Alex Tabarrok who blogs at Marginal Revolution has suddenly turned his attention to patents and their pernicious extension (or perhaps I have only just become aware of his interest) link here. He has written an e-book and cites a number of favorable reviews. He argues that patents have not only failed to encourage innovation but have instead slowed it down based on data over a period of years and citing the legal costs of patent suits decreasing the returns from innovation.

He returns to patents in a later blog where he comes down hard on one example: the extension of protection for the development of a new medical procedure link here. His example of choice has been much in the IP news recently as the Supreme Court heard oral arguments on the granting of a patent on a method of determining how much of a medicine long since out of the reach of its original patent should be adjusted, depending on the patient's tests. He then does a riff on the general expansion of patent protection to such new fields as software.

Worth reading and thinking about.

The New York Times ran a surprisingly long and tough piece from Reuters titled Making Sense of Patent Law link here. It opens, saying "The United States Supreme Court has a chance to reverse the mission creep in patent law. The system is supposed to reward inventors but not stifle innovation. Fuzzy and overly broad concepts like thought processes generally are not protected. Yet one company, Prometheus Laboratories, reckons it owns a method for interpreting how patients react to a drug."

It then traces the history of patent law covering ideas which consistently forbade such patents but by 1994, was patenting "any software with a practical purpose."

The instant case began "in 2004, [when] Prometheus claimed the Mayo Clinic had infringed a patent on a seemingly simple process for diagnosing patients. The procedure was the kind of analysis based on observation that doctors do every day, the clinic maintained. But the Federal Circuit upheld the patent. The Supreme Court is to hear oral arguments in the case on Dec. 7."

"The seven years of litigation are one cost of a broken system. The number of federal patent infringement lawsuits has soared, to more than 3,300 last year from about 800 in 1980. Legal experts say the suits have cost companies hundreds of billions of dollars a year."

"But the greater expense may be lost innovation. The risk of getting sued discourages research investment and delays medical breakthroughs the opposite of what those who devised the patent system intended. Reversing years of damaging precedents is hard, but a Supreme Court ruling against Prometheus would be a start."

Hope rises. We will be watching.

Nick Bilton poses an interesting question in the New York Times on whether you can copy physical objects without violating copyright link here. His answer is yes and he found intellectual property lawyers who supported that view. He gives several examples, based on 3-D printers actually producing copies of a cup and other useful physical objects, either from the object or from photographs of the object. He asserts that copyright does not cover things that are useful.

This conclusion raises several questions in my mind. What if the object is patented rather than copyrighted? What if its usefulness depends on a patented process that is essential to the usefulness of the object or its copy?

Finally, how long before the proponents of intellectual property manage to get the law changed, either through legislation or judicial interpretation? Even now, you can imagine the outbursts of outrage once something significant is "stolen".

Maybe we'll be lucky but don't count on it.

Here is a thought provoking article on how the distribution of income gives the top one percent such a disproportionate share of output link here. It finds the source in French anarchist Proudhon's cry that "Property is theft," and asserts "The biggest "theft" by the [richest] 1 percent has been of the primary source of wealth - knowledge - for its own benefit."

It goes on to make the point that knowledge is the possession of all and not to be kept locked up. The article doesn't say how much copyright and patents have to do with this, but it should have.

Google has by now put 8 million US patents and 3 million patent applications on line link here. In addition to describing what it is doing, it sets out its objective in doing so thusly:

"As part of Google's mission to organize the world's information and make it universally accessible and useful, we're constantly working to expand the diversity of content we make available to our users. With Google Patents, you can now search the full text of the U.S. patent corpus and find patents that interest you."

Google has had its own issues with patents. Like much of the rest of the software industry, it avoided filing for them for some years, but competitive patenting has taken over the industry in the drive to gain a monopolistic advantage or prevent others from doing so by establishing a patent pool to force cross licensing. By making it easier to challenge applications and even granted patents, putting them on line should make bad patents rarer. The problem of identifying and proving prior art remains.

The New York Times has picked up on the recent proposal by the Administration to modify copyright law by invoking a new international agreement (ACTA) which would give US copyright protection previously given copyright protection under foreign law link here. These were in the U S public domain in the past but now they would be recognized as copyrighted. The Times opposes this.

The operative paragraphs read:

"As the petitioners said in their brief , "no treaty can authorize the government to do what the Constitution otherwise prohibits." Chief Justice John Roberts Jr. put it this way during argument: "One day I can perform Shostakovich; Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?"

"Copyright gives writers and others the incentive to create by giving them exclusive right to their work. But Congress's power to grant copyright is limited in time and scope so that works can move into the public domain, where they become an essential part of our culture. The government must find other ways to comply with the trade treaty without curbing free expression."

Copyright sanity is finally getting some well warranted coverage and rational support from responsible journals.

Matt Yglesias has a nice blog piece on the cost of extending copyrights, adding a wrinkle of his own link here.

He writes in response to PETER DECHENEY's piece which provides details on US trade agreements and legislation that extend copyright to foreign copyrighted works that had not previously been covered as they were in the public domain and the period of copyright by another 20 years link here. Yglesias point was a simple one: that so much of what is produced in the arts is derivative (i.e., it has a hard time being anything else), covering more and more works with copyright greatly complicates and raises the cost of producing new works you have to get "rights" or permission at cost in both time and money.

Validation for his point can be found in the many works that have not been produced like plays as the cost of getting the rights proved impossible to cover.

A day later, Robert Barnes goes into the same subject link here. And with lots of examples of the rise in the cost of producing or performing such derivative works. "Orchestras used to be able [to buy the score to] the Prokofiev symphony for $100, he said, and play it until the sheet music was worn out. Now it must be rented, at a cost of several hundred dollars for each performance.

Thus, copyright meant to encourage innovation does exactly the opposite.

Dean Baker takes issue with a Washington Post story link here on doctors shilling for drugs and drug companies paying them big money to push greater use of their drug including for uses prohibited by FDA link here.

The Post article is a routine description ("fair and balanced" as the big papers like to claim) leading to the fact that the doctors are well-paid for what amounts to treating patients while never seeing them. In some cases they push uses that are criminal, as when they recommend or prescribe a drug for unapproved use.

Baker's problem with the Post piece is its failure to recognize the central role of drug patents in this business. Without the patent, the drugcos couldn't charge the prices that make the big marketing payoffs and their huge profits possible.

Baker fails to note that this might just have something to do with the high cost of health care in the US (highest in the world) or the funding to pay campaign funds to crucial legislators to leave the system unfixed.