Patent reform, parts deficient in commons

A Five Part Plan for Patent Reform (pdf) by Charles Duan, Director of Patent Reform at Public Knowledge, is simultaneously good and deficient:

  1. Notes theoretical and observed problems with monopoly incentive story underlying patents, mixed empirical results, regulatory cause of strong positive results in one field (pharma), layers of abuse surrounding core in implementation, the existence of many non-monopoly incentives for innovation, conflicts between these and patents … and yet fundamentally accepts the noble origin role of monopoly incentives in protecting apple pie and correlation with some inventions — nevermind causality or counterfactual. Compare text “certainly many inventions through history, such as the light bulb, the airplane, and the photocopier, were invented by small inventors and protected by patents” and its citation (footnote 7, The Myth of the Sole Inventor)!
  2. Discusses commons (Open Innovation Communities) as evidence, and substantially better than typical writing doing so, as at least a concept of pro-commons reform is included: “One task for patent reform, then, is to consider adjustments to the patent system that better accommodate these alternate incentives for innovation. The goal of such adjustments is to better encourage these inventors incentivized by factors other than patents, and to ensure that patents do not stand in the way of those inventors.” As usual, commons regimes carved out of property defaults are mentioned (specifically GPL and DPL), but not as prototypes for default policy. Also, “it is important for these decisionmakers to reach out to inventing communities, even those that do not file for patents, and it is important for those communities to reach out to the Patent Office and other decisionmakers.” I think this also holds for “IP scholars” (which of course ought re-imagine themselves as commons scholars) and OIC participants/commoners — let’s talk about what concrete reforms would favor actually existing commons, and put those on the scholarly and policy agendas. A recent idea directly concerning patents that ought start down that long road, but many pertinent reforms may be indirect, favoring commons in other ways so as to change the knowledge economy which eventually determines what interests dominate.
  3. Innovation is assumed the top goal of policy, tempered only by conflict among incentives to innovate, and need to rein in unscrupulous behavior. No mention of freedom and almost none of equality (Joseph Stiglitz is quoted: “The alternative of awarding prizes would be more efficient and more equitable”), let alone as goals which trump innovation.

These three good/deficient pairs are endemic in intellectual property-focused discourse, e.g., see my recent reviews of IP in a World Without Scarcity and Copyright and Inequality — one of the reasons the latter is so great is that places equality firmly on the agenda.

A few other notes on A Five Part Plan for Patent Reform:

  • It’s not a plan, rather an exploration of “five key areas in which the patent system is ripe for reform.” The word plan doesn’t even appear in the text. Well worth reading, but don’t expect to find an actionable plan with five parts.
  • Notes that patent trolls existed in the 1800s (individual farmers were bullied to pay royalties for farm implements covered by patents), which is good (too often current discourse assumes intellectual property worked just fine until recently, with conflict caused by changing technology rather than by power and rent seeking), but then: “Analogously, as discussed above, farm technology was widely used in the nineteenth century, and patents on farm technology were hotly contested. Patents on those farm tools were effectively abolished. But that fix to the patent system did not prevent the software patent problems faced today—it ultimately was a Band-Aid rather than a cure. The same would be true of eliminating software patents. The fundamental issue is that the technologies of tomorrow are unknown, so targeting patent reform to one specific field of technology means that the same problems will only arise again in a different technological sector.” Sure, only abolishing all patents is sufficient, but this analogy seriously undersells the benefit of abolishing software patents: agriculture then was in relative decline of importance in the face of industrialization. Now, software is ascendant, and any technology of tomorrow that matters will involve software.
  • Focuses on FRAND (fair, reasonable and non-discriminatory) licensing for standards. But RF (royalty free) licensing is required for any standard in which commons-based projects are first class participants (e.g., free/open source software and codec patents). No doubt unscrupulous behavior around FRAND and standards is a problem, but the solution is RF for standards.
  • From the Public Knowledge site, reading the paper requires first supplying an email address to a third party (gumroad). Annoying, but on par with PK’s newsletter practices (one of the many favoring tracking users at cost of usefulness to users). Better, the paper is released under CC-BY-SA, so I uploaded a copy to the Internet Archive. Best, Duan has published the paper’s LaTeX source.

3 Responses

  1. dbhalling says:

    Your first point is incorrect: “monopoly incentive story underlying patents” for more see below

    Monopoly/patent posts

    Patents: Monopoly or Property Right a Testable Hypothesis http://hallingblog.com/patents-monopoly-or-property-right-a-testable-hypothesis/
    If patents are a monopoly, as some suggest, then it should led to certain outcomes. A close examination shows that none of the supposed monopoly effects result from granting patents.

    Monopoly/Rent Seeking vs. Property Rights/Intellectual Property http://hallingblog.com/monopolyrent-seeking-vs-property-rightsintellectual-property/.
    This post explains the characteristics of a monopoly and a property right and poses three questions to show the difference. Patents fit all the characteristics of a property right and none of a monopoly. Note that professional license, such as a law license has some of the characteristics of a monopoly.

    More on the Myth that Patents are Monopolies http://hallingblog.com/more-on-the-myth-that-patents-are-monopolies/.
    This post contains a number of quotes from philosophers explaining that patents are not monopolies.

    Property Rights, Possession and Objects http://hallingblog.com/property-rights-possession-and-objects/
    This post explains the difference in the concepts of property rights, possession, and objects. Most economists and patent detractors confuse these concepts. The origin, definition, and legal basis of property right are explained.

    The Myth That Patents are a Monopoly http://hallingblog.com/the-myth-that-patents-are-a-monopoly/
    This post compares the definition of a monopoly to the rights obtained with a patent. It shows that the rights obtained with a patent do not confer a monopoly.

    Patents are Natural Rights http://hallingblog.com/patents-are-natural-rights/
    This post traces the ideas of Locke and William Blackstone to show patents and copyrights are natural rights.

  2. dbhalling, thanks for the links to your site, I encourage all to read them.

    I’m usually disappointed in writers who undermine the incentive theory of IP but then assert its noble purpose, origins, and ongoing necessity, ergo proposing only anemic reforms. But your links show how much worse the dominant discourse could be.

    I don’t buy natural rights theory (which I see you have an article defending), but I’d moderately enjoy reading a debate between you (or someone who defends natural rights, intellectual property, and intellectual property as natural rights) and someone who defends natural rights and sees intellectual property as an affront to natural rights (e.g. Crosbie Fitch).

    I don’t think your first link is dependent on natural rights theory at all, so maybe I can comment on that. It claims that property leads to prosperity, monopoly to poverty, prosperous jurisdictions enforce intellectual property, poor ones do not, therefore intellectual property is property, not monopoly. That’s an embarrassingly transparent claim of correlation = causation, and completely ahistoric.

  3. Dale, I hope you’re reading this. Some of your basic premises are wrong.

    You say that creation is a source of property rights. I say that can’t be true. Consider the most essential property right of all: self-ownership, or the property right to your own body. Did you create your body? I know I didn’t make mine. My parents made it, and they maintained it for years. Yet I declare that I am the sole rightful owner of my body, and I don’t owe my parents any money or service in exchange. Am I wrong? And if I am right, what is the source of this most essential right?

    I argue that basic necessity is an important part of any property right. This is especially important when it comes to exclusive rights. Consider the right of self-ownership. I have the total exclusive right to own myself, because I need all of me, and trying to share any part of myself would really hurt me. This remains mostly true if I extend my ownership to physical objects, including plots of land. It is much less true when it comes to things like trademark and publicity, and when we get to patent and copyright, the premise of necessity of exclusive right isn’t true at all! I can display any pattern and build any device I want with my own materials, and no one else loses anything whether I do or I don’t.

    Also, concerning patents and prosperity, consider this: a healthy human body is full of parasites, but a decomposed skeleton has no parasites at all. Are parasites the key to good health? Could we revive a skeleton by introducing parasites? Of course not; I’ve got it backwards. Parasites seek out healthy bodies for hosts; they are a side effect of health, not a cause. I argue that patents are a side effect of prosperity. When there’s a lot of wealth to be had, plunder becomes more enticing, so rent-seekers establish patents and other protectionist measures to capture value. In less prosperous conditions, there’s less incentive to “protect”, so no patents. As Mike Masnick likes to say: “when you’re young you innovate, and when you’re old you litigate”.

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