Darin Gibby, a patent attorney, has written the book Why America Has Stopped Inventing?. Let me first say that I agree with Mr. Gibby’s premise that America has quit inventing and that it is hurting our economy.
The book has an excellent review of the history of how patent law developed in the US, with the 1836 Patent Act playing the hero of the book. The Act was modeled on the patent statute in Venice in the 1400s, according to Gibby. This leads to an explosion of invention in the United States and in the economy. This story is told through the lens of the great inventors of the time, including Morse, Colt, and Goodyear. These stories are well told and compelling. The book is a fount of knowledge about the early history of inventing and patent law in the United States.
The book argues that the change in the patent laws resulted in a brain drain from England and that there was an explosion of invention in the US. The book states:
The rate of innovation as determined from the number of patents increased six times from 1840 to 1850, nine times from 1850 to 1860, and 13 times from 1860-1870, as compared to the increase in population.
The book claims that our per capita rate of inventing is less than half of what it was in the 1860s. The US rate of inventing has decreased over the last decade.
The conclusion of the book is that our patent system is broken and this is hurting innovation and the US economy. While I generally agree with the conclusion, I believe the premise could have been better supported. Also, I think it is impossible to talk about the lack of invention without also mentioning the restrictions on raising capital by inventors. Perhaps the biggest impediment to raising capital has been Sarbanes Oxley. This is not mentioned at all in the book.
The biggest downfall of the book is that the author calls a patent a monopoly. A patent is not a monopoly. 35 U.S.C. 261 makes it clear that a patent is personal property. Patents have all the attributes of property and none of the attributes of a government monopoly. Property rights arise from of the act of creation – but for the creator the item would not exist, therefore they have a property right in the item. Inventing is creating a new product, process, or service that did not exist before. The fact that a patent attorney could make this mistake is hard to believe, but more importantly I believe this completely undermines the thesis of the book.
The book has a number of specific proposals for fixing the patent system.
Complex Patent System: The book states that the biggest reason for our inventive decline is the overly complex, over administered, and underfunded patent system. I agree that our patent system has become overly complex, too expensive, and overly officious. The author believes this is the result of a judicial reaction to the Wright brothers’ patent, which he believes was too broad. Here I completely disagree with the author. The Wright brothers’ patent broadly claimed the ability to control an airplane by “having lateral marginal portions capable of movement to different positions above and below the normal plane” of the wing.” (USPN 821393) The author believes the Wrights only invented wing warping. I disagree. The Wright brothers clearly showed that any method of altering the flow of air over the wing could be used to control the airplane. If the Wright brothers had been limited to the author’s interpretation, then Glenn Curtis and others would have been able to free load off of the Wright brothers’ invention.
The author also argues that the growth of the airplane industry was retarded by the Wright brothers attempting to enforce their patent. This argument is also made by anti-patent forces and is without any logical basis. We have no idea how long it would taken for someone else to have created a controllable airplane if the Wright brothers had not done so. It is just as likely that, but for the Wright brothers it would have taken years for someone else to invent control surface for airplanes. If there was any delay in the development of the airplane, it was the fault of Glenn Curtis and others who refused to pay the Wright brothers for their invention.
I think it is also inexcusable that the book does not mention the detrimental effects of antitrust law on patents. The anti-patent backlash in the early 20th century was not a result to the Wright brothers patent, but to the rise of antitrust law. The author’s lack of understanding that patents are a property right and not a monopoly has blinded him to this simple fact.
Require Models: The author wants us to return to a patent system that requires models. He suggests that computer models would be acceptable, so we would not have the problem of storing these models. The author’s main reason for this requirement is based in the belief that the Wright brothers, Seldon, Bell and others received overly broad patents or really were not the true inventors. In the case of Bell, the author suggests that Bell’s attorney copied Elisha Grey’s patent application by hand into Bell’s application upon filing the Bell application. I cannot comment directly on these assertions. But the book does not even mention that there was an interference between Bell, Grey, and Edison (see Bell). All of these inventors had top patent attorneys and I seriously doubt that hand copying part of another person’s application would have survived very long in an interference.
The author seems to want to use models to limit the scope of the claims. This would allow inventors who improved another person’s invention not to have to pay royalties for using their underlying invention. I don’t see any advantage to this system and I believe the author has fallen for the anti-Wright brother, and anti-Bell propaganda.
Abolish Obviousness Standard and Doctrine of Equivalents: The author makes a strong case for abolishing the obviousness standard, which I agree with. He explains that the obviousness standard is subjective and unworkable. He suggests that the doctrine of equivalents and the obviousness standard are opposing ideas used to overly broaden or overly narrow the rights of an inventor. I did not initially agree with the author, but he made strong points in defense of his thesis. Specifically, he argues that eliminating the obviousness standard would allow inventors to craft their claims to correctly define their invention. As a result, he believes that it would be unfair for inventors to then be able to expand/change the scope of their invention in litigation. The only problem with the author’s argument is the doctrine of equivalents has been dead for all practical purposes for at least twenty years.
The author also makes the excellent point that eliminating the obviousness standard would significantly reduce the backlog of unexamined patents. His reasoning is that moving to an objective system of patentability would eliminate a lot of wasted effort on the part of the Patent Office and Applicants.
Cut the Current Twenty-Year Patent Term in Half: I disagree with the author and I think his point of view is based on the erroneous belief that patents are a monopoly. Shortening the term for patents is likely to reduce the value of investing in new inventions. This would decrease the rate of new technologies being created and introduced into the economy. The result would be slower economic growth and lower per capita incomes.
Curtail the Continuation Practice: Continuations are critical for start-up companies to reduce their cost. While I agree that eliminating the obviousness standard would reduce the cost of filing patent applications, this advantage is unlikely to be enough to protect our highly innovative start-up companies.
First to File System: The author buys into the absurd idea that eliminating interferences is going to free up resources at the Patent Office. With less than 100 interferences a year, this is very unlikely to occur. He also argues that this will be good for individual inventors and startups. While he is correct that interferences are too expensive for individual inventors (start-ups), the solution is not to subvert the Constitution and award exclusive rights to the first person to file instead of the inventor. The solution to this problem is to reduce the absurd cost of all federal litigation.
There have been several studies on the effectiveness of changing from a first to invent system to a first to file. All these studies have shown a decrease in patenting by the most innovative groups in our country – namely individual inventors and start-ups.
Conclusion: Overall there are many important points in this book. But the author’s incorrect labeling of a patent as a monopoly undermines many of the most important points he is trying to make.
Keynesians believe that you can create economic growth by spending government money. The goal of government spending is to increase aggregate demand. If just increasing demand was the way to increase economic growth, then stealing would also create economic growth. Now you make object that government spending is not like theft. The recipient of the government money did not break any laws when receiving government money, but from an economic point of view the recipient did not provide any economic value for the goods or services they received from the government money and the same is true of the thief. The thief may have expended effort to obtain the money to buy various goods and services, but they did not exchange anything of economic value. Thus, neither the thief nor the recipient of government money provide any economic value for the items they receive because of their theft/welfare. As a result, theft should provide the same economic benefits as government stimulus programs. Since increasing aggregate demand is the goal, thieves perform this function admirably. Most thieves do not save their money and they do not invest, they spend their money – this is part of what makes them thieves. This ensures that the stolen wealth is immediately converted into demand (spent), which is good according to Keynesians. Money that is saved or invested does not immediately increase aggregate demand, which is the cause of economic slowdowns according to Keynesians.
Economic growth or wealth is not created by spending, but by increasing the technological level of the country. If spending (consumption) created wealth, then a farmer could get rich by eating their seed corn. This is complete non-sense. Only by creating inventions or by investing in other people’s inventions can a country increase its per capita wealth.
There are three ways that the government can take money from productive people and give it to non-producers to spend. The most straight forward is to (immediately) tax it from producers. In this case, it is clear that the government is taking money (productive effort) from productive people and giving it to non-producers of the wealth. This is exactly what a thief does. We know that this is not a 100% efficient process, since there is the cost of collecting (stealing) the wealth of the productive people and giving it to non-producers. This requires numerous government bureaucrats and effort on the part of honest taxpayers. However, this is not the only loss in the transfer of wealth. The government has substituted its judgment or worse the judgment of non-producers for producers in how to allocate wealth (productive energy). This means we are substituting the judgment of people who have not proven the ability to create wealth for wealth producers. We know that most of the recipients will not invest in creating new technologies or diffusing new technologies, as result we know that this money will not result in an increase in economic growth. Note that government statistics will not show the whole result of this decrease of economic output, since government statistics of economic output measure consumption, not production. The Gross Domestic Product is calculated as GDP = private consumption + gross investment + government spending + (exports − imports). At first this formula would appear to balance out government spending and gross investment, but the government can only measure spending, even for gross investment. As a result, when government steals from producers this does not show up as a decrease in gross investment if the producers do not believe that the present climate is not conducive to investment. This is like the government forcing a farmer to eat or give away their seed corn, it does not show up as a net reduction in planting (investment) until later, but it does show up as private consumption. As a result, government stimulus numbers inflate the GDP incorrectly during a stimulus program and under estimate the GDP in times of private sector growth.
The government may borrow or use inflation to fund its stimulus programs. When the government borrows money or causes inflation the overall result is the same, but the mechanism is different. If the government borrows in order to pay for its stimulus program, then this reduces the amount of investment capital available and reduces private sector investment by crowding out investment dollars. It also increases the cost of labor, goods, and services by creating artificial demand. In addition, it results in higher tax rates than would otherwise be necessary in order to pay back the money borrowed reducing long term growth. Inflation is just a way of taxing (stealing) from everyone’s paycheck, savings, and investment. The net result is to transfer money from productive people to unproductive people. Since inflation does not immediately show up in the Consumer Price Index, it artificially inflates the GDP during stimulus programs at the expense of future economic growth. Inflation does not immediately show up in the CPI because the government measures the CPI at distinct intervals and because the CPI does not distinguish between changes in demand and inflation (an increase in the amount of money). Much like the way the government measures GDP, the CPI understates the inflation during times of economic contraction and overestimates the CPI in time of economic growth. Increased demand for products and services during a time of economic growth shows up as inflation in the CPI numbers, while decreases in demand during recessionary periods shows up as deflation or low inflation in the CPI numbers.
Now some people may complain that the people being taxed are not (necessarily) producers. For instance, the banks that were bailed out by TARP or the carry trades created by the Federal Reserve, or other corporations (GM, Chrysler, GE, etc.) bailed out by the government. However, the government cannot fund itself except by taking money (wealth, productive effort) from producers ultimately. Taxing government leaches results in a circular system that is negative sum game that would collapse very quickly, but for producers. Taxing non-productive entities does not change the basic analysis above.
Now other people may complain that Keynes actual theory was for the government to store reserves during times of economic prosperity and then spend the reserves during economic downturns. While this may be preferable to a spendthrift government, such as the U.S. presently, it does not change the overall analysis. It just means that during times of economic prosperity, government is overcharging, has a higher tax rate than necessary. This results in underinvestment in technological, which means a lower rate of economic growth rate in the future. In economic downturns, Keynes still advocated spending on things that created immediate demand, not on investing in inventions. Such as paying people to dig holes and then filling them up. Thus, this also lowers long term economic growth. Finally, Keynes did not take into account the large overhead (entropy) necessary to take this money away from productive citizens.
Stimulus programs overinflate the GDP while the stimulus money is being spent, by ignoring the decrease in investment capital. This decrease in investment capital results in lower long term economic growth, since it means there is less money (wealth) to invest in new technologies in the future.
Not surprisingly, this also results in higher unemployment rates. There was a recent study by Timothy Conley from the University of Western Ontario, Canada Economics Department and Bill Dupor of Ohio State University which showed that the U.S.’s recent stimulus program killed two private sector jobs for every job saved or created. This is just one of many examples that shows Keynesian economic theory is truly VODOO ECONOMICS
IF KEYNESIAN THEORY WORKED, THEN THEFT WOULD INCREASE GDP AND WEALTH.
 For those engineers and people with a mathematical background saving is like a capacitor (integrator), draining the capacitor increases the short term current, but reducing the current in the future.
 Even if the money is borrowed from foreign investors, it reduces the amount of investment capital. It also reduces the willingness of foreign investors to invest inU.S. companies.
 A carry trade is when the Federal Reserve allows banks to borrow money at a lower interest rate than they can loan it out at (risk free). The most egregious example is when political powerful banks (corporations) can borrow from the Federal Reserve at a lower rate than short term Treasury Bills are yielding. This takes absolutely no intelligence to make huge amounts of money, as long as the Federal Reserve will loan out money. This is how the TARP banks have been able to pay back their TARP loans. However, it is just a fraud and the cost of this fraud is being paid for by the American taxpayer/worker.
Hear is an excellent article, IT’S OFFICIAL: The IPO Market Is Crippled — And It’s Hurting Our Country in the Business Insider, on the damage we have done to our capital markets. The article starts out by showing that many of our biggest companies went public when they were very small. At the time there were numerous underwriters and often the main inventors were individual investors. For instance, the article explains:
As recently as 1986 Adobe had an IPO raising $6M. None of these companies could have gone public in today’s environment even adjusting for inflation. Virtually all the buyers at the time were individuals and there was a robust “over the counter” after market for young companies.
The article then explains that a company has to have a market valuation of $250M or more to be viable in today’s market. My estimates are higher. The article points out that a major reason for this change in the market is because of Sarbanes Oxley or SOX, which imposes onerous accounting requirements on companies. The article then discusses some attempted solutions to this problem. (I have suggested an alternative in my post Circumventing Sarbox and the IPO drought)
This has been a disaster for the venture capital industry. As a result, VCs are looking for companies that can exit by M&A at earlier states. VCs are also not investing in capital intensive companies.
Unfortunately, the article calls for half measures of curtailing but not eliminating SOX. They suggest this course of action despite the fact that they do not single benefit provided by SOX. The authors point out that:
The number of annualU.S.issuers listing IPOs onU.S.exchanges has declined since 1996 from 756 to a low of 36 in 2008 and 50 in 2009 and 120 last year according to Dealogic. By contrast, there have been 346 Chinese issued IPOs listed onChinaexchanges in 2010 even though the U. S. GDP is 3x larger thanChina’s.
This is just one more example of how were are exporting our innovation and jobs overseas.
The insane thing about our securities laws is that in the U.S. you have to hire a lawyer to invest in a non-public company, but you can blow your money in Vegas, Atlantic City, etc freely. One activity creates jobs and wealth and creates value. The other is a less than zero sum that destroys wealth.
This intriguing question and its implications for US economic policy are tackled in the groundbreaking book Great Again, by Henry R. Nothhaft with David Kline. They answer the above query with a series of questions:
Could a twenty-year-old college dropout, just back from six months in an ashram somewhere, attract funding for a capital-intensive venture based on the manufacture (yes, the manufacture) and sale of a $2,500 consumer product unlike any that had ever been bought by consumers before? One whose potential uses were at best unknown, and possibly nonexistent? And one for which the total current market size was exactly zero?
Not only could Apple not get funded today, it probably could not go public. Nor would Apple have received its first patent (USPN 4,136,359) in only 20 months. The book asks “how many of today’s Apples are not getting a chance?”
The authors use the above example to make a broader point that theUSis failing economically and technologically because of the policies we are pursuing. They show that all net new jobs created in theUSsince 1977 (and possibly longer) were created by startups like Apple. All increases in real per capita income are due to new technologies and most revolutionary/disruptive technologies are created by startups and individual inventors. So what are the policies that have undermined our economy, by undermining technology startups?
The book examines five areas:
1.Role of regulations. The Authors show that our tax policies, Sarbanes Oxley and our indifferent (some might say arrogant) regulators’ application of well meaning regulations to startups is driving them either overseas or out of business.
2. Underfunding the patent office. This is costing theUS millions of jobs and billions in GDP. According to the authors, each issued patent is worth 3-5 jobs on average, particularly patents issued to startups.
3. Manufacturing policies in the US. Manufacturing is key, particularly in a world that does not respect property rights in inventions, to ensuring that theUS profits fromUS innovation and not other countries. TheUS is also losing the global battle for human talent.
4. Battle for global talent. Our restrictive immigration policies are depriving theUS of talented entrepreneurs such as Andy Grove, founder of Intel.
5. Funding for research. The book shows that our spending on basic science and engineering is not only declining as a percentage of GDP, but the system has become short-term oriented and bureaucratic.
While this book tackles complex issues, it is a quick easy read. It is full of interviews from entrepreneurs, venture capitalists, and technologists who built America’s technology startups over the last three decades. Great Again provides numerous real life examples to illustrate its points.
This pioneering book shows how the US can create jobs and increase per capita income. The policy prescriptions are based on solid science. Just cutting government spending (balancing the budget) will not cause theUSeconomy to grow vigorously, we need pro-growth policies. The authors are some of the few people that understand what policies are needed for the US to be GREAT AGAIN.
Great Again: Revitalizing America’s Entrepreneurial Leadership, by Henry R. Nothhaft and David Kline
I was confronted with the statement that there are “Hugh transaction costs related to patents.” This statement implies the assumption that these transaction costs are unjustified. I disagree with the premise, but since all systems can be improved I will provide a number of specific proposals to reduce the transaction costs.
The alternative proposed by the author of this statement, was to shorten the length of patents and increase government funding of R&D. The proposed system of government funding for research is not effective substitute for patents. The history of government funding for research is mixed at best and much more expensive than patents. The US patent system is completely funded by user fees (in fact Congress has been stealing user fees to pay for their pet projects). The patent system has been significantly more effective at stimulating innovation than government funded projects – see Zorina Khan’s work including her book The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920 (NBER Series on Long-Term Factors in Economic Development) also see The Most Powerful Idea in the World: A Story of Steam, Industry, and Invention, by William Rosen.
Litigation Costs: There has been a very effective propaganda campaign to suggest that the patent litigation is out of control. The implication is that there is an explosion in patent litigation. This is just not true.
“The real facts of the so called litigation crisis are that for the past two decades the number of patent lawsuits commenced annually has been about 1.5 percent of all patents granted. In 2006, it was 1.47 percent. This is business as usual. Most patent lawsuits, moreover, settle before trial. In 1979, some 79 percent of patent cases settled before trial, while in 2004 almost 86 percent did. Matters are actually improving.
Also, the U.S. has few patent trials. For instance, in 2001 only 76 patent lawsuits were tried and only 102 went to trial in 2006. By no measure can 102 patent trials be considered a national litigation crisis. The annual report of Federal Judicial Caseload Statistics, which is on the Internet, provides the factual antidote to false claims of a litigation crisis (www.uscourts.gov/ caseload2006/contents.html).” see http://www.manufacturingnews.com/news/07/0629/art2.html
Even though this data is a little old nothing has changed in the last several years. In a $14.4 trillion economy built on technology this is anything but a litigation crisis.
There is also a myth that there is a patent quality issue in the US. This is not supported by the facts.
“As to the massive numbers of “unworthy patents” argument, the real-world test is how many patents are challenged and the outcome of those challenges. Between 1981 and 2006 the USPTO issued more than 3.1 million patents. In that period, 8,600 were challenged at the Patent Office through inter partes and ex parte reexaminations. The number challenged amounts to less than three-tenths of one percent. Of those challenged, about 74 percent resulted in claims narrowed or cancelled. In addition, almost 60 percent of the relatively few patents challenged in a court trial are sustained.
My point is that the USPTO’s work is certainly not perfect, but the Patent Office is also not pouring out a stream of bad patents.” http://www.manufacturingnews.com/news/07/0629/art2.html
By every objective measure: R&D per patent, GDP per patent, and number of citations per patent patent quality is increasing. See https://hallingblog.com/2010/01/07/patent-quality-nonsense/ and https://hallingblog.com/2009/08/18/patent-quality-myth/.
Cost and Time to Obtain a Patent: When Edison applied for his light bulb, he received a patent in 3 months. The reason it takes so long to obtain a patent today is because Congress has been stealing money from the Patent Office.
I have an angel investor friend who was a highly successful entrepreneur who complained that when he invested in a company he did not know about hidden prior art and this created a large amount of uncertainty. He supported the idea of publication of patents. However, the answer was not publication of patents, which breaks the social contract, but fully funding the patent office – as the Edison example above proves.
Disingenuousness of Libertarian Argument about Costs of Patents: All property rights systems have some costs involved in them. GE employs 600 attorneys to comply with tax laws, it probably employs another 600 to comply with SOX, discrimination laws, environmental laws, health and benefit laws. However, it probably employs less 100 patent attorneys. Their patent costs are a drop in the bucket compared to dealing with tax and other regulatory laws. The Libertarian attack on patents in light of all the other burdens imposed on business is disingenuous.
Patents are property rights and companies’ purposeful infringement of other people’s property rights is not a regulatory burden, it is the result of purposeful belief that they can get away with the theft. It is called efficient infringement. See “Technology Theft as a Business Strategy” https://hallingblog.com/2010/03/24/pat-choate-technology-theft-as-a-business-strategy/
Patent Litigation: While patent litigation costs are similar to litigation costs generally, there are a number of things that can be done to make the system more efficient. Some are changes to government and some are private sector initiatives.
Secondary Market/Title Insurance for patents. Before the advent of title insurance it was very expensive to buy a piece of land. You had to pay an attorney for a title report that did not come with any insurance. Lawsuits over the boundaries of real property were epidemic before the advent of modern survey tools. Patents are in the same position where no title insurance has been created. Unfortunately, antitrust law undermined the first efforts to create a title insurance/secondary market for patents. Patent pools were a way to determine the validity of patents, enforce patents, and widely license the patents in a cost efficient manner. But the antitrust idiots said that they were illegal. Today, Luddites are using the rallying cry of “patent troll” to kill off the beginning of a secondary market – see https://hallingblog.com/2009/09/18/in-defense-of-patent-trolls/ For more information see Jump Starting a Secondary Market for Patents https://hallingblog.com/2009/11/16/jump-starting-a-secondary-market-for-patents/.
Accelerated Patent Court: A new court similar to the ITC that has expertise in patents and accelerates the patent litigation process is needed. The court should be sufficiently funded and have procedures that allow patent cases to be resolved in under a year. Perhaps the court would be limited to issuing injunctions as a remedy as opposed to economic damages. The goal of this new court is to establish the US as the premier arbiter of patent rights. The US is the best positioned country to protect patent rights, despite our recent history. This would increase the US’s standing as a technological leader in the world and draw innovative companies and people to the US.
Judges: Appoint judges with technical backgrounds and who have passed the patent bar to adjudicate patent cases. Judges without these qualifications make silly mistakes, such as stating that any invention that is just a combination of known elements is suspect whether it should obtain a patent. All inventions are combinations of known elements – it is called conservation of matter and energy. You cannot create something from nothing. (For more on the Supreme Court’s ignorance see https://hallingblog.com/2010/01/19/ksr-supreme-ignorance-by-supreme-court-2/ )
Patent Reciprocity: One of the largest costs of obtaining patent protection is foreign filing. Patent reciprocity would significantly reduce this cost.
If you drive your car across the border into Canada you do not lose title to your car. If you take your manuscript across the border into Canada you do not lose the copyright to your manuscript. But, if you take your invention across the border into Canada, you lose your patent protection and anyone can steal the invention – not the physical embodiment, but the underlying invention.
Patent reciprocity would automatically provide patent rights in a foreign country when you obtained a patent in the US and vice versa. This idea was first proposed by the US in the mid 1800s according to B. Zorina Kahn’s book “The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920“. Unfortunately, the idea died and since then patent rights have been part of the convoluted process of trade negotiations.
Patent reciprocity would significantly increase the value of patents and increase the value of research and development. As a result, it would spur investment in innovation. Reciprocity would increase the valuation of technology start-up companies in all countries that participated. It would also increase per capita income.
Eliminate Maintenance Fees: Maintenance fees are the major cost associated with a patents filed outside the US.
Maintenance fees are a backhanded way of introducing a “working requirement” to patents. Working requirements for patents have always been rejected in the US. These fees favor large entities and reduce the effective life of patents.
A strong patent system pays for itself several times over in increased tax revenues from increased economic activity. The supply side returns from a strong patent system probably exceed the return resulting from lowering the capital gains tax.
Reduce Formalism in Patents: A large part of the cost of obtaining and litigating a patent is overly formalistic requirements. The Non-obviousness requirement should be repealed. It is not logically a part of the definition of an invention and is the source of uncertainty, and increases the cost of both obtaining and enforcing/defending patent lawsuits. For more information see Non-Obviousness a Case of Judicial Activism https://hallingblog.com/2010/06/18/non-obviousness-a-case-study-in-judicial-activism/.
Some of the other overly formalistic requirements include the rules on restrictions, the inequitable defense, and the silly requirements related to section 101. Restrictions are required for trivial differences that are embodiments of the same inventive idea. The doctrine of equivalents has been dead for over a decade. Formalism over logic rules in the realm of inequitable conduct. USC 101 issues related to software inventions also place form over function that require absurd recitations to computer hardware. All of these formalistic requirements favor patent thieves at the expense of real innovators.
Here are three easy questions for Libertarians, Socialists, and Economists to determine if a right is a monopoly or a property right.
1) Does the right arise because the person created something?
Creation is the basis of all property rights. The law is just recognizing the reality that the person is the creator and without that person the creation would not exist. This is consistent with Locke’s Natural Rights and Ayn Rand’s Objectivism.
2) If someone else was the creator would they have received the right in the creation?
3) Is the right freely alienable?
Freely alienable means that right can be sold, transferred, divided, leased, etc. This is a key feature of property rights.
Let’s see how this applies to some common property rights, some monopolies, and rent seeking systems.
Land: 1-yes, 2-yes, 3-yes.
Some people may be confused about why question 1 is a yes with respect to land. Clearly no one created land. That is true, but the reason that the person owns the land is because they improved it. This was the major criteria for receiving land under the Homestead Act.
Now some people may complain that most of us do not obtain title to land because we improved it. This is true, but we had to create something and trade this for money. This money was then used to buy the land. Because property rights are freely alienable, they can be transferred for other property. As a result, creation is still the reason we own the land.
Thus a right in land is a property right.
Note in the modern world land is usually not completely alienable because of various regulations. However, this is an encroachment on property rights but does not change the underlying fact that rights in land are property rights.
Utility Grants: 1-yes, 2-no, 3-no
Utility grants includes electric utilities, water utilities, cable television, etc. In all cases, the company that receives the right has to build something (electrical power system, water purification and distribution system, or cable system. As a result, the answer to question one is yes. However, if someone else created a utility system in the same geographic area they would not receive the same right. Utilities receive their legal rights not because they created something, but because a political entity selected the particular organization. The grant is generally not alienable. If the present holder of the utility right wants to sell, lease or subdivide their utilities rights, they have to get permission from a political entity.
Thus utility grants are monopolies not property rights.
Patents: 1-yes, 2-yes, 3-yes
You obtain a patent because you created an invention. If someone else had created the invention, they would have received the patent to the invention. Patent rights can be sold, leased and subdivided.
Patents are property rights.
Note that you have to apply for a patent in order to obtain it. The same was true for land under the Homestead Act.
Mineral Rights: 1-yes, 2-yes, 3-yes
You obtain mineral rights because you discovered minerals at a particular location. Much like land in the modern world most mineral rights are purchased, but this is still the result of creation. If someone else had discovered the minerals they would have received the right. Mineral rights can be sold, leased, subdivided etc.
Mineral rights are property rights.
Professional licenses: 1-no, 2-yes, 3-no
Professional licenses include medical licenses, legal licenses, cosmetology licenses, etc. You obtain a profession license because you proved a mastery of certain knowledge and fulfilled other bureaucratic requirements. You do not obtain a professional license because you have created something. If someone else proved mastery of the subject matter and fulfilled the other bureaucratic requirements they could also receive a license. Professional licenses are not alienable at all – they cannot be transferred, sold, subdivided, etc.
Professional licenses are pseudo monopolies or rent seeking devices. They clearly do not limit the market to one provider, but they do limit the number of providers in a market.
Modern antitrust law turned the law against monopolies on it head. The Statute of Monopolies limited the power of the Crown (government) to interfere with private property rights. The Statute of Monopolies excluded patents for inventions because they result from the creative act of the inventor and therefore are property rights.
On the other hand modern antitrust law increases the power of government to interfere with private property rights. The underlying theory of antitrust law is the efficient market hypothesis. The hypothesis postulates that wealth is created by falling prices for existing goods and services and this is result of competition to sell existing goods and services. However, this is not true. Increases in per capita income are the result of increases in technology – inventions. Antitrust law undermines the incentive to create and invest in new technologies and therefore hurts our economic health.
This book has an extremely intriguing title. The book’s goal is to explain why the Industrial Revolution happened and how it happened. The book explains that there are over two hundred theories for why the Industrial Revolution occurred. The author points out that most of these theories miss the most obvious point, “which is that the Industrial Revolution was, first and foremost, a revolution in invention.” (Italics in the original) It further explains, “For a thousand centuries, the equation that represented humanity’s rate of invention could be plotted on an X-Y graph as a pretty straight line. . . . Then during a few decades of the eighteenth and nineteenth centuries, in an island nation with no special geographic resources” it changed. Ultimately, the Industrial Revolution was a perpetual innovation machine.
The author explains that England’s patent laws democratized invention and this combined with the advent of limited liability companies and the new capital markets resulted in an explosion of new inventions that created unimaginable wealth.
“The best explanation for the preeminence of English speakers in lifting humanity out of its ten-thousand-year-long Malthusian trap is that the Anglophone world democratized the nature of invention.
In England, a unique combination of law and circumstances gave artisans the incentive to invent. . . . Human character (or at least behavior) was changed, and changed forever, by seventeenth-century Britain’s insistence that ideas were a kind of property. This notion is as consequential as any idea in history.” (emphasis added)
The United States went on to create the first modern (non-archaic) patent system that was considerably more democratic (this is small d democrat) than England’s. This was a major reason why the U.S. became a world economic power in less than 100 years. Unfortunately, the U.S. is presently considering legislation, the America Invents Act (aka Patent Reform), that will again make inventing undemocratic and the province of the wealthy.
The book explains the history of patent law, the history of the science of steam (thermodynamics) as well as the history of the technology and economics of steam engines. The writing style is easy to read and very informative. Despite the bold initial statements in the book, it really focuses on the story of the Industrial Revolution instead of supporting its thesis.
Steve Forbes, publisher of Forbes Magazine, was a strong defender of the US patent system. He followed in the footsteps of one of his hero’s, Ronald Reagan, who made strengthening the US patent system a major part of his economic reform. For more information see Reagan’s 100th Birthday.
Now Forbes (the magazine) pushes an anti-intellectual, anti-free market, anti-patent point of view as evidenced in the opinion piece Google’s Conundrum: Buy The Patents Or Pay The Lawyers? The author belongs to that Luddite group that wants to categorize patents as monopolies. Patents are property rights. Property rights derive from the act of creation or more specifically invention in the case of patents. Monopolies are the result of political calculations and have nothing to do with creation.
The author then goes on to state:
When Prime Minister Tony Blair and President Clinton suggested imposing restrictions on patents in the field of genetics, publicly traded bio-tech firms experienced a predictable mini-crash. The impact of their recommendation would not have been as violent if the patents had shorter lives than twenty years.
Of course if the property rights in one’s invention was weaker before you suggested making it even weaker, it would have less impact on the value of the companies owning these assets. This is like saying the value of a company will decrease less when nationalization is proposed if the tax rate were higher. For instance, if the tax rate were 100% then it would not affect the value of company at all if politicians proposed nationalizing the company. The author Reuven Brenner, is an economics professor at McGill University according to Wikipedia. You would think that a professor would not make these obvious logical errors – the sort of errors that would make even an undergraduate paper on the topic receive a C or lower.
As if this gaff were not enough the professor then asks:
What would happen if the life of patents was shortened?
Prices of patented goods would decline and there would be less piracy
Yes and the price of all goods would decline if we would just get rid of property rights. Of course, no one would produce anything and the same is true of weakening patents. Innovation will come to a virtual standstill. History shows that without secure property rights in inventions, innovation grows so slow that humans are stuck in the Malthusian Trap. See The Source of Economic Growth.
As for there being less piracy that is like saying there would be less car theft if we did not give people title to their cars. This is not Alice in Wonderland Mr. Brenner. Words have meaning and even if there is not a law against piracy, it is still piracy.
Mr. Brenner continues with his Socialist line of reasoning by arguing, “Phillips’ initial success in Holland and throughout Western Europe was due to copying Edison’s lamps without paying any royalties to the Edison interests.” Stealing always enriches the thief, but it does not create wealth it redistributes it and destroys it. How many invention was Edison or some other inventor unable to fund because Phillips stole Edison’s inventions?
Mr. Brenner should be aware that since Robert Solow’s famous paper on economic growth it is clear that all per capita growth is due to increases in technology. Most new technologies are created by start-ups that require property rights in their inventions (patents) in order to secure capital. (See SBA Study). In addition, all net new jobs in the US are created by start-ups according to the Kauffman Foundation. If the US wants to create high quality, high paying jobs it needs strong property rights for inventions.
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