Theodp can be properly accused of the very distortions he attacks the author of the BW article over…

The first paragraph is theodp’s, as noted by the italics and quotes. The second paragraph is mine, so just to be clear, if you’re calling someone biased, it would be me, not Theodp.

Well, there’s a nice ad hominum attack to start off your non-biased commentary. Just because he’s an expert on the patent system, he must be disregarded! Is that your Orwellian doublespeak message? Or is that all attorneys must be out to tilt public opinion only for their personal gain? Either way, youve betrayed your own biases, before presenting any of your own “facts,” such as they are.

Being a patent attorney does not make one an “expert” on the patent system. It makes one an expert on making money from the patent system. Two different things. And it is a bias. His income is made based on the ability to get more patents issued. That’s a pretty clear bias.

My bias, on the other hand, is pretty clear. I am focused on what’s best for promoting innovation — and I don’t make or lose any money from the patent system. I just think the issue is quite important.

However, I don’t see what’s untruthful about stating that he’s a patent attorney (he is) and therefore likely to view patents through a particular lens.

The good news here is, I couldnt agree more, and I bet most patent attorneys would agree with us too. That’s because PATENTS DO NOT GIVE A COMPLETE MONOPOLY TO THE PATENTHOLDER!!!!

This is, of course, incorrect. That right to exclude is a monopoly right. In fact, if you go back to the conversations that Jefferson and Madison had about patents, they specifically refer to them as monopoly rights. The fact that there is a limited time period is true, but during that time period, they have received a complete monopoly.

So, lets say someone comes up with a replacement for Fourier transforms that makes speech reognition technology much faster and accurate. Your argument is only give him a copyright, so he only gets to protect the code he submits to the copyright office. Whereas, the patent would protect against all uses of the idea, no matter what form the inventor himself chooses to implement it in. Not only that, but youre saying its better to give him the life of the author +70 years for very limited protection, than 17-20 years for more comprehensive protection. To what end?

Actually, if you’ve read my writings, you’d know that I favor NO protections whatsoever. Neither copyright nor patents. However, in this case I was merely pointing out that the statement that software and hardware is identical under IP laws is incorrect.

My actual argument is that, just like any other product, whoever comes up with such things should compete in the marketplace, building a business model around his idea.

Your argument leaves the impression thats its easy to get a patent on a very basic idea. I assure you, it is anything but (so long as your not in Australia, whose patent office recently allowed an application for the wheel …literally). As evidence, the allowance rate for applications at the US Patent Office this year is just over 50%.

There are any number of equally silly US patents. Swinging on a swing? Crustless PB&J? Making email wireless? Playing with a cat with a laser pointer? Tax preparations?

I’m not sure your frame of reference, but 50% seems crazy high to me. Remember, we are creating a MONOPOLY (despite your denial of it), and monopolies should only be given out in the rarest of circumstances. Right now, that’s not the case at all.

Name some such evidence, then.

Hmm… where to start. The research of Jaffe & Lerner is a good place. Samson Vermont’s writings might help as well. What’s even more useful is that if you look at all the various patent thickets around some very core ideas (voip, mp3s, wireless email, streaming content) and you quickly realize that basically a ton of companies patented nearly identical methods of doing the same basic thing — which were obvious progressions. Unfortunately, for the longest time, thanks to CAFC, the USPTO and the courts didn’t have a REAL test for obviousness, using prior art as pretty much the only obviousness test — when obviousness and novelty are two separate things.

The fact that courts are suddenly rejecting patents under the *new* obviousness standard is further evidence of how the old patent system encouraged obvious patents.

All in all, you must assume patents to be an entirely bad thing.

Yes. The evidence there is pretty compelling. On that front, you might want to look at the research of David Levine and Michele Boldrin. Our recent Nobel prize winning economist Eric Maskin has been doing extensive research on why many patents (specifically software patents) are bad for innovation. On top of that, check out the research of Eric Schiff, Petra Moser and many others. The list goes on and on…

But it flies in the face of patents being integral to the growth of industrial nations with a history of over 400 years

Actually, you really should look at the research on this, because you’re confusing correlation with causation. The actual research tends to show that patents come *after* growth spurts in innovation, as the companies who did the initial innovation (without IP protection) then want to rest on their laurels and have their innovations protected. In fact, the research shows no corresponding increase in innovation following patent systems being put in place. The Levine/Boldrin book has plenty of supporting evidence on that.

Did not Edison deserve a patent for the light bulb?

Many people would argue no, not at all. Edison’s success wasn’t in coming up with something new (in fact, talk to some supporters of Tesla to get their take on Edison), but in being able to market it better than others. That has nothing to do with patents. So, no, I don’t think he deserved a patent. He had the right to compete in the marketplace, just like anyone else in a capitalist society. Why we chose to give him a monopoly is beyond me.

Without the shield of patents, there is no incentive to sink R&D money and effort in to new ideas, when copyists can turn around and effortlessly put out their rip-offs the day after you launch a product. That is the true economics of how innovation actually works!

Actually, this is a complete and total myth. Again, I’d suggest you look at the research of Eric Schiff and Petra Moser, both of whom have showed that without patents, innovation does not slow down (and in many cases is greater).

That’s because innovation is an ongoing process of trying out different ideas, combining different things and mixing it with marketing efforts to bring something successfully to market — and then continually iterating on it. In such a situation, you want ideas to be able to flow freely so that people can continually change and improve as competition flows. That’s what drives innovation.

Thus, patents could make sense in cases where there is a single new idea which is the pinnacle of thinking in the space and no further innovation is possible. However, I’m having a lot of difficulty finding an example where that’s the case. Instead, back here in the real world, where innovation is an ongoing process, the incentive shouldn’t be monopoly rights, but what the market will bear. Just the way capitalist economic theory works.

As for the claim that “copyists can turn around and effortlessly put out rip-offs the day after you launch a product,” you again appear to be living in a different world. First of all, it’s not so easy to so quickly copy most products. But, more importantly, copying just the product isn’t the biggest part. You need to effectively be able to bring it to market in a way people want — and that’s not so easy. For example, many studies show that Yahoo and Microsoft provide better search results than Google. The product itself is better. But people still use Google, because Google has done a better job bringing their product to market in a way people want. Similarly, there are tons of digital music players on the market that reviewers note are better and cheaper than iPods… but Apple still dominates the market thanks to Apple brand.

In other words, copying isn’t everything. Google and Apple have learned to compete in the marketplace, and there’s no reason why other companies can’t do that too… and it certainly doesn’t require patents.