Editorial On Why The Patent System Should Be Abolished
from the in-the-mainstream-press,-no-less dept
We've certainly discussed the work of David Levine and Michele Boldrin plenty of times before -- and both were kind enough to participate in our CwF+RtB experiment earlier this year. If you haven't read their book, then you are missing out. Now, Levine and Boldrin have a new editorial up in the CSMonitor, explaining why they think the patent system should be abolished. If you've read their work, there's nothing surprising, but if you have not, it's a quick summary of the key points:As a matter of theory, intellectual property is a double-edged sword. On the one hand, giving a reward increases the incentive to innovate. On the other, allowing the monopolization of existing ideas taxes the creation of new ones, thereby decreasing the incentive to innovate. The bottom line: Contrary to widespread belief, economic theory does not provide support for the continuous extension of IP. The only answer to the question of whether IP serves the desired purpose must be empirical. Does it work in practice?No matter what your stance on this topic is, you have to admit it's impressive to see it getting attention in a mainstream publication like the CSMonitor.
A great deal of applied economic research has tried to answer this question. The short answer is that intellectual property does not increase innovation and creation. Extending IP rights may modestly boost the incentive for innovation, but this positive effect is wiped away by the negative effect of creating monopolies. There is simply no evidence that strengthening patent regimes increases innovation or economic productivity. In fact, some evidence shows that increased protection even decreases innovation. The main finding is that making it easier to get patents increases ... patenting!
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Filed Under: david levine, evidence, incentives, michele boldrin, patent system, patents
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It has already proven that the patent office is obviously full of retards that should never be allowed within five hundred miles of any innovation, so that isn't that far fetched (see: genetics patents).
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Aww!
It would be a collectible trading-card game where you draw 'attack patent', 'defense patent' and 'legal action' cards from your deck. It was so gonna rock; and now it'll become pointless as an ironic diatribe explaining the current patent situation?!!?
Well, heck.
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Re: Aww!
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Re: Aww!
Now you'll have to pay me for your thoughts...
muhahahhaha
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But Wait, This is a Two For One Offer!
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Re: But Wait, This is a Two For One Offer!
In a Wikipedia age, should all ideas be free?
In this rebuttal, Mr. Shughart makes the assertion that people should be compensated for their hard work. Nothing wrong with that, but what about the issue of two people independently developing the same idea?
Also Mr. Shughart makes the false claim that ideas are scarce and even makes the unjustified assertion that the: "1998 Sonny Bono Copyright Term Extension Act, the authors of books, Walt Disney characters, and computer software will not likely be deterred from being creative if their children or grandchildren are denied royalty payments." It's incredibility naive for an author discussing copyright to claim that the Sonny Bono Copyright Extension Act somehow denies royalty payments (sob, for the poor children, sniff) when it is actually a huge expansive "land grab" by the content industry.
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Re: Re: But Wait, This is a Two For One Offer!
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Re: Re: But Wait, This is a Two For One Offer!
Would you spend countless hours developing a novel business method if you knew you couldn't protect it with a patent? Most of us wouldn't.
That's his premise? And then there's this gem
It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.
So he acknowledges that perhaps the system is sometimes not necessary, but it'll kill people to try, literally. Astounding.
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Re: Re: Re: But Wait, This is a Two For One Offer!
For Business Innovation, in an age where everyone has the same ideas or better... businesses that don't invest in 'Novel' ideas are gonna die very quickly. Innovation should be part of the business process, not a savior for the status quo.
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OK punks
I will gladly sacrifice my only patent for this purpose
Can any of you sketch a legal employment non-compete agreement for a typical high-tech company in the absence of patents ?
I'd love to see it
Levine, Boldrin and Masnick are just demagogues
The reality is: Patent and Copyright system is the foundation of global business structure as it exists today (patent "trolls" aside - they are really just a tiny fraction not even worthy of discussion)
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Re: OK punks
Huh? Aside from also being a burden to innovation, what do non-competes have to do with patents?
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Re: OK punks
You know, this is against my better judgement, but I'm curious as to what point you're trying to make and would honestly like to hear a clear and understandable explanation....
"The reality is: Patent and Copyright system is the foundation of global business structure as it exists today"
Well, I'm going to try to keep this kind and reasonable, but two point need to be raised by that previous comment:
1. What evidence do you have for that statement? Our business processes are an evolution that has been occurring for centuries, so how can you lay the foundation of today's global business structure at the feet of something that has only been around for a fraction of the time that business on this planet has been conducted?
2. Is our global business structure today something we want to keep? For me, the answer is unequivically (sp?) "no". There's entirely too much reliance on international banking conglomerates, and until that's done away with, the system structure sucks. What I think would be instructive would be to see the breakdown on how the international banking institutions have supported one side or the other in the IP/Patent debate, either through direct involvement or money spent.
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Re: OK punks
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Re: OK punks
I assume that you are expecting the answer "no" to that question - to which my response would be "Good!"
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Re: OK punks
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Re: OK punks
I've signed plenty of them and drafted two. Noncompetes do not rely on patents in any way, shape or form.
Patents could be a helpful thing, but the US patent system is so far from reasonable that it harms innovation and business, not helps. No patent system at all would be vastly preferabel to the one we have now. Unless, of course, you are a large multinational corporation -- then patents are a huge help to you.
It's just too bad that an economy consisting of nothing but large multinationals is a tyrannical one.
The problem, you see, is that as it works now, it is almost impossible to avoid infringing on someone's overbroad or should-be-illegitimate patent. Even worse, it's impossible to even know when you are or are not infringing.
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Spade Calling
It's okay. You can say "Christian Science Monitor"
Despite the name, they are a widely-respected, award-winning journalistic enterprise.
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What's the Alternative?
In the case of level playing fields, I think we can do just fine without patents. Most big companies violate each others patents all the time but since their patent portfolios are balanced, they don't sue each other.
The area of concern is the David and Goliath scenario. How does the creative little guy ever come out on top if GE can simply watch for interesting developments and then implement them? No, I do NOT think the current patent system solves this problem because it's nearly impossible for the little guy to sue GE, but I think something is needed.
Would love to hear your collective thoughts.
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Re: What's the Alternative?
I see no reason why a year or two's length on patents wouldn't provide appropriate first to market advantage, incentive to create, while also limiting the ability of patent trolls to sit on patents. Also, a restructuring of the patent approval process and making the rules regarding what is patentable more strict also would need to be implemented. The current system is only useless because of how far it's been changed from the original system, which was, IMO, far better, but probably still a little too heavy handed.
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Re: Re: What's the Alternative?
If you have a limited patent system, it won't actually fix anything. there will just be less, not "better".
If we have to keep the patent system, then the entire patent office needs to be fired and replaced with non-idiots. they should get rid of the "patent pending" bs and make it to where if you have applied for a patent you can wait for the approval or you can go to market without the monopoly (er, "protection").
And software patents should just be revoked completely. is there anything else you can get a copyright and patent on? I can't think of one.
Of course, this will never happen. our government is too deeply inside pockets of big business to every see any reform in the patent system. sadly, the democrats aren't any less succestible to money flowing into coffers than the republicans.
It sucks, but that is the way it is. remember the revolution and all that was fought and died for.
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Re: Re: What's the Alternative?
1) How patents are more often used in reality, to sue independently developed systems of a competitor, than to make money for an inventor. Those that make money today still have to build a business around the idea, and the patent itself doesn't provide that.
2) Ideas are built on top of ideas, to an extreme degree. Granting a monopoly on an idea greatly inhibits not just others copying that idea, but building on it/making it better/using it as part of something else. Even a 1 year term is an extreme cost in an idea that's used in an idea within in an idea within an idea ... etc etc...
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Re: Re: What's the Alternative?
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Re: Re: Re: What's the Alternative?
If you are lucky and your examiner actually understands the subject and is willing to work with you
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Re: What's the Alternative?
what protection does patent afford the creative little guy?
GE/IBM/whomever has a huge hoard of vague patents that they can use to sue any competitor out of existence, either by accusing you of infringement or using their prior art to invalidate your patent.
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Re: Patents
The idea is intended to keep the large companies from stealing ideas from the little guy. The problem is that those large companies are abusing the system to stop competition and creativity. There are some laws that could be added to limit it.
1. A patent should have a requirement of being specific to the technology that is being developed. You shouldn't be allowed to patent "sending information over the air using encryption". But you should be able to patent a specific encryption algorithm that you developed or a new chip that allows faster encryption.
2. A patent should require a yearly re-certification that the specific technology is actively being developed or has been put into production by your company. If the technology does not meet that requirement, then the patent should be released for others to use.
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Re: Re: Patents
No, the idea is to promote progress. If you read the relevant section of the Constitution, there is no mention of big guys, little guys, or stealing. It's a bizarrely common misconception that the purpose of copyright and patent law is to protect people from having their works "stolen". It isn't.
1. A patent should have a requirement of being specific to the technology that is being developed. You shouldn't be allowed to patent "sending information over the air using encryption". But you should be able to patent a specific encryption algorithm that you developed or a new chip that allows faster encryption.
Isn't this already the law, and it just gets routinely ignored?
2. A patent should require a yearly re-certification that the specific technology is actively being developed or has been put into production by your company.
I like it. Maybe every 2 or 3 years though, renewing every year sounds like a lot of overhead for the amount of benefit to society.
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Introductions
Mike, you don't think this is a little bit of astroturfing for your own benefit? Come on!
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Re: Introductions
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What if...
For example, say I came up with a really cool Widget and patent it. I've now got (maybe) 3 years to be the exclusive manufacturer of Widgets. Or, if I don't want to be responsible for manufacturing, I can sell the patent holder rights (not the rights to use, but full ownership) to a business who can manufacture and market it better than me. They give me a great big payoff, and they own the patent rights for the next 3 years.
If I don't sell the rights, and someone comes along wanting to use my idea, I can either say "yes" or "no", but if I say "yes", I don't get to charge them for using my idea. This would completely negate the purpose of patent-squatting. This would be tracked by the USPTO (There would also have to be some sort of "no take-backs" law in place, or at least the right to include that in a contract. This way, after I've given Jim the right to use my invention, but then I sell my invention to Apple, Apple can't take back Jim's rights.)
Or maybe I decide my invention is something I'd rather give to the world now rather than 3 years from now, I can tell the USPTO that the patent is now public domain, and anyone can manufacture and market my idea. From that point on, no one can reclaim my idea or any derivatives.
If this system were in place, lawmakers would have to severely limit the amount of time patent-holders had exclusive rights to their products. Due to the obvious monopoly nature of this arrangement, I don't think they would have a problem doing so. Also, this system would encourage inventors to either do something with their patent, or donate to the public; there's be no good reason to sit on it doing nothing. And there would be no fear of industries simply waiting on the patents to become public domain, because the first company to come along and offer to buy the patent would get a three year head start on development, manufacturing and marketing.
What do you guys think?
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Re: What if...
Sorry, but fail. The payment / licensing system is one of the many features of the current patent and copyright systems that make the concept of "blocked for x years" a meaningless argument. Most inventors / patent holders want to see their work in action making them money, not sitting in a file drawer as a reminder of how smart they are.
What you may want to look at is a system of limited time to sue, say a few years max, otherwise it is considered to be licensed without charge. It is objectionable when patent holders come back 10 or 15 years after the fact and attempt to claim a bunch of money for an infringement they could have stopped much earlier.
I would also say that if a patent is sold or transferred, there should be a short period of time to sue any existing infringement, and then after that, anything that occurred before the sale date is considered licensed. This would take much of the wind out of the sails of the patent trolls.
It is very important to point out too: Patent trolls are a very, very, very, very small percentage of all patents issued. To toss out the system wholesale is certainly tossing the baby out with the bathwater, or burning down the house to kill a few fleas.
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Re: Re: What if...
Also, I said 3 years, not 17 years. This idea could only work with a short amount of time to do something with your idea.
I understand the idea of a statue of limitations on how long after the fact that you can sue, but that's dangerous water and I don't think you've really thought that one through. What if someone doesn't learn about patent infringement until years after it happens? Do they then have a limited amount of time from that discovery to sue? How do you prove when you learned of it?
Finally you caution against tossing out the whole system. I never suggested that as an option Perhaps at this point, you're now referring to the original article. Is so, that reply should have been separate from this one, so that you didn't come across as sounding so confused.
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Re: What if...
1. Maximum 3-year term (for tech patents). Maybe a little more or less for other industries, depending on typical go-to-market intervals.
2. No money changes hands for licensing. If you want to make money on your patent, you either have to sell it outright or develop it.
3. No lawyers involved. Patent infringement claims go back to the US Patent Office that granted the patent for resolution. This keeps it out of the courts while also helping the patent office learn from their mistakes if they granted patents that were too alike or too vague.
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In all candor, I have not embraced their work simply because in my view they seem to me to be individuals on a mission to promote the most extreme form of libertarianism, and in the process utilize data sets of dubious relevancy. Seriously, a patent on one aspect of a steam engine placed a virtual stanglehold on the market for steam engines, and once the patent expired the market flourished. This is such a simplistic view of technological progress I have to wonder if the authors have ever worked hand in hand with scientists and engineers to understand what it is that they actually do and how they go about doing it.
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Re:
I have asked you in the past to explain which data you believe is incorrect, and you have refused. Considering that there are a large number of studies cited by them -- and there are dozens of other studies that also support their position, I find it odd that you can toss them all out as being "of dubious relevancy." Especially when there are no real corresponding studies that suggest the opposite.
Seriously, a patent on one aspect of a steam engine placed a virtual stanglehold on the market for steam engines, and once the patent expired the market flourished. This is such a simplistic view of technological progress I have to wonder if the authors have ever worked hand in hand with scientists and engineers to understand what it is that they actually do and how they go about doing it.
You do realize that their statements on that were based on significant historical research and studies not done by Levine and Boldrin, but by others? And it found exactly what they did?
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Re: Re:
http://www.terry.uga.edu/~jlturner/WattAgainAug2009.pdf
Rarely are technology matters as simple as Messrs. Boldrin and Levine seem to believe.
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Re: Re: Re:
http://www.terry.uga.edu/~jlturner/WattAgainAug2009.pdf
I find it hilarious that you say you refuse to consider Levine and Boldrin's argument because their position is one of "individuals on a mission." And to prove it, you point not to actual evidence, but a paper by two people *on a mission* to discredit a single anecdote in a book.
You fail to refute the actual data supplied in the book -- as I asked you to do -- but instead present a paper that takes issue with interpretation of a single historical event. Yet, the book hardly relies on that single anecdote, but focuses on numerous studies.
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Re: Re: Re: Re:
Numerous other examples abound, but a blog is not the time or place to write a treatise. Perhaps Gene Quinn would be so inclined, but I am not.
Mind you, I do not say (and have never said) that they are weak on economic theory, but only that when the application of such theory is based upon a data set that is questionable it is difficult to embrace the work as an unbiased or authoritative study.
In the interest of fairness, I have on many ocassions leveled the same criticism at legal articles by members of academia, several of whom were none too happy. In each such case the authors had a relatively good mastery of the law, but it was clear that the same could not be said of the data upon which they were relying.
While perhaps you may have the impression I believe otherwise, I have never believed that our economic strength as a nation is dependent upon strong patent and copyright laws. I do believe, however, that those who make such claims are prone to overstatement, just like I believe that those who argue to the same degree from the opposite side of the aisle are likewise prone to overstatement. There is much fertile ground between these two extremes that have taught me the law can be quite beneficial is some circumstances and disastrous in others.
I do have to admit that a significant part of my practice has involved the development, production, and support of equipment under the auspices of US Government contracts. In my experience having dealt with the DOD, I have not the slightest doubt that the largest competitor of the private sector is the DOD itself, which almost unerringly attempts to steal business away from the original contractor so that it is able to keep government employees on its payroll at the expense of private sector employees. Someday if you are interested I can elaborate in greater detail. Suffice it to say I believe it is the private sector, and not the government, that should be profit centers.
I read your BIO quite some time ago and noted that some years ago you apparently worked within business development at Intel. Presumably your business cards reflected this role. Imagine if you will a US military officer having a business card identifying him/her as responsible for business development with international organizations and in direct competition with the private sector.
In this admittedly unique business environment I cannot overemphasize just how many times I had to turn to patent, copyright, trade secret and trademark law (among others) in order to derail the USG's "the private sector be damned" train.
For whatever assurances it may provide, not every lawyer who practices in this area operates in robotic fashion and proclaims, for example, "patent, patent, patent". This is the distinction between a journeyman and a businessman.
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Re:
I can tell by your lingo that your probably an industry insider / "earn" a living from our hopelessly broken system. It does serve some very well, mainly lawyers and mega corps.
I would like to point out that when you accuse a person of being an extremist you are engaging in.. oh.. whats that called again??
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Re:
"Imagine if the bicycle or combustion engine had been patented. We'd all be riding the same bikes and driving cars with the same combustion technology....Oh! but we do!"....
Me:
Probably the same reason why we're not all flying yet. They're too happy with the protection of a technology invented almost a century ago.
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OK, that's enough, little punks
(or more likely from a kindergarten or a nearest Xbox player's club or both)
God bless you, young dudes
Amen
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Re: OK, that's enough, little punks
i am sure as hell glad you were around in 1776. we would still be licking monarchists boots if you were in charge.
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The real reason
The Wright brothers are the best example I know of. See the wikipedia article for details.
http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war
Closer to home I note our friend Mr Riley admits to having devoted the last 20 years to legal tactics. If he is one tenth as good an inventor as he claims then this too is a tragedy.
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patents
---------------------------------------------------------
If an energy company sits down and says, "whats the projected growth for the solar panels market over the next 10 years?", lets say it's roughly 3000%. Then they decide to invest in research to determine more effective ways to manufacture solar panels. They USED to simply keep this a trade secret NOW they have twisted this PROCESS into an INVENTION and seek to patent the WAY that they manufacture solar panels.
The reason that we have a 5 year backlog at the USPTO, is that they let patents through that confuse the process of making solar panels with the panels themselves. This is how it's sold: "They spent a billion dollars creating a new way of making panels, that should be worth protecting as an invention". Many would say sure, they invented a new process! However this is logical slight of hand and it's easy to fall prey to. You see, when patents are used to block others from competing through using existing or emerging methods of manufacturing (or any other technology), they are essentially disrupting the evolution of industry. If this company patents a machine that it had built to streamline the process of manufacturing then others are free to innovate and invent their own solutions. This benefits the industry enormously. Why? Because we have just created an innovation arms race. If they close the doors on the concept of WHAT this machine does, rather than HOW it does it, all we have created is litigation.
Process patent litigation produces net loss. However very specific, very well thought out patents can be a win. If they stimulate the sector and are truly innovative. I've always thought of the patent systems intent as a controlled burn for innovation. Forcing innovation around a patent's implementation is really the gain that the system produces for innovation. Simply suggesting that our Solar company would not have invested in R&D is asinine. Free markets alone insure that companies will always invest in R&D when their pressured by market forces. Insinuating other wise (as patent extremists often do) is like saying: if we don't feed you, then you'll die. This ignores the reality of your very existence, to survive/thrive.
Grant fewer, very specific and most importantly more temporary monopolies (20 years is ridiculous in today's markets) and watch one-upmanship take hold. I'd rather see no patents at all than continue on the road that were on now though...
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Re: patents
Practically the same, except with a comment stating I want people to copy. To bad I only have minor things to release. =)
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Re: Re: patents
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Errors in Editorial
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Re: Errors in Editorial
Patent, copyright and 'IP' ARE a monopoly.
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Re: Errors in Editorial
Patent, copyright and 'IP' ARE a monopoly.
Sorry for not explaining why.
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Re: Errors in Editorial
How so? You claim, in your post, that the "promote the progress" part of the constitution is meaningless. You can't be serious. If you are, you have no credibility. You are honestly suggesting that you don't care if patents make progress worse, they should still be allowed? No sane person could make such an argument.
They mischaracterize patents and IP as a monopoly.
No, that is 100% accurate. They are a monopoly, and have always been. In fact, they were originally called monopolies. It is dishonest to claim they are not. Your claim that because they only provide a right to exclude it is not a monopoly is laughable. Even in the definition you state, it's clear that patents are exactly a monopoly. Because they are a right to exclude, they give you the right to be the "sole provider."
Their comments on the incentives provided by patents is historically inaccurate
Again, they discuss numerous studies on those incentives. Are you saying that every study they cite is inaccurate? In your blog post you make a correlative statement, but you must know that correlation is not causation.
And, if you look at the *actual* research, not your statement of incorrect fact, you realize that even your correlation claim is flat out incorrect.
Your credibility is at about zero right now.
They whine about the cost of the drugs for AIDS, while ignoring the development costs and the fact that without the inventors there would be no AIDS drugs
You do realized that the main source of AIDS drugs was gov't funded research, right? What does that have to do with patents? Or are you suggesting David Ho only did his research because of the patents he could get? Yikes.
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Patenting discussion "bait and switch"
I also cannot believe they would be so narrow in their intellectual scope that they would broaden their bias to include ANY patenting system!
As envisioned by the founding fathers, patenting would accomplish very good things; and has, in the past.
As presently practiced, where the wealthy buy legislators and ram through self-interest legislation, it is horrible!
WE NEED CAMPAIGN FINANCE REFORM!!!!!!!
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