Patenting patents

Amazon patents taking a photograph against a white background.

In a patent simply called Studio arrangement Amazon took IP ownership on what we all call shooting against a seamless white backdrop.

It might seem like satire but the patent is here.

So if patents are going to be given for the bleeding obvious and concepts that have been used for decades then I am going to apply for 2 patents that will make me millions!

The first patent is for the concept of filing patents. Everyone who intends to file a patent will be breaching my patent. Licensing to apply for patents will be permitted on payment of a small fee.

The second patent is for the concept of licensing, of receiving payment when someone wishes to use a patented concept. Thus no one will be able to receive any royalties for patented concepts without violating my patent which, again, will be permitted for a small payment of 1% of the agreed license fee.

Patents and price setting

A conversation with my pastor got me thinking about how we treat patents. He is more socialist minded than I. In defence of his position he used a patented medical product as an example of what he considered excessive markup within the market. The problem as he saw it was that people would mortgage their homes to purchase medications if it would potentially cure them, or stave off death for some time.

Now one could argue for the market based on the fact that the company has invented a cure that was not previously available; without the company the cure would not exist. So perhaps they should be allowed to charge what they will. And people are willing to pay large sums of money for medical promises that are known to provide no benefit. Health is a difficult area. One could argue for some federal involvement or oversight because health is an area that people are forced into (sickness is not usually a choice), and they often make decisions in a vulnerable state. Perhaps an issue for another time.

Nevertheless, the discussion got me thinking. Arguing for the free market using patented products has one on the back foot. Competition and productivity allow for low prices for consumers and wealth creation. Patents interfere with this mechanism.

Patents apply to intellectual property, which is not property at all. A better argument for patents (and copyright) is that the government allows a temporary monopoly to sell in acknowledgement that the person created the concept. Such reasoning for patents has some merit. If we accept this however, we are appealing to the government to enforce our monopoly. This raises the question as to whether the government can also have a say on the conditions of monopoly.

I think an argument can be made that allows the government to set minimum sales figures and maximum prices. The first is to prevent artificial scarcity, driving demand by intentionally limiting supply, a supply that cannot be made up by competitors. The second to limit profiteering, especially of a product that is excessively desirable such as a cure for cancer.

Now one could argue (as above) that these products would not exist if it were not for their inventors, and people are no worse off if such an item does not come to the market than they were prior to the invention. This is not necessarily the case however. People are creative. It is likely that several people would occasionally invent similar things to solve a problem. Here are a couple of situations.

The first is software. There seem endless patents in software for ideas that many programmers would solve given a problem. It seems that many patents are little more than a race to state (code) the obvious. There is true innovation, but not all of it is. If several programmers come up with a solution independent of each other and are hit with patent infringement, perhaps it wasn't that innovative.

The second is biomimetics. Many ideas arise from imitating an idea derived from the living world. Think velcro, though there are many others. Copying design from the living world has led to a plethora of new creations. Of course such activity still requires much research and subsequent experimentation. But again this is a race to copy more than be innovative. If several researchers copy the same part of an organism to create a similar machine or product, the first there gets all the benefit.

Some ideas arise from a single person and may be unlikely to arise in the near future otherwise. Our situation is not really different after such a product becomes available but prohibitive to acquire than what it was before that person invented it. However consider when similar ideas arise frequently. Our situation may improve as useful products become available and competition lowers price. But if the right to production limited to the first person to register it then the consumer fails to gain these benefits because other creators who are prepared to make and sell the product are prohibited from doing so. The monopolist may price the product significantly above production cost and outside the price range of many people, yet others who arrived at the idea independently and who are prepared to sell marginally above cost are prevented from doing so by law.

If we are to have a state enforced private monopoly for creativity via patent and copyright law then perhaps the state can dictate the conditions of the monopoly. Such a position would mean that creators could either patent or not patent a concept. If they choose not to patent they can sell the quantity they wish and charge what they will with the benefit of being the first to the market and the ability to maintain secrecy. Competitors would need to reverse engineer a product then copy it as best they can. If the creators choose instead to patent their concept then they gain a temporary monopoly enforced by the state but must sell a minimum number of products at a fixed price (or markup), both set by the state.

Intellectual property is information

Property as property proper is matter. It is material. It has height, width, depth and weight (mass). One could extend this to other attributes of matter such as current, time and temperature. Thus energy could be considered property which can be bought and sold. Though something being matter does not mean it necessarily can be bought and sold, many things have no ownership, or shared ownership.

Property as matter is fixed in time and space. It can shift in time and space, but it occupies space such that its presence in one place precludes its presence elsewhere. (Exceptions are when something is considered as a whole but can be split up, like air and water).

Ownership of an item means that it is your possession or under your oversight. You get to determine how it is used (within the confines of legality).

The limitation of locality and the fact of ownership means that a person can take an item, or place a claim to an item that is not his. Such behaviour is considered theft. It would include taking a computer from work, tomatoes out of your neighbour's garden, or shifting a boundary marker.

Contrast this to what is referred to as intellectual property. I have suggested we use an alternative term to prevent equivocation on the word property; such as "concept", "conceptualisation", "idea", "abstraction", or perhaps a Greek or Latin derived neologism. I will use concept in this post.

Concepts are information. Information does not have qualities of matter. It does not consist of length (in the usual sense), mass, time, current, or temperature. Thus it is non-material. It is still a real entity, just not a material one.

Therefore concepts are not restricted by the laws of physics. Concepts can be duplicated. Concepts can be lost or destroyed. Greek fire is a concept that has been lost. There is no conservation of matter or energy law that corresponds to concepts.

This means that concepts cannot be stolen in the way that property can be stolen. If you give someone else your concept you still have it. Because you still have your concept you cannot say that it has been removed from you. You can still use your concept. The difference is that now someone else has access to the concept and can use it as well.

I used the example of an axe. If someone steals your axe then they have it and you cannot use it. But if someone sees your axe and makes his own then he has not stolen your axe, you still have it. He now also has an axe because he has used your concept: the idea of attaching a splitting wedge to a stick.

Concepts can be mildly to very complicated. Complexity does not correspond directly to usefulness. And less complex concepts are not always obvious before the fact. A less complex solution to a problem may replace a more complex solution because of simplicity and cost.

The distinction between property as matter and concepts as information is foundational. One that must be apprehended before discussion about what copyright might entail. A rule of thumb in distinguishing between property and concepts: If you give something away and no longer have it, it is material; if you give it away and still have it, then it is information. As George Bernard Shaw said,

If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.

SOPA and intellectual property as property

The (American) National Review comments on the problems with policing the internet in relation to piracy. They rightly note the error of forcing internet companies to do their police work for them and (possibly) punishing them for failing to do so. (I do not know the wording of the act. We now have a similar act in New Zealand.)

We are in general skeptical of government efforts to foist off difficult tasks onto businesses and other private parties, who already are expected to act as tax collectors (especially of sales taxes), immigration inspectors, and more.

They are also sceptical of the determination of the authorities to deal with this problem given that they are not acting on similar abuses that are already illegal

Judging by the fact that pirated DVDs are openly for sale in practically every city of any consequence in these United States, we have our doubts about the police authorities’ seriousness in these matters.

Further they doubt it will be effective

the worst offenders would of course have no incentive to do so, their guilt being plain and undeniable. Instead, the full-time pirates would have a very strong incentive to simply switch to another website, or to a proliferation of websites, or to deploy any number of commonly available technological solutions to defeat government attempts to block them.

I concur with their concerns here. I also find the modern practice of punishing the innocent to decrease the possibility of crime less than satisfactory. Frequently such laws do little to address the law-breakers yet are onerous on the law-abiding. Moderns combine this with an unwillingness to give adequate punishment for crime. Straitjacket all men to prevent crime but minimise the guilt of those who still pursue it.

The problem with the article is that they diminish the real issue which is associating property with intellectual property

All conservatives believe in protecting property rights, and most conservatives support the protection of copyright as an extension of that principle.

This assumes that property is analogous to intellectual property.

We favor an Internet that is largely free of regulation and taxes; we also favor observing the Eighth Commandment.

While there are a few crusaders against the very idea of intellectual property, there are few questions of principle at stake here, most reasonable people having long ago made up their minds about property rights (generally for) and censorship (generally against).

Unfortunately they miss that this is precisely the debate we need to have.

Property is material. A shovel is an object that exists in space and time. So is a car, and a table. Intellectual property is not material, it is information. Whether we consider copyright for written work; or patents for processes, machines and molecular shapes; we are not dealing with an object fixed in space and time. Thus the claim that these things actually are property, albeit intellectual property is incorrect. Now one may argue that such things should be safe-guarded for various reasons, but we need to establish these reasons. Asserting an analogy to property is not enough. Is the analogy valid? A smile is more similar to the words of a book than the paper is, yet no-one thinks that smiles should be subject to copyright laws.

The extension of property rights to intellectual property rights is not obvious regardless of the number of conservatives (or liberals) who subscribe to it. The terms may share the word "property" but that does not prevent the latter being a misnomer.

To discuss intellectual property one must grasp this distinction. Failure to understand the distinction renders one's opinion of little value, not because his opinions do not matter in general, but because he doesn't have the intellectual concepts needed to address the issue. It is similar to discussing causing death without reference to intent: if you don't understand that there is a difference between murder, self-defence, and manslaughter, how can you address such things?

Douglas Wilson on: Why the KJV?

Douglas Wilson favours the King James Version (KJV) of the Bible. In this video he gives his 3 reasons. They are

1. Textual basis
2. Translation philosophy
3. Church ownership of the version, both translation and copyright.

The KJV uses the the received text. I favour an eclectic text such as used by NIV and ESV. The translation philosophy of the KJV is one of formal translation. ESV and NASB use this philosophy, NIV is more dynamic. I am with Wilson here.

His last point, which is his most important, is that The KJV is product of the church and is owned by the church, or rather in the public domain. Modern versions are products of academia and corporations, and the corporations may be secular using the profits for themselves. I don't see this as a complaint against corporations or profits, rather secular groups profiting from God's word. He would rather church groups feeding any profit back into church work.

Wilson would happily use a more modern version that met these requirements, and he suggests that he would prefer it.

I think there are options that would solve reason 3, but not necessarily all 3 reasons.

Firstly I am not certain that KJV gets around issue 3. Much of KJV came from Tyndale, but the translators were probably the academics of the day. I fail to see how many of the KJV translators differ from modern academics who produce Bible versions. Many of the modern academics are Christians who are committed to the church. And translation committees often use a variety of translators to minimise potential sectarian bias. The chosen translation philosophy of a particular version is likely to lead to greater differences than the fact that translators are tied to academia. As to ownership, I understand that the initial publishers had copyright in perpetuity after the KJV was produced, though this is irrelevant outside the United Kingdom now and probably of little consequence within. The KJV mainly gets around the ownership issue now by virtue of being in the public domain. I am not certain how the KJV profits were used prior to this, but modern versions do use money to offset Bible costs in the developing world.

The biggest problem facing Wilson is finding a modern version prioritising the received text. Most that do will probably be variants of the KJV. Modern versions of the KJV include: KJV 20th Twentieth Century, New KJV, Modern KJV, American KJV, KJV 2000, Updated KJV, New Cambridge Paragraph Bible, Authorized Version Update. Many of these are copyrighted and produced by a single editor.

So it would seem that Wilson's only real option is to arrange for the production of a modern version of the KJV either copyrighted by the church, or released into tho public domain.

I do wonder if the World English Bible (WEB) is a consideration? It is public domain. It follows formal equivalence. The WEB is a modified American Standard Version (ASV) which uses an eclectic text; but the WEB is also based on the majority text which has significant similarities to the received text of the KJV.