Archives for the 'Patents' Category
What Is This Drawing About?
Arts+Labs, a new coalition “committed to a better, safer internet that works for both artists and consumers,” has written up Friday’s Cato Institute book forum on The Crime of Reason on their ArtLab blog. Author Robert B. Laughlin of Stanford University will present his book, then we’ll have comments from Tom Sydnor of the Progress and Freedom Foundation.
I’ve gotten a glimpse at the slides Dr. Laughlin will be using, and this Nobel laureate in physics also turns out to be something of an artist.
Join us Friday to learn what this drawing is all about.
Me around the Web
Three new pieces by me are up this week:
Intellectual Property Laws and Government Security Threaten Science and Knowledge
If you find the title of this post provocative, you’ll be interested in a Cato Institute book forum on Friday, October 10th.
In The Crime of Reason, Nobel laureate in physics Robert Laughlin argues that intellectual property laws and government security demands threaten the development of new knowledge. Without change, we risk bequeathing our heirs a world where knowledge is criminalized and our intellectual tradition of unfettered inquiry is lost.
The event should be a fascinating inquiry into the role of information and information rules in our society. Thomas Syndor of the Progress & Freedom Foundation will comment. I’ll be your humble moderator. It’s noon on Friday, October 10th, at the Cato Institute, 1000 Massachusetts Avenue, NW, Washington, D.C. Luncheon to follow.
You can register for the event here.
Taxpayer Patent Extortion
Wow. Mike Masnick writes about NASA’s plan to auction off some of its patent portfolio to the private sector. When I read this I had to do a double-take: NASA has a patent portfolio?
This is absurd. The purpose of patent law is to promote the progress of the useful arts by giving inventors an incentive to invent. NASA engineers already have an incentive to invent: they’re being paid taxpayer dollars to do so. Accordingly granting patents to NASA is a pure dead-weight loss to the economy. It restricts the free flow of ideas with no offsetting benefit from improved incentives. Indeed, this is precisely why the copyrights on government-created works are immediately placed in the public domain.
Why isn’t there a similar doctrine in place for patent law? I can’t see any reason government agencies should be allowed to apply for patents in the first place, but if they are going to do so, they should be placed in the public domain the same way copyrights are. How can it be legal for a government agency to use taxpayer money to perform research and then obtain patents that effectively prohibit most taxpayers from using the results of that research? If I helped pay for research, I should be free to use the results.
Software and a Digression
My recent comments on a developers experiment in combatting software piracy, posted here.
And an absolutely brilliant adventure in free speech marital event planning, here (OT).
The Patent System is a Hashtable without a Hash Function
[This post will be geekier than average. Apologies in advance to non-programmers]
One of the interesting aspects of Intellectual Property and Open Source is the frequent use of programming metaphors to explain legal concepts. Given the audience, it’s a clever approach. Most of the analogies work well. A few fall flat.
I found one analogy particularly illuminating, albeit not in quite the way Lindberg intended. He analogizes the patent system to memoization, the programming technique in which a program stores the results of past computations in a table to avoid having to re-compute them. If computing a value is expensive, but recalling it from a table is cheap, memoization can dramatically speed up computation. Lindberg then compares this to the patent system:
The patent system as a whole can be compared to applying memoization to the process of invention. Creating a new invention is like calling an expensive function. Just as it is inefficient to recompute the Fibonacci numbers for each function invocation, it is inefficient to force everyone facing a technical problem to independently invent the solution to that problem. The patent system acts like a problem cache, storing the solutions to specific problems for later recall. The next time someone has the same problem, the saved solution (as captured by the patent document) can be used.
Just as with memoization, there is a cost associated with the patent process, specifically, the 20-year term of exclusive rights associated with the patent. Nevertheless, the essence of the utilitarian bargain is that granting temporary exclusive rights to inventions is ultimately less expensive than forcing people to independently recreate the same invention.
The caveat at the beginning of the second paragraph is huge. In the software industry, at least, any patent filed in the 1980s is virtually worthless today. But even setting that point aside, Lindberg’s analogy provides a helpful analogy to explain why patents are a bad fit for the software industry: it’s like implementing memoization using a lookup table without a hash function.
Continue reading this post »
Van Lindberg on “Intellectual Property”
I’m reviewing Van Lindberg’s Intellectual Property and Open Source for Ars Technica. The first chapter is an introduction to the theoretical concepts that Lindberg describes as the “foundations of intellectual property law”—public goods, free-riding, market failure, and so forth. I’ve found several of the assertions in this chapter frustrating.
For example, on p. 8, Lindberg writes:
We want more knowledge (or more generally, more information) in society. As discussed above, however, normal market mechanisms do not provide incentives for individuals to create and share new knowledge
Italics mine. Now, this claim is simply untrue. Normal market mechanisms do, in fact, create incentives for individuals to create and share new knowledge. Mike Masnick has offered one excellent explanation of how they do so. See also Chris Sprigman and Jacob Loshin and the restaurant industry. Plainly, lots of new knowledge is created without the benefit of copyright, patent, or trade secret protection.
It’s likely that Lindberg is just being sloppy here, that he meant that markets do not provide sufficient incentives for creativity. This is a perfectly plausible view—indeed, it’s the mainstream view among scholars of patent and copyright policy. But even this weaker formulation is controversial. Boldrin and Levine, for example, are two respected economists who deny it. Even this weaker formulation, therefore, is too strong. Certainly many scholars (myself included) believe markets produce insufficient creative expression, but the point has certainly not been proven conclusively.
Continue reading this post »
ACT to Come Out against DMCA and Software Patents?
I was pleased to see Braden’s excellent new paper on the use of self-serving lobbying tactics to limit competition and promote particular business models at the expense of others. As Braden and his co-author point out, some of the most important competition in the software industry has become less about products than about business models. Some software companies sell the software directly, while others give software away as a means of selling hardware, services, or advertising. And in many cases, public policy debates in the software industry are thinly-veiled attempts to give some business models unfair advantages over others.
Braden produced a chart that gives some helpful examples of policies that tilt the economic playing field toward one business model at the expense of the others:
As you can see, software patents promote proprietary software business models at the expense of business models based on giving software away for free (and, it should be said, at the expense of people who want to give software away for free on a non-commercial basis). Similarly, the DMCA promotes proprietary software business models. They neglected to put it on the chart, but the flip-side is obviously true: the DMCA harms free software, commercial and otherwise, by making unauthorized interoperability with DRMed software a crime.
Continue reading this post »
Paper or Plastic?
Hit and Run has the story of a patent that should never have been granted.
Jeers and Cheers for Prof. Duffy
I’ve got two new articles on patent reform out today, and by sheer coincidence, both of them are related to the work of law professor John Duffy. First, over at Ars Technica, I analyze John Duffy’s article at Patently-O, where he argued that the US Patent Office has shown a growing hostility toward software patents over the last couple of years. He seems to be right that the Patent Office is becoming more skeptical about software patents, but of course we have a difference of opinion about whether this is a good thing:
Duffy seems to regard the end of software patents as a calamity for innovative companies, but his argument is awfully thin. Duffy focuses on Google’s PageRank patent, which he has long regarded as a poster child for software patenting. He describes it as “surely one of the most famous and valuable of all modern software patents,” and suggests that the invalidation of Google’s patents would be a calamity for the company. Curiously, however, he never explains how Google benefits from this or other patents in its portfolio.
Google derives little, if any, of its revenue from patent royalties and has managed to dominate the search engine marketplace without suing its major rivals for patent infringement. Indeed, it appears that the primary function of Google’s patent portfolio is as a defensive stockpile to be used if any competitors should sue it for patent infringement. If that’s true, then the only real effect of software patent abolition on Google would be that the company could lay off its patent lawyers.
Patent Failure Review
Over at Ars Technica, I review Bessen and Meurer’s Patent Failure. It’s a fantastic book that has had a big effect on my recent thinking about patent issues. Check it out.
Nobel Laureates against Software Patents
Did you know that one of last year’s winners of the Nobel Prize in economics was a software patent critic? I didn’t. Looks like a good paper. I wish I’d noticed it back when Maskin’s Nobel prize was announced.
John Calfee on Government-Sponsored Innovation
I have in past years learned a great deal from reading John Calfee’s book “Fear of Persuasion,” on the consumer benefits of advertising. Now he is writing on drug development in “The Indispensable Industry,”
http://www.american.com/archive/2008/may-june-magazine-contents/the-indispensable-industry
He considers, one after another, various proposals to fund drug development using public funds, prizes, or other plans. He writes:
There are two problems with government and nonprofit R&D as a substitute for the traditional for-profit industry. One lies in what the nonprofit sector has not tried to do; the other lies in what it has tried to do.
We have to remember that no laws, regulations, or traditions have prevented the public research system from inventing the drugs we need if it was really capable of doing that and no one else was. In principle, publicly funded drug research can run all the way from basic research through clinical trials to FDA approval and, if the believers in this approach are correct, it can be conducted at reasonable costs including the inevitable losses from drilling dry holes.
But let’s look at the record. If we really had a reliably productive government-nonprofit drug development system, we should have seen its fruits by now. Those fruits would have arrived in such areas as the testing of off-patent drugs with great potential and the creation of new drugs where profit incentives are inherently weak because of inadequate intellectual property laws. We should have seen, for example, clinical demonstrations of aspirin for heart disease and cancer much faster than actually occurred…
The piece is well worth reading in its entirety.
Libertarians for Patent Trolling
Jamie Plummer points me to this story suggesting that Libertarian vice presidential candidate Wayne Allen Root is a patent troll. The patent looks like your typical software patent:
A method and apparatus for facilitating electronic commerce between suppliers of predictions and consumers of predictions. Suppliers provide their predictions on the outcomes of future events in one or more categories, and each supplier’s accuracy is tracked. Consumers interested in obtaining predictions for one of more of those categories are allowed to selectively choose which suppliers’ predictions they wish to view. The suppliers are compensated based on the number of consumers who view their predictions. In one embodiment, the consumers pay for the predictions that they view while the suppliers are paid a portion of the revenue obtained from the consumers. In another embodiment the consumers are not charged and all revenue is derived from advertisers. The system in accordance with the present invention includes a controller which automatically credits each supplier’s account, aggregates earnings for that supplier, and automatically sends an electronic pay order to the Federal Reserve’s automated clearinghouse to thereby facilitate payment.
I was already unenthusiastic about the Barr-Root ticket. This is another reason to be skeptical.
Interviews
I’ve doing several interviews this week. In a couple of hours I’m interviewing Patri Friedman about Seasteading. Then, tomorrow I’ll be talking to Jim Bessen of Patent Failure fame, and the president of the Encyclopedia Britannica. What should I ask them?
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