distant-uncle's comments

It seems to me that when you say that people have a natural right to profit, you actually mean a "right to exclude".

I think that's a whole nuther kettle of fish.

For one, the two are in contradiction. Suppose you believe that you have the right to exclude, presumably you also believe that all other humans have the same right, owing to its status as a natural right. By believing that you can exclude, and therefore profit by way of eliminating competition, you acknowledge that the competition can exclude you as well.

It boils down to whether or not by "profit", one implies complete domination of a resource. I tend to think that many parties can profit, without the necessity to exclude by brute force.

This is also the key difference between patents and copyrights. The former demands total domination of a resource, while the latter does not.

> And I would answer, why should the tree be yours just because you got to it first?

It's a good point, but there is a difference. It is possible for two parties to arrive at the same intellectual destination without being aware of one another. The same cannot be said for two parties arriving at the same tree, at the same time, but one not being aware of the existence of the other.

I suppose you can construct an argument in which both parties lack all physical sense of awareness. :)

> Trespass is about land

Well, to borrow a phrase, it really isn't. Or more precisely, land is one subject area. Take a few moments to research if you're curious, but do go beyond a law dictionary.

> that I was defending patents. I am not.

It seems we agree... then?

> I'm objecting to your criticism

Ok, fair objection. I also noticed your objection was less than friendly, so perhaps your predisposition to the abuse of certain words is so strong, that you will recognize that indeed, using the word theft when one intends to convey the concept of infringement, is invalid.

This is precise legal language and meaning.

As to changes to the patent laws, I can only hope. I do also hope, that as you say, it is obvious. The more blindingly obvious this becomes to people, the better. So hopefully, we can close on the positive note of both hoping for the same thing?

Infringement is not theft, it is an entirely separate legal concept.

Dowling v. United States

http://www.techdirt.com/articles/20100913/22513210998.shtml

The above deals specifically with copyright, but the concept is the same.

Secondly, in the post you replied to, I'm not talking about "intellectual property", I'm talking specifically about patents. I think that the copyright laws for instance, are far more balanced, and fair... lengthy time scales notwithstanding.

> It does not require physical trespass: taking someone's wallet

> when they put it down on a table for a moment is theft.

Indeed, it is also trespass on someone's physical property. This is obvious, and brings into question your own understanding.

Back to patents.

Suppose I discover, and implement a product, doing so entirely independently. I'm then summarily denied the right to practice it via a patent shakedown. Am I still in possession of it? Is one still in possession of one's freedom, if all one has remaining is a tiny cell to walk around in?

Let's now break it down in your terms. If Alice infringes on Bob's patent, both have possession, but only Bob, under the law has ownership. However, in the case of patents, Alice can come into possession of "Bob's property" without even knowing of Bob's existence, much less of the existence of "Bob's property".

This is not theft.

Now let's turn it around. Assuming Alice came into possession of "Bob's property" without being aware of Bob, or "his property", i.e., Alice discovered and implemented it entirely independently.

It is now Bob, who can deprive Alice of her own property, in effect taking the ownership of it, as well as having it in his possession.

If this is not theft, then I do not know what is.

One more time... in the event of infringement, Bob can still practice his art and make use of his property. Alice then merely engages in competition with Bob.

In the event of patent enforcement action via the iron hand of the government, Alice can neither exercise, nor even posses "Bob's property".

I've been mulling over the most common argument predictably wheeled out by the patent aggressors and their supporters:

"Theft! We don't want them to steal our stuff!!"

Never mind that even if one allows that the whole concept of patents is a legitimate, and an ethical legal framework, patent infringement is never theft.

Theft would involve actual trespass of someone's physical property, that involves removing and/or otherwise exploiting said property without the owner's permission -- in effect depriving them of it.

So for an obvious example, if Corp A. breaks into Corp B's engineering offices, and literally steals their code and/or design documents.

That would be theft.

Of course, computer break in is not technically a physical trespass, but the distinction still stands: an actual trespass must occur.

We already have time-tested criminal laws for this, and justly so. Patents are completely redundant for this case.

But if you think about, there is actual, honest to goodness theft that goes on in patent cases... and the thief, it's the aggressor! Albeit for a "limited time" (that's of course subject to interpretation, in 20 years many things happen, to someone who dies, that limitation is permanent), someone is given the government-sanctioned go-ahead to literally deprive another of their own discoveries and hard work.

Independently discovered, independently arrived at and hammered out.

No matter.

> Using standards-essential patents as legal weapons is completely unethical.

I would argue, it's more like: "using patents as weapons is completely unethical."

And yes, it's a shame to see any patent aggressor get away with it. There is no fundamental difference between FRAND and any other patent. In all cases, independent invention is prohibited, denying inventors their natural right to gather the fruits of their labor.

Secondly, the "can't work around argument" is equally applicable to any patent discussion: unlike copyright, patent regime does not recognize the merger doctrine, placing some foundational methods at risk of being completely locked up by greedy entities.

Third, patent aggressors benefit tremendously from the work of third parties on whose shoulders they stand; patent aggression is an ugly contrast to this.

It's only an offensive move if you consider battle 'N + 1 == N'. Google didn't start this war.

Very true. Or even just: "A combination of chemicals".

What I also find remarkable is how much actual research in biotech is done with public money. And how much big pharma spends on marketing, as opposed to actual research.

http://www.huffingtonpost.com/2012/08/09/pharmaceutical-comp...

I think India's take on pharma products is enlightening. The pharma industry has managed to effect some self-serving changes in India's patent laws. However, as we speak the Supreme Court of India is hearing a case of particular interest.

http://theconversation.edu.au/david-and-goliath-novartis-cha...

> when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.

I wouldn't. For many of the "I shall take advantage of this system" person/company out there, there are thankfully examples to the contrary. Redhat. Google. Sun Microsystems (RIP).

I'm convinced that the reason this issue is being aired more often now, is because the greedy kind (the trolls and unscrupulous management of product/service companies) have overplayed their hand. They have gone a bit too far with all this aggression, and I for one am very glad to see people respond in kind.

In a system without patents, collusion would be checked by increased competition. As it is, FRAND patents are irrelevant, because as it has been already shown, some companies fail to disclose, others refuse to play... and are not required to boot.

But even if all companies played by the FRAND rules, there would still be fundamental unfairness in the system, not unlike one that FRAND proponents point out. That unfairness lies in the fact that FRAND or not, unscrupulous incumbents will relentlessly seek any 'redress' against newcomers. In other words, they will hammer you with any patent they think they have a good chance of flattening you with. This goes a long way to furthering their ability to form cartels, especially among the big incumbents with thousands of patents.

As an aside, I also find the cognitive dissonance exhibited in these debates quite entertaining. On the one hand we have the contingent that proclaims that "GREED is good!", a la Mr. Gekko. Nice. If they can prevent you from practicing your very own idea, they would. But then, the very same contingent all of a sudden grows a moral backbone when they resort to the arguments: "But you stole my ideaz?!?".

I reject any notion that FRAND regime is special. If you're not invited to be a party to a standard, then create your own. The 'can't work around' argument doesn't hold water.

The same exact, 'can't work around' argument is often very applicable to any patent discussion. At least in the case of copyrights, we have the merger doctrine. In the case of patents, if someone managed to lock up fundamental methods, good luck. In fact, the system is so screwed that it's possible for someone to lock up methods that they didn't even discover.

Herein lies another problem however: creating your own standard would not absolve you of any territorial squabbles. In fact, in that case, and now being outside the umbrella of FRAND, unscrupulous incumbents will try to make this quite impossible for you, with the patents supporters, and particularly the FRAND crowd uttering nary a whisper.

If anything makes the case for the complete abolition of the patent system, then the so called FRAND patents are it. It's interesting to see how the notion is completely lost on some supporters of the FRAND patent regime. Their argument is fundamentally the same as the people who reject the notion of patents to begin with. It typically boils down to "Unfair!". Just much embellished with useless appeals to emotion that differ not a whit from the arguments made against the patent system in general. For example: "But how would my <pet company> be allowed to participate in the market if someone OWNS this territory!?!one1eleven?". And: "This is not good for the consumer!".

Except of course when exactly the same argument is made against the patent system in general. A lovely little retort to that has become a favorite refuge of the patent supporters: "You just want to - " -- wait for it -- "STEAL!". Apparently, elementary logic is unavailable to the so called inventors. Because, believe it or not, an argument has even been made that you're not an inventor, unless you support the patent system. Even more, an argument has been made that you're dirty thief... unless you support the patent system.

The patent system has outlived its usefulness. Nay, it hasn't been useful since day one. It arrived stillborn, and its zombie has been haunting the inventors world over ever since it's been exhumed.

An impassioned appeal you say? A thousand times yes. The patent system is an unethical social construct that has been perpetrated upon and abused... against countless honest, fair folks who want nothing more than to practice the fruits of their labor. Many, many times their labor is a function of an independent discovery. This is often challenged by patent supporters as impossible. Their argument boils down to: "You can't invent FFT! Only the patent supporters can!"

Last of course, but far from least is the fundamental hypocrisy of this all: if you were to enumerate everything the patent supporters use to practice their art, you will invariably find their contribution insignificant, nay, not even visible when placed against the foundational background. They readily accept locking out entire swaths of science and technology for themselves, without ever acknowledging the monumental contribution of people... mathematicians, scientists... GIANTS!

Those giants, in their generosity and brilliance have made our world better. The patent system, I would argue, has made our world worse.

Lol that would be highly unethical. More seriously though, names are not people. Corporations are people, my friend. Oh and lastly, I do tend to think that on the basis of defamation alone, a reasonable argument for trademarks could be made. Nothing even remotely close to this argument exists for patents.

At least in the case of trademarks, the potential for defamation gives it some credibility. I suppose from the standpoint of brand confusion alone, trademarks and patents are both equally unethical in that they both do not recognize independent discovery. Copyright is a much more balanced approach imo. Frankly I don't think many in many industries have the balls to admit just how much they would dislike their natural rights trampled on. In my experience, any time the conversation heads in that direction, the affected parties are seen scurrying away. For instance, I reckon a lawyer would reject any notion of limiting their natural right to practice law? Or perhaps even just certain techniques thereof. Really, I think it's time we start carving up territory in the domain of legal tools and tactics. Heck, I say we start carving up territory in just about anything one can think of. At least then the ridiculousness of it all might become apparent to enough weighty makers, that they would see to it that it'd be changed.