Everyone's Got A Pet Project: Patent Maximalist Says We Need Longer Patents To Incentivize Coronavirus Vaccines

from the oh-shut-the-fuck-up dept

Adam Mossoff is one of the most vocal IP maximalist law professors around. He's never seemed to have met a form of artificial monopoly that he didn't want to expand. His latest is that he's claiming, laughably, that we should be extending patent terms in order to incentivize the creation of coronavirus vaccines. His argument is based on a misleading complaint that has been raised by plenty of pharmaceutical companies: they need to file their patent applications at the point of discovery, but they can't market a drug until it receives FDA approval, and that can take years, which cuts into the years over which they hold a monopoly and can extract insane monopoly rents.

Mossoff says that now is the time to revisit that and to roll back the law that made it so the clock started so early, and to enable patent extensions to incentivize drug makers to create a coronavirus vaccine.

Congress can easily fix this mistake in innovation policy. It can enact legislation that reverses the changes made in 1993 and increases the patent term extensions. Instead of attacking patents, Congress should pass legislation providing more protections. It is an easy fix that will save countless more lives from cancer, diabetes, and viruses like the coronavirus.

This is utter nonsense on so many different levels. It assumes -- incorrectly, though a core to all of Mossoff's thinking -- that the ridiculous monopoly profits are the only thing that incentivize creation. Given that tons of companies are already researching coronavirus cures, knowing full well that the reason to do so is to save millions of lives and that governments will easily pay handsomely for such a vaccine, it's difficult to say with a straight face that these companies need more monopoly rents to work on these kinds of solutions.

Even more to the point, there's an obvious fundamental flaw in Mossoff's reasoning. A patent only goes to those who get there first. Every one else trying to create the same drug still has the same capital expenditure upfront to try to develop the drugs or technologies -- but can get blocked by whoever gets to the PTO first. If we take Mossoff's simplistic model that only if a company is guaranteed monopoly rents will they invest in the first place, his own model breaks down, because so many players will invest heavily and get nothing in return, because they were a day or week late.

It seems that a much better model is the way most of the economy works: if you build a good product people and companies and governments pay you for the product, and you don't need the government to step in and say no one can compete with you for two decades (or more, if Mossoff got his way).

Especially at a time when we see patent-related price gauging around COVID-19, all the evidence suggests we should be moving in the other direction -- opening up the ability for more companies to innovate and compete in a free market. Indeed, if Mossoff actually wanted real incentives that also compensates drug developers, you'd think he'd be much more supportive of the innovation prize approach, that basically gives a ton of cash over to those who develop breakthrough drugs in a prize format, but then still allow the drugs to be offered to those who need them at a reasonable price. Then you actually have people who can afford the drugs to stay healthy, rather than just acting as a siphon to drain people's bank accounts to pay off pharma companies who bought most of the research off of smaller labs who did the actual work with government funding in the first place.

Filed Under: adam mossoff, coronavirus, economics, incentives, patent terms, patents, vaccines

Patent Trolls Ramp Up Lobbying Efforts

from the good-luck-with-that dept

As it looks like the government might actually move towards real legislation to at least try to tackle the patent troll problem, the patent trolls are realizing that they need to ramp up their lobbying efforts with Congress. The article is kind of funny in a variety of ways, arguing that the patent maximalists haven't had the ear of Congress forever:

The attack on so-called trolls has obscured the complexity of patent-rights issues, said Adam Mossoff, a law professor at George Mason University School of Law. That’s in part because “patent companies weren’t active in lobbying or PR,” Mossoff said. “They let patent skeptics in the academy and in think tanks and firms that oppose them set the terms of the patent policy debate.”

No offense, but that sounds like someone who just joined the discussion here. From 2004 until 2011, there was a long, intense debate about patent reform, with early proposals having some aspects that might have curtailed at least some of the trolling problem. But they all got squeezed out because massive patent holders absolutely were extremely active in lobbying and PR. Yes, in many cases it came from the pharmaceutical side of the fence, as the pharma industry effectively killed patent bills every Congressional session, but the idea that patent maximalists haven't had their say is simply untrue.

Then there's this, from Intellectual Venture's new boss lobbyist, Russ Merbeth:

The current debate about patent trolls “seems to create uncertainty around patents generally,” said Russ Merbeth, chief policy counsel at Intellectual Ventures. “From our perspective, that’s going to have a long-term negative impact on American competitiveness.”

That's an up-is-down, day-is-night kind of statement. The uncertainty around patents has always been whether or not (and when) actual innovators were going to get sued for doing something obvious by patent trolls and hoarders like Intellectual Ventures. That's the uncertainty. The fact that innovative companies had to hire more lawyers than engineers? That creates uncertainty and has a long-term negative impact on American competitiveness. It's the companies that are actually innovating that are getting sued. Meanwhile, companies like Intellectual Ventures, who have never brought a product to market ever, sit back and collect billions of dollars from the actual innovators? That's a recipe for disaster. You're taking money out of the hands of innovators -- those who expand and grow the economy, improve our competitiveness and generally improve our lives -- and giving it to a bunch of lawyers who aren't doing that at all?

Last month, IV’s Myhrvold, the former chief technology officer of Microsoft, made a visit to the Hill to argue that his firm, with its thousands of patents, plays an important role in the tech industry ecoysystem by providing a secondary market for patents. The system is generally working, he said, and the industry should hold off on new changes and let the America Invents Act — the patent reform legislation passed in 2011 — take full effect.

“Fundamentally, the term patent troll gets thrown at anybody that is a plaintiff in a patent case,” he said during an event in D.C. “If you are in favor of invention, I think you have to be in favor of invention rights.”

By the way, remember the Mossoff quote above about how the patent folks weren't active -- does he know why the America Invents Act finally passed in 2011? Because it finally got watered down enough that Intellectual Ventures stopped its shady practices to block the bill. Intellectual Ventures was heavily involved in the patent reform debate last time around, contrary to Mossoff's historical revisionism.

As for Myhrvold's claims here, note his careful word choice. He talks about "invention" -- not innovation. The two are different, but the fact is that Myhrvold isn't even talking about invention. He's talking about patenting, which is the process of getting a monopoly on whatever you can get a monopoly on -- whether or not you've actually invented anything at all. Furthermore, even if you believe in invention, that has nothing to do with supporting patent reform that stops patent trolls like Intellectual Ventures. Patent trolls harm inventors, because they give a patent to whoever got their application through the patent office -- and that harms every other inventor who might be building something much better, and much more valuable to society, by putting a giant tollbooth in its way.

It's much, much better (and empirically more effective for the economy) to reward invention by letting inventors compete in the market. Let the market decide who builds the better product, and go from there.

Filed Under: adam mossoff, lobbying, nathan myhrvold, patent trolls, russ merbeth
Companies: intellectual ventures

Anyone Who Says Copyright Cannot Be Used For Censorship Has No Credibility

from the sorry-adam dept

Adam Mossoff is a law professor at George Mason University. I've come across some of his previous writings in the past, and have been repeatedly impressed at just how disconnected from reality they tend to be. However, his latest piece, for the Austin American-Statesman takes the cake, entitled simply: Copyright doesn't limit online speech. Of course, this is empirically false. Anyone who is even remotely intellectually honest admits that copyright can (and has) been used to limit speech. Just ask the operators of a hip hop blog who had the site seized for over a year based on nothing other than an unsubstantiated claim by the RIAA.

Or, how about the Russian activists who were shut down after the Russian government used copyright claims to seize their computers?

So how does Mossoff get around that? Simple. If you can't argue the facts, just make up a scenario that works in your favor. He sets up a perfect strawman, insisting that those who argued against SOPA and PIPA claimed that all copyright violates the First Amendment:

The argument that copyright violates the constitutional right to free speech seems to have particular force on the Internet, because, in the words of one federal court decision, "The Internet is a communications medium." Copyright owners seem to squelch this communication: They compel websites to take down infringing videos, music and writings. The music industry successfully sued widely used peer-to-peer services such as Napster and Grokster, and it continues to use automated programs called bots to track what music people download and from what websites. SOPA expanded copyright owners' legal rights to block websites containing infringing content, in effect relegating these websites to digital purgatory. As a law professor stated at a conference over the summer: "Copyright is the engine of censorship."

But Mossoff then claims this is crazy talk, because he has bought into the view that copyright is not the monopoly privilege that it is but that it's "property." Of course, that's hogwash. The purpose of "property" is to best allocate scarce resources. "Property" does not make sense either intellectually or economically for things that are not scarce, such as content. Copyright is not a property right, no matter how many times maximalists incorrectly insist it is. However, even if we accept Mossoff's incorrect assertion, he then layers on the ridiculous by claiming that copyright has no impact on speech other than that which is covered by copyright:

Thus, copyright law secures the fruits of creative labors, but only those specific fruits — the value in the specific text, picture or song created by the artist.

The right to free speech is the right to express one's thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works.

Okay. So what about all the original content created on the blogs that the government took down using copyright law? Or the speech of those Russian activists? This is where Mossoff appears to have a total blindspot, common to someone in academia with no experience in the real world. Copyright is not used just to protect the rights granted under the Copyright Act. It is used regularly to shut down other expression.

Copyright claims took down the official DNC livestream. Bogus copyright claims took down the official Hugo Awards live stream. Bogus copyright claims took down a negative review of a Universal Music album. Questionable copyright claims took down parody commentary by Dan Bull, expressing his opinion on another copyright lawsuit (while the copyright holder left up tons of other versions of the song). Copyright claims were used to suppress an unflattering photo that some rich dude didn't like. A bogus copyright claim was used to take down a totally unrelated news article, after Fox thought it was about a movie which it wasn't.

And that's all just from the past few months. Anyone who insists that copyright has nothing to do with censorship because it only protects the rights established under the Copyright Act seems to have no credibility on the subject.

Mossoff then further expands his thesis by claiming that copyright doesn't violate the First Amendment... because there are some limits on the First Amendment. Of course, that argument makes no sense either. Yes, there are some limits on the First Amendment. That doesn't mean that any restriction on speech is okay under the First Amendment. This is basic logical fallacy territory. Just because there are some exceptions, doesn't mean that all exceptions make sense or are legal -- but Mossoff honestly seems to be making that argument.

If you actually want intelligent and nuanced views on the conflict of the First Amendment and copyright law, rather than the ridiculous claims from Mossoff, I recommend Neil Netanel's Copyright's Paradox or David Lange and Jefferson Powell's No Law. Both books involve careful and detailed analyses of how and where copyright law and the First Amendment come into conflict.

Mossoff just brushes all that off, saying that since both copyright and the First Amendment are in the Constitution, there's no conflict:

In fact, both copyright and the right to free speech are based in the Constitution — in the copyright and patent clause in Article I, Section 8, and in the First Amendment.

Strangely, people are now claiming that one part of the Constitution is an unconstitutional violation of another part of the Constitution.

Of course, that's neither accurate nor "strange." First off, free speech is a right in the Constitution. Copyright is not. It troubles me that a "law professor" would make such an obviously false claim. The Constitution's Article I, Section 8 only grants Congress the right to create a copyright law -- explicitly for the purpose of "promoting the progress of science" (the "useful arts" stuff was about patents). To suggest that the Constitution establishes copyright as a right is simply false.

Second, there is nothing "strange" at all about the concerns people have raised about copyright law. Even if we assume that Mossoff's initial suggestion that both come from the Constitution is accurate, what he ignores is just how massively copyright law has changed since it was first created. In 1976, the US completely overhauled its copyright system, making it so pretty much anything new put in a "fixed" form was automatically granted copyright for life plus 50 years (later expanded to 70 years, thanks to Disney and Sonny Bono). To pretend that copyright law we have today couldn't possibly conflict with the First Amendment because we also had copyright law in 1790 is ignoring that copyright law today looks nothing like copyright law in 1790.

Mossoff, ridiculously, acts as if they're basically the same thing.

It really makes you wonder how anyone can take these claims seriously when they're so uninformed. Mossoff is apparently appearing this week at UT Austin for a discussion on free speech and intellectual property. Thankfully, one of the other people appearing at the same event is Neil Netanel, the author of Copyright's Paradox, mentioned above. Mossoff would do well to actually pay attention to what Netanel has to say.

Let's make this simple: is copyright automatically censorship? No. But can it be used for censorship? Absolutely. I don't see how anyone who is even remotely intellectually honest can deny that. Copyright maximalists are free to suggest that the censorship "costs" are minimal or can be minimized. Or they can argue that this is collateral damage that is "worth it" for the supposed benefits provided by copyright law. But to argue that copyright law is entirely unrelated to free speech violations is simply not a supportable position. Yet it's the one Mossoff makes. And for that reason, he has no credibility on the subject.

Filed Under: adam mossoff, censorship, copyright, pipa, property, sopa