described fair dealing as an integral part of copyright law, stated that it should be interpreted liberally, and offered considerable guidance regarding how to use fair dealing.

One advocate of the Association's proposal informed me that other jurisdictions are considering similar schemes. But, there was no mention of which jurisdictions. If anyone has information to share, please do.

More information on the Association's proposal can be found in my submission.