Letter to an Anonymous Patent Attorney

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Kinsella: Letter to Anonymous Patent Attorney,
Jan. 9, 2002 PATNEWS
Kinsella: Response to Patent Practitioners
Further Reading
Appendices
Replies to Kinsella, Jan. 16, 2002 PATNEWS
Replies to Greg Aharonian’s Comments on Lessig,
Jan. 7, 2002 PATNEWS
Letter from Anonymous Patent Attorney, Jan. 7,
2002 PATNEWS
Lessig’s Reply to Aharonian, Jan. 7, 2002
PATNEWS
Greg Aharonian Comments on Lessig, Dec. 16,
2001 PATNEWS

Greg Aharonian
is the Matt Drudge of the patent world, and his Internet Patent News Service newsletter
— better known as PATNEWS — is lively and interesting. While Aharonian
loudly decries the quality of software patents and the patent bar’s
apathy and unwillingness to agitate for improvements, he adopts
a mainstream, empiricist-utilitarian mindset, defending patent law
in general and insisting that the patent system can be improved
and reformed “if only” certain tweaks are made to the system. So
while Aharonian postures as a maverick, he nips only at the margins
of whatever the mainstream IP system happens to be, but does not
buck the system as a whole.

Case in point
is a recent PATNEWS (Dec. 16, 2001), in which Aharonian critiqued Stanford law professor Lawrence Lessig’s
new book, The
Future of Ideas
(Amazon
link
), and Lessig’s modest suggestions to limit patent rights
in some areas. Several replies to Aharonian’s comments (including
a reply by Lessig) were published in the Jan.
7, 2002 PATNEWS. Among these was a
letter from an anonymous “corporate patent attorney”
criticizing Lessig, in part, on the grounds that Lessig was not
a registered patent attorney and thus did not have the appropriate
credentials to make his critique.

The newsletter
offered other critiques of Lessig as well, by other patent attorneys
and law professors. Most of them echoed the criticism that Lessig
has no appropriate patent law credentials or experience. Many, as
is typical of patent attorneys, adopted the empiricist mindset that
we have to look at evidence to compare the costs and benefits, to
decide if patent law is a good idea — and then they go on to assume
it is justified, even though they cannot point to any evidence or
definitive studies in their favor. One even defended the patent
system yet would, “until my dying days … attack the quality of
issued patents and case law, both in deep trouble”. This author
even suggests (apparently not tongue-in-cheek) that if the
government really wants to “promote the arts and useful sciences”
(the alleged goal of patent law), it should supply “freebie patent
agents for the poor, just like it supplies public defenders for
the indigent and criminally-accused.”

In response,
I sent a letter to Greg which was published in the Jan. 9, 2002
PATNEWS. Below is a lightly edited version.

Letter
to an Anonymous Patent Attorney

PATNEWS Jan.
9, 2002

A PATENT LAWYER
DEFENDS LESSIG

Greg,

The unnamed
corporate patent lawyer bashes Lessig on the grounds of his lack of credentials.
He refers to him as a PPPPP — Pompous Pedagogue Pronouncing Patent
Policies. Let me say that I am an experienced, registered (not “licensed”)
patent attorney, and I, for one, have an even greater opposition
to the patent system than does Mr. Lessig. My reasons can be found
at www.stephankinsella.com/ip.

I do not mean
to make an argument from authority, but to demonstrate that it is
indeed possible to be a patent lawyer, to know a great deal about
the system, and still to oppose it. This corporate patent lawyer
may be right about pompous, unexperienced academics mouthing off
on policy matters. But an ad hominen is no substitute for a critical
analysis of an argument. Either Lessig is right, or he is not, regardless
of his “credentials.” What is the relevance, anyway, of Lessig’s
not having prosecuted a patent before? — does anyone think patent
lawyers, when they prepare, file, and prosecute patent applications,
gain any special insights into the innovations gained by society?
Of course not; patent lawyers prepare patent applications when paid
to do so by their clients. Simple. They don’t get any special insight
into whether this government-granted monopoly is, overall, on the
whole, a good idea. If anything, they are biased in favor of the
system that butters their bread.

In fact, in
my view, most patent lawyers — most lawyers in general — fit into
the category “Pompous Pedagogues Pronouncing Patent Policies”, to
the extent they themselves unthinkingly spout pro-patent slogans.
That is because most patent and IP and even other attorneys with
an opinion on this issue mindlessly parrot the simpleminded economics
with which they were propagandized in law school. Virtually every
patent lawyer will reiterate the mantra that “we need patents to
stimulate innovation,” as if they have given deep and careful thought
to this. Of course, virtually none of them have. They repeat what
they have read in Supreme Court and CAFC (Court of Appeals for the
Federal Circuit, the primary federal appellate court dealing with
patent law issues) opinions as if the positive law enunciated by
government functionaries is some Holy Writ. It does not take a genius
to figure out why most patent lawyers are in favor of the patent
system; and it is not because they have really studied the matter
and dispassionately concluded that society is better off with a
patent system — it is because they don’t want to see the system
that pays the mortgage for them eroded or abolished.

I do not claim
that I have special knowledge as to the legitimacy of patents (pro
or con) just because I am a patent lawyer — but neither should
others. And not being a patent attorney, or an attorney at all,
is no bar to having an informed opinion on the subject (can only
women have an opinion on abortion? Only blacks on affirmative action?).
In fact, IMO lawyers tend have an unjustifiably smug view as to
their comparative advantage at formulating policy values and opinions.
(In fact patent lawyers are less knowledgeable because they
are biased. For example, IRS employees may know more about the tax
system, but is their opinion that the tax system is a good thing
especially persuasive?)

If anything,
the reverse is true: given the brainwashing and special-interest
aligning that most lawyers are subjected to, I’d take the knee-jerk,
“unsophistocated” value judgments of a “layman” any day over those
of the average lawyer. Lawyers are notoriously opinionated on political
and policy matters, yet they fare no better than the laymen in being
able to muster a coherent defense of their own policy views, preferences,
and values. At least laymen do not delude themselves that their
own policy values and preferences are some lofty, authoritative
opinion because interlaced with selected aphorisms from Supreme
Court opinions and politically-correct, mindnumbingly boring and
irrelevant law review articles. Nothing wrong with patent lawyers
doing their jobs, but they should not blindly parrot the mainstream
rhetoric spoonfed to them in law school just to delude themselves
that their profession is some categorical necessity.

Stephan Kinsella
http://www.stephankinsella.com/

Three replies to these comments, by patent
agents or attorneys, were published in the Jan. 16, 2002 PATNEWS.
Below is a lightly edited version of a response I sent to Aharonian
and the patent practitioners:

Kinsella’s
Response to Patent Practitioners

January
23, 2002

Greg,

While I am
open-minded and always willing to consider criticism and new argument/evidence
and admit I am wrong, the quality of the arguments in the three
emails
you published on Jan. 16 2002 is so poor that they give
support to my contentions. If critics have to resort to ad hominem,
disingenuity, and outright distortion of my views in order to attack
them, it might be because they are bereft of a substantive argument.
They simply don’t like the idea of abolishing the system,
and that’s it — no argument, so they seek to attack my character,
invoke ad hominem, change the subject, evade the topic — anything
but present an actually clear and coherent, civilized and reasonable
critique or alternative argument.

Excerpts from
the 3 replies to me and my responses thereto follow below:

1. Ed Suominen
(http://eepatents.com/):

> Greg,
>
> I found Mr. Kinsella’s note identifying him as “an experienced,
registered
> (not ‘licensed’) patent attorney” interesting. (I’m not sure
what he means
> by “registered (not “licensed”) — does one term apply and not
the other?)
> Here’s something that might be interesting for you to investigate
and
> report to the group. I did a search [1], but I couldn’t find
Mr. Kinsella
> in the PTO’s roster of registered attorneys and agents, which
is supposedly
> updated through January 7, 2002. Mr. Kinsella’s name did appear
on several
> patents, however, the most recent of which was filed August
26, 1997. Just
> a year later [Winter 1998], Mr. Kinsella published an article
asking
> “Is Intellectual Property Legitimate?” [2] I wonder what happened
in that
> year to change his mind, or did he think IP was illegitimate
when he
> represented clients in securing patents?
> Mr. Kinsella’s PATNEWS missive says that for practicing patent
attorneys
> (and agents, presumably), “money is more important than truth”.
>
> The impression I got from Mr. Kinsella’s writing is that I
am engaged in a
> pointless profession (the same profession he was engaged in
for years), and
> that I should be consumed with regret over the ill-gotten gain
of issued
> patents and pending applications that I have grasped and clutched
as sop
> for my inventions.
>
> Alas, were I not such a greedy capitalist, I might well
> have just given it away, exchanging my hundreds of hours of
self-driven
> effort and sacrifice for the pure satisfaction of bettering
the planet.
> Sorry, but I personally was, and am, driven by the profit motive.
>
> I’m not a
> professor seeking tenure, so publishing the material is not
compensation
> enough on its own. And somehow I don’t see how the world is
entitled to
> the fruits of my labor, just for the asking.
> (I also don’t see how that
> viewpoint is inconsistent with the libertarian philosophy,
which Mr.
> Kinsella espouses [3]. )
>
> Ironically enough, I *am* the author of an open-source software
package
> (still beta). See http://sourceforge.net/projects/tksec. If
land ownership
> can be a metaphor for *intellectual* property, then I consider
open-source
> or public domain to be the equivalent of the land donation
to the county
> parks board — a good thing to do for the community (and I’ve
done it) but
> not something that can be mandated. I choose to hold onto other
parcels of
> my intellectual property, just as I will hold onto the acreage
surrounding
> my home, thank you.
>
> Best regards,
>
> Ed Suominen
> Registered (right now!) Patent Agent (http://eepatents.com/)

In fact, I
am currently registered. The link
Mr. Suominen provided actually does list me (and my employer). The
PTO lists me by my first name, an easy inference to make, especially
since the PTO listing lists my current employer as do my articles
and website. I fail to see
how Suominem didn’t see my name in the short list of Kinsellas.
For his clients’ sake, I hope his prior art searching is better
than his PTO-roster searching.

The proper
term is “registered” not “licensed”. The PTO site itself linked
by Mr. Suominen reads, “Patent Attorneys and Agents Registered to
Practice before the US Patent and Trademark Office…” One is licensed
to practice law, but registered (not “licensed”) to practice before
the PTO.

Contary to
Suominem’s guesses, I still pursue patent protection for clients
(only one, now, since I have gone in-house), “despite” my view that
the federal patent law is unjustifiable. Likewise, I drive on public
roads and attended a tax-funded university even though I also object
to public ownership of roads or tax subsidies to education. If statists
had their way, advocates of liberty would find it impossible to
live in a semi-free world, since nothing they did would be free
of taint. This is ridiculous. Advocating liberty and property rights
does not require one add insult to injury. To suggest so is blaming
the victim.

Suominem is
also incorrect that I view him as “engaged in a pointless profession
… and that I should be consumed with regret over the ill-gotten
gain of issued patents and pending applications that I have grasped
and clutched as sop for my inventions.” That is not at all my view,
nor have I said or even implied so. In my view, there is nothing
immoral or regretful at all about pursuing patents for one’s clients.
The mere fact that a given legal/political institution, practice,
scheme, or law is unjustifiable does not, of itself, imply that
it is immoral for one to utilize and work within this scheme.

I personally
think it is morally obligatory not to advocate or seek to
establish/maintain an immoral government scheme/program, and I think
it is morally obligatory to make an honest, sincere, and thorough
inquiry as to the legitimacy of a given law, before one speaks in
favor of it. But I do not believe practicing patent law is a per
se endorsement of it, and I have no problem with patent lawyers
not taking the time to really look into this matter in a serious
way, so long as they don’t pipe up about it as if they have. I do
not think most patent lawyers have given this serious thought, but
they have been deluded, primarily by the elitism and positivism that law school
instills in them, into thinking they don’t need to. But to their
credit, IMO most patent lawyers don’t have many opinions on this
nor do they go around blathering about it as if they do have an
informed opinion; they accept the system as it is, very pragmatically,
and simply do what they do to earn a living. Simple; and I do not
criticize this.

Also, as a
hard-core libertarian, I would never condemn someone for being greedy
or a capitalist, as is clear from many of my articles available
on my website. I myself am a greedy and ardent pro-capitalist —
in Ayn Rand’s terms, I advocate the virtue of selfishness and am
a radical for capitalism.

Suominem says
he does not see how the view that “the world is [not] entitled to
the fruits of my labor, just for the asking” is inconsistent with
the libertarian philosophy that I espouse. I don’t know how I can
help him here, as my writing makes it clear exactly why I believe
patents are not compatible with libertarian property rights. I’ve
laid out in detail my case for this. If he were to take the time
to read it and come up with an intelligent substantive comment or
critique, okay. Similarly, Suominem says “If land ownership can
be a metaphor for intellectual property…” But this is question-begging
and not even a suggestion of an argument. My writings make it clear
exactly why I and others think tangible property like land is in
fact not analogous to inventions.

As a practicing
IP attorney I will admit that for years I searched for a way to
justify IP laws (unlike most IP attorneys who don’t give a damn),
but eventually realized all the justifications were flawed, and
that IP laws are, in fact, incompatible with property rights. Patent
law limits owners’ use of their tangible property whenever someone
else comes up with certain government-approved techniques/apparatuses.
This infringes property rights. I would be glad to find a good argument
for IP, but unfortunately, none of Suominem’s comments amount to
an argument or even an attempt at such.

2. “Rod
writes:

> Greg:

>
> Wow. I am a bit disappointed that you gave Mr. Kinsella such
a forum.
[...]

Ah. The typical
reply of the left and those backed into a corner: silence the arguments
of those they do not like. And evade substantive argument (I guess
I would, too, if I had no substantive, non-vacuous views). Yes,
why in the world would the freewheeling, rollicking PATNEWS newsletter
— one that publishes frequent rants by its editor against the ethics
and policies and practices of the patent bar; one that has just
published a critique by a patent lawyer of Lessig’s modest suggestion
to modify patent law? — why indeed, would he print a short letter
from a registered patent lawyer who actually has intelligent, well-formed,
controversial views on this matter? Makes no sense at all, does
it?

I would not
say “any”; and it is not an assumption, it is a conclusion based
on experience and reason.

> Maybe
there are some of us that support the system (however flawed
> in its implementation) for good, well-thought reasons.

Perhaps, but
not many, IMO. Instead of saying “maybe” there are good arguments,
why doesn’t “Rod” offer, or point me to, one? Wouldn’t that be more
direct, quicker, and less evasive/subject-changing?

> Maybe
there are
> some of us (not including Mr. Kinsella, apparently) that work
in the IP
> field because we find it to be useful for society (as well
as profitable).

I of course
work in the IP field to earn a living, there is demand for it. I
daresay this is true of most, if not virtually all, patent lawyers
— the ones I know, would retire in a second if they didn’t need
the money. Consider: how many patent lawyers, rich enough to retire,
would do the job for free, pro bono, just to “help society”? The
answer is very close to zero. Not many of the patent lawyers I know
would be so brazen as to seriously and with a straight face say
that they work in IP because it is “useful for society”. We are
a pragmatic bunch, most of us.

In any event,
there are many economic fallacies in the statement re doing things
“useful to society”. To the extent one is paid for one’s services,
that is indeed an indication of the usefulness of the service (to
the client, at least — I am not sure about “society”). People would
not pay us to prosecute patents if they did not obtain something
of value therefor.

But likewise,
the tax system is immoral, unconstitutional, and just plain stupid.
In a just society there would be no tax laws nor IRS, nor tax attorneys
hired to defend individuals and corporations hounded and persecuted
by government tax collectors. Yet, given a world where the
IRS exists, there is indeed a market for tax lawyers, and they do
indeed perform a valuable service. I oppose the patent system but
would not feel pangs of guilt were I a tax attorney, on the grounds
that I am just wasting my life in a job that “should not exist”.
I would instead take pleasure in earning money in exchange for performing
a service useful to my clients.

Doctors also
perform a valuable service, although it would be better (I suppose)
if there were no disease in the world. Are doctors supposed to regret
having to fight disease and sickness, because it is just
such a shame that there has to be disease and death? And
so on. But a tax attorney arguing in favor of the tax code, is not
very persuasive to me. At the least, his arguments are not more
credible, and I would say his motivations and sincerity are suspect.

>Mr. Kinsella
also accuses IP lawyers of being hypocritical for supporting
>the IP system. It would seem to me that Mr. Kinsella is the
hypocritical
>one, working all day, every day, in a field that he believes
to be
>counterproductive to society. What a sad life he must lead.

I don’t accuse
them of hypocrisy at all for practicing patent law or even for suporting
IP per se. I simply think they are disingenuous and insincere in
promulgating obviously-weak pro-patent arguments, all the while
pretending to have some special authority and to be disinterested.
But notice Rod’s evasion of addressing the substantive issue under
discussion.

I do not say
the “field” is “counterproductive to society”. I say that laws using
force of the state to prevent me from using my property as I see
fit, just because someone else came up with a way of doing something
with his property, are not justified. If Rod thinks he can
justify such laws, which are tantamount to partial forcible expropriation
of private property by the state, I welcome him to do so. But to
change the subject for focusing on character etc. is easier, I suppose,
than having a substantive discussion, at least when one has no good
arguments to draw upon.

As for the
“sad life” comment, I have no comment for such uncivil discourse
or disingenous, dishonest argumentation.

This is just
wrong, and laughably, blatantly so. Libertarians, qua libertarians,
believe in individual rights (an objective truth, by the way); and
many, including me, do in fact hold objective and absolute, universal
and non-relative, moral and other views. Many libertarians, for
example, are Objectivists (link2) (adherents of Ayn Rand’s
philosophy). Of course they believe in objective truth. Unlike an
empiricist-positivist like Milton Friedman, I do not ground my defense
of rights and liberty on skepticism (the idea that we cannot know
what the “best” way to live life is, and “therefore” we should nor
impose lifestyles by force on people). I simply believe that even
if we can know some things are objectively immoral, it still does
not justify the use of force against the immoral action, unless
that immoral action itself involves force.

> Sorry
to dump on him, but he really attacks IP attorneys, and concludes

> that anyone who doesn’t agree with him is dishonest and a toady.

Again, note
how the author here, instead of proposing — or even pointing to
— a good substantive defense of patent law, takes umbrage at my
pointing out that members of the patent bar might be biased in favor
of the patent system! I would bet that a greater-than-average percentage
of postal employees oppose the privatization of the post office,
and a greater-than-average percentage of public school teachers
oppose abolishing redistribution of wealth from taxpayers to public
schools. I wonder why.

But I could
be wrong. Maybe every pro-patent patent lawyer is sincere. Still,
the arguments they put forth are lacking in substance and rigor
— such as the anonymous ad hominem one attacking Lessig for not
having the right credentials, instead of actually mounting a serious
substantive case.

3. Stan Protigal
(http://elman.com/) writes:

> There’s
more to this guy than meets the eye.

You mean I
am not “just” a patent lawyer?! Gasp! What an outrage!

> He has
published articles
> advocating, inter alia, sending all of the Jews in Israel to
Federal
> reservation land. He suggests either in the desert along the
border of Utah
> and Nevada (atomic test site or just Bryce Park?) or to the
upper Arctic
> reaches of Alaska. (What about the sea? – oh that idea’s
already taken.)
> http://archive.lewrockwell.com/orig/kinsella5.html

> [...]

So here we
have it; if one cannot attack an argument on substantive grounds,
subtly accuse its author of anti-semitism. I never advocated “sending”
Jews to reservations. Instead, I advocated (generously, IMO) offering
them some of our unused public lands, and of eliminating taxpayer
subsidies to Israel (and Egypt and the rest). The article he links
above notes that the Israelis themselves at one point considered
Uganda and other places as a possible home for Israel.

> Perhaps
his positions on patents are more closely tied in with his politics

> in general than anything relating to the patent system.

I am not clear
how this is supposed to be a criticism — Why, yes, my views on the
legitimacy of patent laws happen to be “tied in” with my general
political views. Heaven forbid we have a systematic political philosophy
with implications for which laws are good and bad! Heaven forbid
someone has a serious and thought-out system of views on the proper
nature and role of government, individual rights, and law, and applies
it to various areas of interest, like IP law, and comes to actual
conclusions that differ with those of most of his fellow patent
lawyers. After all, we can’t have anyone pointing out that the emperor
has no clothes.

Interestingly,
I received several emails from other recipients of PATNEWS commenting
on my letter, ranging from merely interested to very supportive,
and none of them negative or hostile. Maybe there’s hope after all.

FURTHER
READING

For theoretical
and other analyses, see my articles, and others linked at: www.stephankinsella.com/ip

APPENDICES

Replies
to Kinsella’s Comments re Aharonian/Lessig

PATNEWS
Jan. 16, 2002

CRITIQUES
OF LAWYER WHO DEFENDED LESSIG IN RECENT PATNEWS

Recently I
sent out a defense of Prof. Lessig by a patent lawyer from a charge
of qualification-lack made by another patent lawyer, in the context
of my critique of Lessig’s patent commentary in his new book. The
saga continues with a few critiques of Lessig’s defender.

Greg,

I found Mr.
Kinsella’s note identifying him as “an experienced, registered (not
‘licensed’) patent attorney” interesting. (I’m not sure what he
means by “registered (not “licensed”) — does one term apply and
not the other?) Here’s something that might be interesting for you
to investigate and report to the group. I did a search [1], but
I couldn’t find Mr. Kinsella in the PTO’s roster of registered attorneys
and agents, which is supposedly updated through January 7, 2002.
Mr. Kinsella’s name did appear on several patents, however, the
most recent of which was filed August 26, 1997. Just a year later
[Winter 1998], Mr. Kinsella published an article asking “Is Intellectual
Property Legitimate?” [2] I wonder what happened in that year to
change his mind, or did he think IP was illegitimate when he represented
clients in securing patents?

Mr. Kinsella’s
PATNEWS missive says that for practicing patent attorneys (and agents,
presumably), “money is more important than truth”. Was it so for
him in 1997 and before? Was he (quoting him again) choosing to “simply
go along to get along” then, “know[ing] where the bread is buttered”?

The impression
I got from Mr. Kinsella’s writing is that I am engaged in a pointless
profession (the same profession he was engaged in for years), and
that I should be consumed with regret over the ill-gotten gain of
issued patents and pending applications that I have grasped and
clutched as sop for my inventions. Alas, were I not such a greedy
capitalist, I might well have just given it away, exchanging my
hundreds of hours of self-driven effort and sacrifice for the pure
satisfaction of bettering the planet. Sorry, but I personally was,
and am, driven by the profit motive. I’m not a professor seeking
tenure, so publishing the material is not compensation enough on
its own. And somehow I don’t see how the world is entitled to the
fruits of my labor, just for the asking. (I also don’t see how that
viewpoint is inconsistent with the libertarian philosophy, which
Mr. Kinsella espouses [3]. )

Ironically
enough, I *am* the author of an open-source software package (still
beta). See http://sourceforge.net/projects/tksec. If land ownership
can be a metaphor for *intellectual* property, then I consider open-source
or public domain to be the equivalent of the land donation to the
county parks board — a good thing to do for the community (and I’ve
done it) but not something that can be mandated. I choose to hold
onto other parcels of my intellectual property, just as I will hold
onto the acreage surrounding my home, thank you.

Best regards,

Ed Suominen

Registered
(right now!) Patent Agent (http://eepatents.com/)
Independent Inventor of Electrical Engineering Technology
U.S. Patents 5,926,513; 5,937,341*; 6,052,748*;
6,069,913; additional patents pending* (*Available for licensing:
DSP,
speech & handwriting recognition, cryptography & RF receiver
technology)

[1] See http://www.uspto.gov/cgi-bin/attorney/atty.cgi?Stephan&max=1000
and http://www.uspto.gov/cgi-bin/attorney/atty.cgi?Kinsella&max=1000.
Also, I did a dtSearch of the entire 7MB+ text file (date stamped
1/7/2002) of the Roster with the query “kins* w/20 ste*”. It revealed
only an entry for “”Peterson”,”Paul” of “10845 Kinsman Road” next
to an entry for “Peterson”,”Stephen”

[2] http://www.stephankinsella.com/publications.php#IP

[3] http://www.stephankinsella.com/publications/bio2.php

>From rod@all-ip.com
Wed Jan 9 14:50:37 2002

Greg:

Wow. I am a
bit disappointed that you gave Mr. Kinsella such a forum. OTOH,
you did give me the chance to check out his views, and maybe you
just published his note just out of fairness. In that way, thanks.

(Greg
note: for the most part the policy of PATNEWS is laziness. If you
send me something with attitude that I don’t have to type in or
edit much, I probably will send it out. :-)

Mr. Kinsella
also accuses IP lawyers of being hypocritical for supporting the
IP system. It would seem to me that Mr. Kinsella is the hypocritical
one, working all day, every day, in a field that he believes to
be counterproductive to society. What a sad life he must lead.

Sorry to dump
on him, but he really attacks IP attorneys, and concludes that anyone
who doesn’t agree with him is dishonest and a toady. Hardly the
“truth”, don’t you think?

Rod

>From protigal@elman.com Thu Jan 10
09:16:23 2002

Hi Greg –

There’s more
to this guy than meets the eye. He has published articles advocating,
inter alia, sending all of the Jews in Israel to Federal reservation
land. He suggests either in the desert along the border of Utah
and Nevada (atomic test site or just Bryce Park?) or to the upper
Arctic reaches of Alaska. (What about the sea? – oh that idea’s
already taken.) http://archive.lewrockwell.com/orig/kinsella5.html

His theory,
as nearly as I can determine, is that this is necessary to appease
UBL.

Perhaps his
positions on patents are more closely tied in with his politics
in general than anything relating to the patent system.

— Stan

Replies
to Greg Aharonian’s Comments on Lessig

PATNEWS
Jan. 7, 2002

In a recent
PATNEWS, I critiqued Prof. Lawrence Lessig’s new book on intellectual
property law and the “content” industry, title “The Future of Ideas”.
Of the 268 pages in the book, I focused on the ten or so dealing
with patents, which I thought were not well written and contributed
little to his book. And still think so. The book would suffer nothing
from removing these pages, especially given their tone of MAYBE
there is data to show that MAYBE patents MAYBE causing some problems
for “content” any different than other industries routinely deal
with. Too many MAYBEs.

What follows
is some comments on my critique from PATNEWS readers, followed by
Lessig’s critique of my critique (along with some critiques of mine
about Lessig’s critiques – I get the last word since as people
seem to forget, this is MY newsletter).

Greg Aharonian
Internet Patent News Service

(From a Washington
DC patent lawyer)

Greg:

Interesting
critique of Lessig.

Here’s one
additional perspective that I find interesting. The patent systems
in many Asian and South American countries are weak to non-existent.
Indeed, in some of these countries patent protection is forbidden
for certain technologies of significant public importance (e.g.,
medicine). Under Lessig’s model these patent-free countries would
become high-tech Mecca’s, in which entrepreneurs would be free to
innovate without serious threat of legal impediment.

Yet the reality
is that, by and large, the most significant technological innovations
continue to originate in precisely those countries having the strongest
patent systems.

(From
a corporate patent lawyer)

Thanks for
this critical review Greg. You can add this:

I would suspect
that Stanford Law Professor Lawrence Lessig and his ilk will be
typical of the PPPPP* patent-bashing witnesses the FTC will trot
out in its upcoming public hearing. i.e., academics who are not
even licensed to practice patent law, never even having passed the
PTO patent bar examination (I just checked the PTO attorney roster
list on the PTO web site), never having worked in or with the PTO,
and probably never even having written, prosecuted or litigated
a patent in their life.

*Pompous Pedagogues
Pronouncing Patent Policies

(Greg note:
I am sure this PATNEWS reader, if he wants to keep his subscription,
is not putting PATNEWS in the PPPPP category :-)

(From an actual
professor of patent law)

Greg,

Thanks for
pointing out the Lessig book is ill-informed and ill-thought through
(a problem I have with most young academics who decide, based on
NO actual experience in the subject) that they can make patent law
their subject. I have often likened their writings to people discussing
life beyond the solar system: “we can all speculate equally well
because nobody really knows” seems to be their drift. But of course,
people DO know about patent law. Often a simple phone call would
have keep them from looking so foolish. The fact that they write
for law reviews, where students with even less knowledege than the
authors are their editors, just makes it all worse.

(From a government/private
patent lawyer)

Greg,

Some interesting
background information about IP economics.

In 1996, for
a presentation to a Smithsonian Associates – Johns Hopkins
U. course on Invention and Innovation, I looked into historical
evidence on the economics of patents. It turned out to be all hand-waving.
There wasn’t a single reliable source that I could find. The standard
reference (Jewkes, Sawers, Stillerman) was completely unpersuasive.
There was a paper in Science ca. 1980 that claimed to find a greater
monetary return to society than to the patentee. Unfortunately the
study required that the inventions and patents they investigated
not be revealed, so there was no way to check their data.

>… (Lessig
should take a look at
> some of the recent papers by Mark Lemley at UCal Berkeley’s
law school,
> which do present numerical data on IP practices.)

Your critique
of Lessig is right on. The trouble is he knows nothing of patent
law, like most (but not all) law professors. It’s only recently
that law schools have been hiring registered practitioners like
Lemley.

If I don’t
lapse into senility sooner, I want to look into the intersection
of the history of technology and patent law. But I’m afraid that
there’s too little good data out there, and what there is is widely
scattered. We need more research projects like the Thomas Edison
papers, especially since there’s a lot of faulty stuff out there
that purports to be historical. Jim Carmichael, then an Administrative
Patent Judge and now in private practice, published a reminiscence
about Edison and his patents in the ABA IPL Newsletter ca. 1997.
I think he got it from Judge Rich, who may have found it in his
father’s papers. I put Jim in touch with the then-editor of the
Edison papers, who could show that the reminiscence was almost totally
without foundation in fact. Unfortunately it appeared in print before
any corrections could be made.

(From a Silicon
Valley patent lawyer)

Right on Greg
!!! Instead of attacking patents you are finally defending the system
(to some extent). (Greg note: PLEASE PEOPLE, I fully support the
statutory basis of the patent system, even more so than everyone
in the patent world (a future surprise). But until my dying days,
I will attack the quality of issued patents and case law, both in
deep trouble).

Prof. Lessig
probably does not get the telephone calls I get in my practice.
We routinely get calls from solo inventors who think they have a
great idea but they are afraid to approach VC’s and/or major companies
for development support out of fear that the strangers will steal
the idea and the inventor will get nothing. Maybe I should route
some of these calls to the Professor to see how he replies. What
will he say to these people: Don’t think about patents? Give away
your workproduct for free? Asking for compensation is un-American
— it stifles innovation?

Unfortunately
for small inventors, the patent system does not offer a one-stop-shopping
solution. Lawyers are expensive. Do-it-yourself is fraught with
pit falls. Nonetheless it is better to have some patent system than
none at all. Perhaps the Prof should instead argue that government
should be supplying freebie patent agents for the poor, just like
it supplies public defenders for the indigent and criminally-accused.
If we truly want to promote the arts and useful sciences, then where
are our deeds beyond just the mere words of encouragement?

(From a corporate
patent lawyer)

Good critique
Greg. I was struck by how often things were “obvious” to Lessig
that are not obvious to anyone actually working in the field.

As for the
anticommons, a far better argument can be made that it affects bio-tech
patents than software patents. Mere conjecture that software patents
may be subject to such, and thus we need to change the system is
patently absurd.

Before he can
really talk about the anticommons, someone (maybe Prof. Lemley again)
would need to actually look at patent licensing practices in the
industry. I suspect that what would be found is that a lot of patents
are being awarded to companies already involved in cross-licensing,
and that many of the rest are narrow enough not to cause much in
problems – but again, just a guess.

(From a patent
lawyer)

Greg,

Unless there
has been a fundamental change in human nature during the last 200
years, I vote with Thomas Jefferson..

“The
issue of patents for new discoveries has given a spring to invention
beyond my conception,” Thomas Jefferson.

“Everyone
loves a treasure hunt,” Paul Hentzel.

“Several
of al-Jazari’s (a 12th century Islamic mechanical engineer) machines
have been reconstructed by modern craftsmen working from his specifications,
which provided far more detail than was customary in the days before
patent law was invented . . . . Such openness has rarely been encountered
until recent times.” “Mechanical Engineering in the Medieval Near
East”, Donald R. Hill, Scientific American, vol. 264, no. 5, May
1991, p. 104

>From lessig@pobox.com
Mon Dec 17 14:47:49 2001
Date: Mon, 17 Dec 2001 12:48:21 -0800
Subject: PATNEWS: Critique of Lessig’s “Future of Ideas”
From: Lawrence Lessig

Greg:

Thanks for
the attention to my book. I’m only sorry I did such an apparently
awful job in conveying what is, I believe, the least controversial
claims in my book.

(Greg
note: well if I got confused, imagine how confused those in the
general public will be, since your book is not for legal professionals.)

My aim with
respect to patents was to do things: (1) to establish the strong
and bipartisan pedigree for the claim that patents are a different
sort of “property”; (2) to establish the uncontroversial claim that
while we can see the costs of a patent system, we have no good evidence
that the benefits of the system outweigh those costs. Nothing in
your animated response actually responds to either claim.

(Greg
note: I was responding to specific comments, not your overall thesis,
which you admit, was not conveyed well. And I question your focus
on economics, given the generalal lack of any economic data in the
book. Here is one, for example – whatever the costs of the
patent system, it has given the US the benefit of being the leading
economic power in the world. Causal or not, it least it is economic.)

You rightly
note that Franklin, Jefferson, and Hayek can’t tell us much about
whether software patents do any good. True enough: they were offered
for claim (1), not claim (2). And you rightly note that we have
no good data that the patent system has harmed innovation. Again,
true enough: but it is a mistake of logic to equate my assertion
“that we have no good evidence that on balance the system does good”
with the claim “that we have good evidence that the system is doing
harm.” The former obviously does not entail the latter.

(Greg
note: then unless you are being inflammatory, you should have written
“that we have no good evidence that on balance the system does good
or bad” which is probably the statistical thing to do.)

The difference
between us — as you know from a relatively extensive exchange in
email and in public — is that I believe the government should have
some evidence of the good that its regulation will do *before* it
regulates; you believe those who attack the regulation should prove
the harm in a regulation before the regulation is stopped. This
is a difference in baselines, which it might well be good for people
to debate. I’m happy to confess the lurking Republican bias in my
argument against the “regulate first, justify later” school of government.
But that bias is not at all addressed by your lengthy critique below.

(Greg
note: but software and business method patents are not new regulations,
but the logical extension of an existing regulation. So I ignore
the bias, especially because the paymasters of the Republican party,
other than the cretins, are corporate America which fully supports
the currently broad-scoped patent system.)

Instead, you
seem to believe that the existing system is sufficiently justified
either because (1) the harm from these patents is no worse than
the harm from other patents, or (2) the equal protection clause
somehow requires we be as stupid with respect to these patents as
we may have been with respect to other patents. With respect to
(1), I’d just note that now it is you who are making an affirmative
argument about what the data show, and to quote you back to you:
“WHERE’S THE DATA?”.

(Greg
note: Where’s my data??? Grow up. My newsletter isn’t being written
by a prestigious Stanford law professor being funded by a publisher
to write a book to the level of standards expected of Stanford students,
let alone their professors. By the way, I do have data, and better
legal arguments, for a book I will be self-publishing, and unlike
you, I will be asking you to review it.)

And with respect
to (2), I can assure you, there is no requirement under the equal
protection clause that the government subsidize anyone. Does Ford
have an equal protection claim because it didn’t get the bailout
that Chrysler got? Do unemployed airline workers have an equal protection
claim because they didn’t get the 911 benefits that airlines did?
Obviously (I hope) in both cases the answer is no, and neither with
patents. Patents are a form of government subsidy; the decision
not to extend that subsidy to any particular field of invention
does not raise any constitutional claim.

(Greg
note: policy decided by the CAFC to fully allow patenting of software
and business methods, your focus in the book, was not based on subsidy
theory, but rather the inherent patentability of such technologies.)

Finally, I
completely agree with you that those who have a vested interest
in the existing system — either the good or the bad of the existing
system — don’t have much interest in changing it. But I do not agree
that the Patent Office is incapable of an effective study of whether
their regulations do any good. I know you like to cast all this
in terms of good versus evil, hardworking versus “lazy.” I don’t
think that is a very helpful way to proceed. If Congress charged
the office with the task, and gave them adequate resources to execute
it, I’m quite confident they would do as well or better than practitioners
whose livelihood depends upon the system staying much as it is.

(Greg
note: the PTO does not have enough economists and access to enough
data, nor the independence, to do such a study. Heck, we can’t get
Congress to fund a study of the patheticness of Rule 56, and its
big impact on patent quality and industry economics. And given the
PTO’s continual refusal to make available and publish convenient
data on prior art associated with patents, you want them to oversee
an orders larger study of the entire patent system?)

Lessig
Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610

Greg
Aharonian’s Comments on Lessig

PATNEWS
Dec. 16, 2001

!20011215 Critique
of Lessig’s “Future of Ideas”

While I will
be critiquing the entire book in a future PATNEWS, with this PATNEWS
I will focus on his commentary on patents, basically those ten pages
from 205-215.

====================

“But
now I want to describe a second form of protectionism – perhaps
more threatening to the promise of the Internet’s future. This threat
too is the product of state intervention into Internet space. And
this intervention is even harder to justify. … The issue here
is patent law.”

“Threatening”
– I hope we will be seeing some strong, assertive data. Dashed
hopes instead.

“But
here, economists have an important qualification: If we don’t know
which direction an improvement is likely to take, then licensing
may not occur, and patents here may actually do harm.”
^^^ ^^^

MAY and MAY.
But where’s the data? He cites a few economists’ comments on the
effects of patents, but economists’ models have mostly been too
simplistic and/or too unconclusive. He offers no data of his own.
Such a combative book with no new data, and little old data. Next
he uses the biblical-authority argument:

“This
skepticism has been with us from the start of the patent system.
Ben Franklin thought patents immoral. … The first patent commissioner
himself – Thomas Jefferson – was also extremely skeptical
about these forms of monopoly.”

Look, these
were great men, but Franklin that it was moral to deny woman the
right to vote, and Jefferson thought it moral to own slaves and
to deny African Americans the right to vote. Such historical ancedotes
have little relevance in a IP discussion 250 years of science and
technology developments later. So Franklin and Jefferson voted unskeptically
to deny women the right to vote but voted skeptically to have a
patent system.

Another quote
is a good example of some of the misleading information included
in the book:

“But
in the past twenty years, an important shift has occurred. The limits
to the reach of patent law have been eroded by a number of expansions
in patent law doctrine. “These changes”, Adam Jaffe [an economist]
writes, “were not brought about primarily by Congressional action,
but rather by the … Patent Office.”

Now Lessig
(and Jaffe) knows that the Patent Office does not establish patent
law doctrine, but rather only implements patent law doctrine. Patent
law doctrine is for the most part established by the Court of Appeals
of the Federal Circuit (CAFC), with the occasional higher involvement
of the Supreme Court. In fact, the patent doctrine expansion most
tourbling to Lessig, software patenting, was actually resisted by
the Patent Office for (way too) many years. Chakrabarty (organisms),
Lowry (data structures), State Street (business methods), Pioneer
(seeds) – these are all expansions of patent law decided by
the CAFC and the Supreme Court. This quote does not belong in the
book.

Next he is
inaccurate with the history of software IP.

“Before
the 1980s, software inventions in the United States were not subject
to patent protection. The reasons were tied to the nature of programming
(programs were considered algorithms, and algorithms were traditionally
not protected).

Wrong. In the
1960s, software was used by hardware vendors to sell their hardware,
led and dominated by IBM. They didn’t want software patents getting
in the way, and wrote such business goals into a Presidential Commission
report that found its way into a 1972 Supreme Court decision, Gottschalk
v. Benson. This decision and its ill-begotten spawn (CONTU), the
reason why algorithms were thought not to be patentable, was a decision
repeatedly criticized in the years to follow, a decision which took
20 years of CAFC decisions to render obsolete.

A bit later,
he contradicts the earlier Jaffe quote:

“In
1998, however, the United States Court of Appeals for the Federal
Circuit put this idea to rest. The patent law reached business processes
just as any other, and patents for business methods, were, the court
held, not invalid because of the subject matter.”

Right. The
CAFC establishes doctrine, not the PTO as the economist Jaffe asserted.

He then provides
misleading information at a crucial point in his attack on patents:

“While
it is clear that patents spur innovations in many important fields,
it is also clear that for some fields of innovation, patents may
do more harm than good. {90}”

Once again,
a MAYBE, because he has no data of his own. Footnote 90, which he
bases his assertion on the harm of some patents, is a reference
to a paper by James Bessen and Eric Maskin titled “Sequential Innovation,
Patents and Imitation”, which using highly artificial and simplistic
economic models concludes that under some conditions patents maybe
bad. He also quotes a book, Patently Absurd, “[T]he rush to acquire
patent portfolios could slow down the generation of new ideas.”.
MAY, MAYBE, COULD – truly wimpy assertions with little real
world data.

He then inadvertently
proposes an idea for a serious book on this subject:

“My
claim is not that these transaction costs are so high as to make
patents unadvisable in the Internet context. My point is simply
that these considerations, supported as they have been {96}, at
least raise a question.”

Footnote 96,
his support for this assertion, once again is the paper of Bessen
and Maskin. Attacking patents based on Bessen/Maskin is like shooting
rubber bands at an elephant.

But he is right,
this is an interesting question. So let’s collect some real data,
not write these MAYBE books. (Lessig should take a look at some
of the recent papers by Mark Lemley at UCal Berkeley’s law school,
which do present numerical data on IP practices.) But I doubt a
book on the patent impact on the Internet will be funded because
the data will show that the impact of patents on Internet/software
has been no different than the impacts of patents on other fields
of technology (maybe even milder, biotech has bigger patent woes),
and that the impact of patents on business, good and bad, is generally
handled by and accepted by most industries. Problems, especially
low patent quality and high litigation costs, sure. But those are
logistic problems, not legal problems.

He then once
again forgets who establishes patent policy, citing one of the more
rather clueless commentators on intellectual property laws:

“Publisher
and Net guru Tim O’Reilly was on the same panel. He had a quick
and devastating response. The head of the USPTO, O’Reilly said,
has two roles in the administration. One is, as Dickinson had just
said, to run the office. But the other is to advise the administration
about what policy made sense. And where, O’Reilly asked, following
up on my own question, was the policy analysis that justified this
extraordinary change in regulation?”

Devastating?
I think not. Sure, the PTO offers advice to Congress and to the
Administration. And to the courts, which is where the types of policy
changes Lessig cares about are actually established. But Congress
has pretty much let the courts’ analysis set patent policy, because
that’s what the large companies that dominate intellectual property
want, and Congress obeys.

He then cites
some more history:

Another bit
of laziness:

“But we will
never know whether or not it [patent system] does any good if we
accept this never-ending expansion without limit. We will never
know what benefit this regulation provides until we begin to demand
that the regulation prove itself. For the harms from this regulation
are not hard to identify, and for the cynical, or conspiratorial,
the harms are not surprising.”

How can we
never know about something that is not hard to identify? SHOW ME
THE DATA. Here is one good of the patent system – it helps
some startups raise money.

“The harms
are even more pronounced, however, for open code projects.”

SHOW ME THE
DATA. Open code is more plagued by being based on faulty business
models and the open coder’s lack of education about intellectual
property, than threats from patents.

“As Richard
Stallman writes, ‘The worst threat we face comes from software patents,
which can put … features off-limits to free software for up to
twenty years.’”

“The reasons
patents harm open code in particular is not hard to see.”

SHOW ME THE
DATA. In fact, one of the few data points of actually harm and financial
loss is, …….., Greg Aharonian. My lawsuit is based on my Web
site’s use of open source software (I use the Apache server). Most
other harm is that found in every other industry with patents.

He then points
out a problem I agree with, but again this is a logistic problems
solved by toughening up implementation of Section 112:

“The problem
is exacerbated with software patents because though the patent system
was designed to induce inventors to reveal their invention to the
public, there is no obligation that a software inventor reveal his
source code to get a patent.”

I agree completely.
Much like the biotech patents, Section 112 dealing with enablement
is a big problem with software patents, right after 102 lack of
novelty and 103 lack of non-obviousness. Every software patent application
should include a diskette with the source code on it (no silly best
mode objections, please), just like the gene sequence people have
to submit their gene sequences. And the PTO should make available
an online database of these source codes. Think of it – an
online database of over 100,000 computer programs in source code
form – it would dwarf everything similar on the Internet, such
as freshmeat.

Next, a comment
that no IP academic really gives a damn about:

“And
then there is the expense of patents, which is borne more sharply
by smaller inventors than larger.”

I have yet
to see an academic law journal article seriously explore the costs
of small inventors acquiring and defending patents. Isn’t there
at least one activist law school to do a better version of PATNEWS?

Next, another
“harm”:

“Finally
there is the obvious hold-up problem – where an innovator is
about to release a product and is discovered to be violating a patent.
…. As [Berkeley economist Carl] Shapiro concludes: ‘[T]his hold-up
problem is very real today, and … should [be considered] a problem
of first-order significance in the years ahead.]

This is a problem
that affects all industries, not just software, so it is not a problem
that can be used to attack software patents. And if we can improve
the quality of issued patents (another issue of no interest to academic
law journal articles), the problems of hold-up are lessened.

He then wanders
into the economics of commons:

“Nobel
Prize-winning economist James Buchanan has expanded this idea to
the problem of regulation generally. He points to the problem of
patents in particular as an example where multiple and overlapping
patent protection may create an anticommons, where innovators are
afraid to innovate in a field because too many people have the right
to veto the use of a particular resource or idea. This potential
for strategic behavior by these many rights holders makes it irrational
for an innovator to develop a particular idea, just as the possibility
of veto by many bureaucrats may leave a particular piece of real
property underdeveloped.”

MAY. POTENTIAL.
POSSIBILITY. Again, SHOW ME THE DATA of harm. And if you do collect
the data, I suspect it will show that the anti-commons problem for
software patents, assuming it exists, is no different and probably
milder, than other areas of technology such as biotech and integrated
circuits.

He concludes
his patent commentary:

“The
complexity in these rights to exclude creates this anticommons problem.
And the more severe the problem, the more it will stifle new innovation.”

MAYBE. But
where is the empirical data showing real stifling effects on the
software industry because of patents, especially data that shows
the effects are substantially worse than the impact of patents on
other fields of technology? Are too many bad software patents issuing?
Sure. Can we economically decrease the number of bad software patents
issuing? Just as sure.

The
urgency [for reform] in the field of patents is even greater. Here
again, patents are not evil per se; they are evil only if they do
no social good. They do no social good if they benefit certain companies
at the expense of innovation generally. And as many have argued
convincingly, that’s just what many patents today do.

A few sentences
later:

In
particular, [the PTO] should be required to perform an economic
study to justify the most controversial extensions of patents right
now – business method and software patents. If these forms
of innovation regulation can’t at least meet the burden of demonstrating
that they are more likely to aid innovation than harm it, then Congress
should withdraw this form of monopoly protection.

Never say that
Lessig doesn’t have a sense of humor – these two sentences
are hilarious. First, after lambasting the PTO for being unfair
he calls for the PTO to do a fair study that conceivably could not
be in the bests interests of the mandarins that run the PTO. It’s
like the NRC being asked to do a critical study of the nuclear power
industry (hahahaha). Second, no other technology has been asked
to demonstrate that their patents aid innovation more than harm
– why should software and business methods technologists be
asked to do so? Seems to me violate some equal protection aspect
of federal laws that Lessig champions.

His last comment
on patents?

In
the meantime, there are smaller changes that Congress might make,
all designed to lessen the harm patents generally, and bad patents
in particular, might cause.

Yea, like what?
He couldn’t have devoted one more page out of 261 to mention a few
of these smaller changes. I hear Lessig is going to lead a campaign
of patent law academics to call upon all patent prosecutors to charge
their clients less money so that their clients can have more money
to do prior art searches (or pay higher fees to the PTO to have
them do better searches), as well as demanding that Rule 56 be greatly
toughened, and that the Jepson format be mandatory. (YES, this last
sentence is dripping sarcasm).

Greg Aharonian
Internet Patent News Service

January
25, 2002

Stephan
Kinsella [send him mail]
practices patent law in Houston. His website is www.stephankinsella.com.

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