As I mentioned in Radical Patent Reform Is Not on the Way, in in In re Bilski, the Court of Appeals for the Federal Circuit (CAFC) modified previous holdings regarding the patentability of software or business-method patents in upholding the rejection of patent claims involving a method of hedging risks in commodities trading. The case was appealed to the Supreme Court and oral arguments were heard earlier this month. This entire area of patent law is very arcane, but the main issues and the oral arguments are explained very well by the heroic IP-abuse reporter Joe Mullin in Bilski v. Kappos Oral Arguments: Supreme Skepticism Toward Method Patents.

Take a look at Mullins' discussion of the oral arguments--it's fascinating seeing the Justices grapple with the absurdity of patent law. A few choice excerpts below.

I suspect the Court will choke back a bit on software and business method patents--but not too much, as I argued in Radical Patent Reform Is Not on the Way. One reason is that although the law is, as the Justices seem to be realizing, completely unjust and absurd, it is the law. Or, as Bilski's lawyer said, "That's our system ... We do grant exclusive rights in exchange for disclosure." Yes, we do. And when you implement such an abomination, that's what you get: absurd, unjust results, such as granting monopolies on "fundamental ways of conducting business or organizing human behavior" (and yes, patents are monopolies, despite the shrill denials by patent shills and other pro-monopolists).

Excerpts from oral arguments:

Across the board, the justices indicated a deep skepticism toward the invention described in the patent application at issue, which was rejected by the U.S. Patent and Trademark Office and describes a method for trading commodities. Some of the justices went even further expressing both a fair amount of disdain for the idea of granting broad "method" patents and a concern that ruling in favor of the petitioners would lead to patent grants on fundamental ways of conducting business or organizing human behavior. ...

Based on the justices' attitude during the arguments, it not only seems extremely unlikely that Bernard Bilski will ever get the patent at issue, it also seems clear that the court is poised to establish a new, and most likely stricter, test of what is patent eligible.

One after another, the justices prodded Bilski's lawyer, Michael Jakes of Finnegan Henderson, Farabow, Garrett & Dunner, in search of some idea about where to draw the line. The thrust of the questions: Does absolutely everything fall within the domain of the U.S. patent system?

"So, an estate plan?" asked Justice Ruth Bader Ginsburg. "A tax avoidance method? How to resist a corporate takeover? All of these are patentable?"

"They are eligible for patenting under section 101," replied Jakes, referring to the section of the 1952 patent statute that governs what is patent-eligible subject matter.

... "Your argument is that anything that helps business succeed is patentable," Breyer said. Would the framers of the Constitution, he asked, really have wanted everyone with a new idea to run to Washington to get a patent, in the process enabling them to "stop the wheels of progress" unless competitors got permission?

"Why not patent a method of speed dating?" Justice Sonia Sotomayor asked.

There are a few, limited areas, Jakes said, where patent protection isn't available; he pointed to the fine arts as one example. Otherwise, he argued, patents encourage people to innovate, and it is via the patent system that they disclose their new creations to the public.

... Justice Sotomayor took issue with Jakes's suggestion that patents are always a manifestation of innovation.

"A patent limits the free flow of information," she said. "It requires licensing. You can't argue your position is enhancing the free flow of information."

Jakes replied: "It does, because of the disclosure requirement."

"Even though the public can't use [the patented invention]," noted Scalia.

"That's our system," said Jakes. "We do grant exclusive rights in exchange for disclosure."

Time and again, Jakes refused to draw a line that ruled anything off-limits to the patent regime. His position left the justices questioning whether he was advocating the "ownership" of basic human activities.

"Let's take training horses," said Justice Antonin Scalia. "Don't you think that some people, horse whisperers or others, had some ... insights into the best way to train horses? Why didn't anybody patent those things?"

"I think our economy was based on industrial processes," responded Jakes.

"It was based on horses, for Pete's sake!" said Scalia. "I would really have thought somebody would have patented that."

... Chief Justice Roberts pushed back on an inconsistency in Stewart's briefing of the case. On the one hand, he said, the government claims Bilski's method just describes a way of doing business, and therefore isn't patentable but then posits that a computer with an "interactive website" doing the same thing might be. "That's like saying if you use a typewriter to type out the process, then it's patentable," said Roberts.

If the website scheme was part of a computer program, Stewart said, "the computer would be at the heart of the innovation."

"No, no," said Roberts. "That's just saying instead of looking in the Yellow Pages, you look on a computer."

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

In Jeff Tucker's superb article If You Believe in IP, How Do You Teach Others?, he notes Rand's increasing focus on exalting the creator and elevating "intellectual rights" to such a height that they totally trump real rights. This is no exaggeration. As I noted in Against Intellectual Property, Rand actually, incredibly said that "patents are the heart and core of property rights." See also my post Inventors are Like Unto .... GODS....., noting Objectivist IP attorney Murray Franck approvingly repeating this quote: "intellectual property is after all the only absolute possession in the world."

So, yes, Objectivists focus on the creation of value, and thus in rights in value, and explicitly drop the connection between property rights and scarcity. As I note in footnote 76 of Against Intellectual Property, Objectivist David Kelley wrote:

Property rights are required because man needs to support his life by the use of his reason. The primary task in this regard is to create values that satisfy human needs, rather than relying on what we find in nature, as animals do. . . . [T]he essential basis of property rights lies in the phenomenon of creating value. . . . Scarcity becomes a relevant issue when we consider the use of things in nature, such as land, as inputs to the process of creating value. As a general rule, I would say that two conditions are required in order to appropriate things in nature and make them one's property: (1) one must put them to some productive use, and (2) that productive use must require exclusive control over them, i.e., the right to exclude others. . . . Condition (2) holds only when the resource is scarce. But for things that one has created, such as a new product, one's act of creation is the source of the right, regardless of scarcity. [emphasis added]

Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13 (including: David Kelley, "Response to Kinsella," IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, "Intellectual and Personality Property," IOS Journal 5, no. 3 September 1995), p. 7.

Thus, Objectivists will talk about man creating values. For them "a value" is a thing that exists; it's what you "create". For the Austrian and Austro-libertarian, you don't talk about "a value" as if it's an existing thing that you create. I don't make a value. For us, it's more of a verb: we value things as ends or as means to ends. We can make something more valuable by transforming it, but we do not create new property when we do this. As discussed in Intellectual Property and Libertarianism, creation is an important means of increasing wealth. As Hoppe has observed,

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways. [Hans-Hermann Hoppe, "Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order," Review of Austrian Economics 4 (1990): pp. 55-87, p. 60. Emphasis added.]

While production or creation may be a means of gaining "wealth," it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another the transformation of things someone already owns, either the producer or someone else.

By viewing "values" as things that we create, Objectivists then think there should be property rights in values. They are things, after all, right? But this is a fundamental mistake. As I noted in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, a common mistaken belief is that one has a property right in the value, as opposed to the physical integrity of, one's property. For elaboration, see pp. 139-141 of Hoppe's A Theory of Socialism and Capitalism; also see my comments re same to Patents and Utilitarian Thinking. This assumption sneaks into or lies at the basis of many fallacious notions of property rights, such as the idea that there is a right to a reputation because it can have value. It ties in with the (especially Randian) notion of "creation" as the source of rights, and the confusing admixture of the "labor" idea, when we talk about using our labor to "create" things of "value" (like reputations, inventions, works of art). As Hoppe notes in The Economics and Ethics of Private Property:

According to this understanding of private property, property ownership means the exclusive control of a particular person over specific physical objects and spaces. Conversely, property rights invasion means the uninvited physical damage or diminution of things and territories owned by other persons. In contrast, a widely held view holds that the damage or diminution of the value (or price) of someone's property also constitutes a punishable offense.As far as the (in)compatibility of both positions is concerned, it is easy to recognize that nearly every action of an individual can alter the value (price) of someone else's property. For example, when person A enters the labor or the marriage market, this may change the value of B in these markets. And when A changes his relative valuations of beer and bread, or if A himself decides to become a brewer or baker, this changes the value of the property of other brewers and bakers. According to the view that value damage constitutes a rights violation, A would be committing a punishable offense vis-à-vis brewers or bakers. If A is guilty, then B and the brewers and bakers must have the right to defend themselves against A's actions, and their defensive actions can only consist of physical invasions of A and his property. B must be permitted to physically prohibit A from entering the labor or marriage market; the brewers and bakers must be permitted to physically prevent A from spending his money as he sees fit. However, in this case the physical damage or diminution of the property of others cannot be viewed as a punishable offense. Since physical invasion and diminution are defensive actions, they are legitimate. Conversely, if physical damage and diminution constitute a rights violation, then B or the brewers and bakers do not have the right to defend themselves against A's actions, for his actions - his entering of the labor and marriage market, his altered evaluation of beer and bread, or his opening of a brewery or bakery - do not affect B's bodily integrity or the physical integrity of the property of brewers or bakers. If they physically defend themselves nonetheless, then the right to defense would lie with A. In that case, however, it can not be regarded as a punishable offense if one alters the value of other people's property. A third possibility does not exist.

Both ideas of property rights are not only incompatible, however. The alternative view - that one could be the owner of the value or price of scarce goods - is indefensible. While a person has control over whether or not his actions will change the physical properties of another's property, he has no control over whether or not his actions affect the value (or price) of another's property. This is determined by other individuals and their evaluations. Consequently, it would be impossible to know in advance whether or not one's planned actions were legitimate. The entire population would have to be interrogated to assure that one's actions would not damage the value of someone else's property, and one could not begin to act until a universal consensus had been reached. Mankind would die out long before this assumption could ever be fulfilled.

Moreover, the assertion that one has a property right in the value of things involves a contradiction, for in order to claim this proposition to be valid - universally agreeable - it would have to be assumed that it is permissible to act before agreement is reached. Otherwise, it would be impossible to ever propose anything However, if one is permitted to assert a proposition - and no one could deny this without running into contradictions - then this is only possible because physical property borders exist, i.e., borders which everyone can recognize and ascertain independently and in complete ignorance of others' subjective valuations.

Rand did have insights that militated against property rights in "values"; as she once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power and it is the only meaning of the concept "creative." "Creation" does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. "Creation" means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

She should have realized that this means there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people's already-owned property. If she had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people's property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights--the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

This is where the Misesian approach to subjectivist value makes sense: things have value to a valuer; values do not exist independently as free-floating things that can themselves be owned. And again, Rand should have recognized this; e.g., she once wrote, "Material objects as such have neither value nor disvalue; they acquire value-significance only in regard to a living being particularly, in regard to serving or hindering man's goals." (For more on the compatibility between Objectivism and Austrian economics, see Mises and Rand (and Rothbard); Randian Hoppe(?), Austrian Rand(?).) So she should have realized that if rearranging owned property makes the owner or potential buyers value the object more, it does not mean there is any additional thing created for which we need to find an owner.

I think a similar mistake is made by Tibor Machan. Rand slips into thinking of values as ownable things because she thinks of values as created things, rather than thinking of it as a verb: people value things (and demonstrate this preference or valuing in action). I'm sure Machan would disagree with my way or framing his argument, but his argument, to me, seems to say that if you can have a concept for some"thing", or a name or word for "it," then it's an ontological "type of thing," and after all, if you create this thing, why shouldn't you be "its" owner? The problem (For more on this, see New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to "Trademark and Fraud"; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.)

As noted in this alert by the law firm Fulbright & Jaworski, the U.S. Patent and Trademark Office (PTO) has announced that it is rescinding controversial rules promulgated in 2007 that have been ensnarled in litigation since then. The rules sought to limit the number of patent claims per patent application, and the number of continuing applications that could be filed. As I noted in Radical Patent Reform Is Not on the Way, these changes are not radical, as the patent privileges lobby paints them. But the very fact that they were so vociferously opposed by the organized patent bar, such as the AIPLA, indicates that these changes would probably have been in the right direction. Basically, anything the AIPLA is against, the libertarian should be for.

Following the rule that each President is worse than the last and eventually makes you nostalgic for his predecessor, here we have a case where the Obama administration is fighting one of the few halting, tentative efforts of the Bush administration to actually improve matters. As a PTO press release stated, the current PTO Director "has signed a new Final Rule rescinding highly controversial regulations, proposed by the previous administration, that patent applicants felt unduly restricted their capacity to protect intellectual property." As Fulbright's alert notes, "The exact scope of the PTO's procedural rulemaking authority, a highly contested issue in this dispute, remains unresolved. The rescission of these rules may prove to be a tactical decision in a quest for greater PTO rulemaking authority. Despite the PTO's emphasis that these rules were proposed by the previous administration, the current administration, via Secretary of Commerce Gary Locke, is actively lobbying for substantive rulemaking authority at the PTO."

[LRC post; SK post]

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?

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]

You can't make this stuff up.

As reported on Patently-O,

Earlier this week, the USPTO issued a design patent to Google that covers the "ornamental design for a graphical user interface [GUI] … as shown and described." Pat. No. D. 599,372. Design patent coverage is essentially defined by the images include in the issued patent. Here, the image looks roughly the same as the company's ubiquitous Google.com homepage. (See image below.)

To be clear, many patent professionals would argue that it is misleading to ever simply call this "a patent." Rather, it is a design patent. Design patents have severely limited scope, only cover ornamental designs rather than technological advances, and are very frequently found invalid when challenged in court. The USPTO has been granting design patent protection for screen shots and icons for many years. However, to my (limited) knowledge, none of those design patents have ever been enforced in court. ...

Dashed or "ghost" lines in the drawing indicate features that are not claimed. Thus, patent would be infringed by someone using an identical layout even if they replaced the "Google" mark with their own mark. You can note at the bottom that the design patent drawing is marked with a circle-c ©. That indicates that Google is also claiming copyright protection for this layout. In addition, in the design patent, Google indicates that it is also claiming trademark protection for portions of the layout and - perhaps - for the layout as a whole.

[SK cross-post]

From Mises Blog:

Intellectual property is the principle that the creator of an idea has a right to certain controls over all the physical forms in which his idea is recorded. The extent of this control may be different depending on whether the idea is considered copyrighted, patented, or trademarked, but the essential principle is the same in all cases. This presumed right of the creator of an idea is often believed to be similar to the right that a homesteader has to land he has settled, but the analogy is false. Intellectual property is necessarily a statist doctrine. FULL ARTICLE By Daniel Krawisz

Study Finds Patent Systems May Not Be an Effective Incentive to Encourage Invention of New Technologies reports:

A new study published in The Columbia Science and Technology Law Review challenges the traditional view that patents foster innovation, suggesting instead that patents may harm new technology, economic activity, and societal wealth. These results may have important policy implications because many countries count on patent systems to spur new technology and promote economic growth.

The study is: Patents and the Regress of Useful Arts, by Dr. Andrew W. Torrance & Dr. Bill Tomlinson, Colum. Sci. & Tech. L. Rev. 10 (2009): 130 (Published May 15, 2009).

As those familiar with my libertarian and IP views know, I'm not a utilitarian (see my There's No Such Thing As A Free Patent; Against Intellectual Property); but almost all IP proponents are, and claim that IP is "worth it" because it generates additional innovation the value of which is implicitly presumed to be obviously much greater than the relatively trivial cost of having an IP system. So it is striking that there seems to be no empirical studies or analyses providing conclusive evidence that an IP system is indeed worth the cost. Every study I have ever seen is either neutral or ambivalent, or ends up condemning part or all of IP systems. Utilitarian IP advocates remind of the welfarist liberals skewered by Thomas Sowell in his The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy--liberals continue to advocate policies long after there is overwhelming evidence these policies do not work, even by the naive, socialistic standards of their proponents; likewise, utilitarians keep repeating the mantra that we need patent and copyright to stimulate innovation and creativity, even though every study continues to find the opposite.