Sash inquired as to my apparent change in policy on IP, in that recently I suggested people gain patents, in order to fight the evil regime. I need to clear that up. What happened is last Fall the patent laws were changed, and new ideas on eliminating the IP regime have come up. My recommendations have not changed, there are now more options.
Last fall the USA went from the system Thomas Jefferson designed, where the inventor gets the patent, to the european system Jefferson abhorred, and that is first to file system. In an effort to make things better, the state made things worse.
But therein is an opportunity for a business, which I will get to shortly.
After the economic collapse we are experiencing slow motion right now finishes, we’ll be at what Rawls calls an “original position” in which we can reorganize into a more just society. I can’t wait!
A very high priority will be eliminating any and all Intellectual Property “rights,” one of the most wasteful systems and the number one inhibitor of innovation in our economy. Not only is it a massive waste of money, it blocks untold invention that would benefit mankind.
Our economic destruction is proceeding too slowly for us to wait to get rid of the IP regime, we must do so now. The means to do so is at hand, and makes for an excellent business opportunity, in particular a service.
So let’s look at a particular problem:
Under copyright law, someone who independently creates an original work similar to another author's original work is not liable for copyright infringement, since the independent creation is not a reproduction of the other author's work. Thus, as a defense a copyright defendant can try to show he never had access to the other's work.
Patents, however, are different. As long as someone is an actual inventor of an invention (he did not learn about it from someone else), and the invention was not publicly known, he can obtain a patent for it. Someone who previously invented the same thing and is using the idea in secret can actually be liable for infringing the patent granted to the second inventor. Also, if a later person independently invents the same idea that was previously patented by another, this is also no defense. Prior use, or independent invention, is not a general defense. There is currently only a very limited "prior user" right (or "first inventor defense"), available to those who commercially used a "business method" before someone else patented it.
The purpose of law is to bring order to circumstances. Rules govern skiing, chess, banking, the diamond business and so on, all without state intervention. The problem is once the state intervenes, the rules engender chaos., as we see with the whimsical system above. Patent Attorney Stephan Kinsella, an honest lawyer who seeks to end the regime, advises a possible amelioration:
One could envision a more general purpose patent pooling arrangement: either devoted to a given sector of technology, or open to all forms of technology. For example, let’s imagine I form the Patent Defense League, a nonprofit corporation that allows any individual or company to join, so long as they abide by certain rules. These could include: (1) the company can never sue a fellow member of the PDL for patent infringement; and (2) the company has a contractual obligation to temporarily assign the patent to any other PDL member who needs it for defensive reasons. In this way, the PDL would effectively create a huge arsenal of patents any member could use defensively. The PDL could also accept patents assigned by its members, or could acquire some third party patents using member dues.
Now there is the business opportunity, a service. But the Esquire Kinsella foresees problems:
1 Presumably the PDL would charge membership fees. Perhaps the fees would be discount for every patent the member can contribute, so that those contributing more have to pay less in terms of money. (I’m envisioning $50k or so for smaller companies, $100k for larger ones.)
2. But what incentive do members have to keep filing and acquiring additional patents, instead of halting patent acquisition effort and expenses and “free riding” on the other patents in the pool? If all the members stopped filing for patents, eventually the patent pool would shrink and be of less value. So incentives would have to be built into the structure of the pool so that member companies still file for and acquire patent applications. Presumably the right to sue non-PDL members would provide some incentive to keep acquiring patents.
There is an effort to do this already, but it suffers from a fatal flaw, they are trying only to curb one problem, not destroy the patent regime, which is the task at hand.
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So the opportunity stands, and let me suggest answers to Kinsella’s objections:
1. What would the expenses be to warrant the $50K or $100K fees? Skip the “buying of patents” and what is left? You need a database and a set of skilled patent parsers who can research a predator’s weakness, and then work-up the lawsuit in a template manner. Since this work can all be done overseas, the fees could be quite low. And I would arrange it so if evil company X is threatening our company Y, the Patent Regime Destruction Org (PRDO) would prep the paperwork and start with a lawsuit, having found that PRDO member Z has standing to counterattack evil company X. It’s rope a dope, make all companies fear any patent lawsuit for the exposure of an attack from who-knows-where. Use the system against itself.
Whereas a patent attorney may need to charge fees of $50 or $100K, some kid working off his kitchen table may be happy to do so for $12 an hour, with a crew in India working at $6 an hour. Stranger things have happened. The Nazi regime was fatally wounded by some guy working off his kitchen table in Portugal.
2. As to Kinsella’s 2nd concern, I’ve been teaching for some 25 years and bashing IPR for about 20. In almost every class I find someone with a patent. None have ever made any money. Most have their name on the patent, but the ownership is with the company for whom they were working. Almost everyone is quite clear that any patent they were involved in would be of no financial benefit to themselves. But it sure is cool to have ones name on a patent, a sort of feather in ones cap, and certainly a gem on a resume. Indeed, Kinsella holds patents.
People submit all sorts of creative works to all sorts of contests, and that seems to be largely why individuals seek patents, a sort of laureate on par with a blue ribbon at a poetry contest. So i don't think patents would stop once people became members of the PRDO.
Indeed, PRDO ought to crowd out those “patent submission” scams and offer help for people to submit for patents if they will contribute the patent to PRDO.
So to answer Sash directly, I have not changed my mind, I’ve added to the arsenal. My advice stands, avoid IPR, as a tactic, let the designer own it. But if you desire to help destroy an evil system, then patent your ideas and turn the patent over to PRDO (or whatever the name is of the company that gets started.)
Kinsella schooled me as to my own efforts regarding freeing my copyright works. As to my own books, he says “actually, you don't copyright it. you automatically get a copyright in anything you write. no notice or registration is needed. "
I shared with Kinsella:
Mark Helprin says he is a writer and copyrights allow him to pass something on to his daughters (monopoly income residuals). I market, print and sell my books. I told my daughters if they want to make money off my books when I am dead they need to market, print and sell my books, like anyone else. There is nothing wrong with working for a living.
And Kinsella answered my dread of my children’s avarice with this “You might consider making a donation to the upcoming Free Culture Trust, in your will http://questioncopyright.org/free_culture_thing
I will research that suggestion and report on it later.
The main task is the elimination of patent, copyright and trademarks. In addition to just playing the system, there are now some possibilities afoot to positively eliminate it. So there may be some instances when pursuing a patent is beneficial if the intent is to gum up other patentholders in their effort to restrain innovation.
Feel free to forward this by email to three of your friends.
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