The Generalist

Against Patents

A few years ago I wrote a letter to the editor of Bioscience Hypotheses, a journal in which, shortly before, I had published an article speculating on the cause of Bee Colony Collapse. One of the reasons I chose that forum for my editorial was that it seemed to me (and it still does) that the scientist has become almost entirely isolated from a priori or deductive reasoning. He is stuck in what I like to call the Proximate Box or the world of empirical or inductive reasoning, and he is unaware that the entire basis for the validity of science lies outside of it. That and the editor of the magazine gave me an excellent editorial to respond to.

Unfortunately, Bioscience Hypotheses did not survive. Almost immediately upon submission I received a letter informing me that my editorial could not be published because the magazine was soon to be no more. The subject matter is good for discussion and debate and I wouldn’t mind seeing some arguments for the opposing view myself, so when I found Professor William Bains‘s article free online I realized I could simply publish my editorial in it’s entirety. So… here it is:

Dear Professor Bains,

I read with interest your recent article Who should benefit financially from a good idea? in Volume 2, Issue 3 of Bioscience Hypotheses. In your article you identify some problems with the patent system as it is and suggest ways to “bridge the gap” between the interests of industry and the free flow of ideas. The subject is clearly of great importance and there is no shortage of great minds grappling with it. May I suggest, however, that a complete understanding of the problems caused by patents requires an epistemological shift. This shift is not an easy one for most modern scientists to make because while they are well versed in the empirical or a posteriori scientific method, they are for the most part ignorant of the a priori sciences of ethics and politics, under which an understanding of patents would fall. Because of this I fully expect that my arguments will seem entirely foreign and radical to most readers. I only ask that they spend a little time working through the logic themselves before simply dismissing them.

I wish there was a way to “bridge the gap” as you would like to do. If such a thing were possible it would mean a lot less time and expense. But I am afraid that this is simply not possible and in the following paragraphs I will attempt to explain why.

There are two closely related a priori arguments against patents, one, that they are unlawful, and the other that they fail to increase (or in fact decrease) innovation. The first, that patents are unlawful, for most readers, will require some explanation.

The term Law, as it is used in common speech, is an equivocal term which means both law as it is legislated and law as it ought to be. In the following paragraphs, I will be using the term in the normative sense, law as it ought to be. Even in this sense, most people would be astonished to hear that patents could be unlawful. After all, isn’t it only fair that those who innovate reap the benefits of their innovation? Well, yes, of course. But what exactly are the benefits of an innovation and what exactly are patents meant to protect?

The right to life is the basic starting point for the ideal of Natural Law[1], the philosophical ideal upon which the United States is founded. On this view, life is the ultimate human value because without it no other human values are possible. Therefore, if a society is to be just, each man must have a right to his own life. From this follows the right to property in one’s person (i.e., your body belongs to you), and the right to sustain one’s life by one’s own hand, which implies the right to property in the fruits of one’s labor.

It would seem at first glance that patents are a form of protection for the right to property in the fruits of one’s labor – after all it’s you who labors to do the thinking. But are they? The first clue that they are not is revealed by the need to formulate a special law. If property as such is already protected, why would there need to be a special law over and above the one against theft? As you mentioned in your article, a patent assumes the right to an idea. But can an idea be property? In fact, “ownership” of an idea can be shown to be in contradiction with the right to property.

An idea exists in a sense very different from property. In so far as an idea leads to some truth it is available to be discovered by any mind actively seeking it. But more importantly, no idea when used as such by another person deprives an innovator of his own use of it. Therefore a patent seeks not to protect those who own property from losing it, but to prevent others from gaining property by creating it. The patent can be used in this way to force those wishing to use an idea to pay tribute to the patent holder. By this the patent seems to be a “right” to a profit or to financial gain for the holder. But such a “right” can never exist under Natural Law because it violates the right to property of those who must pay the tribute. An idea therefore is distinct from property and patents are therefore unlawful.

There are a number of reasons that people might not accept the above argument. For one, it seems unfair to the innovator. In truth, the innovator loses nothing by another’s use of his idea. However, the user of an idea gains by it and this is what seems unfair. The right to property however is a protection against loss, not a protection against another’s gain. In fact, the innovator himself stands only to gain when he makes an idea public to other minds[2] – with or without a patent. Only a patent requires a loss to someone. It is because we are so used to seeing one person’s gain as another’s loss – the zero sum game – that we are prone to this error.

But there is another reason. How, people will ask, will anyone ever invent or innovate anything new if he cannot be assured of profiting from his ideas? What prevents people from seeing the answer is the simple fact that they have always lived in a world where indirect exchange, i.e., money, is the norm. But, as you note in your article, this view confounds two distinct economic roles, that of the innovator and that of the entrepreneur. The innovator seeks to bring into existence something which did not exist prior. The entrepreneur seeks to profit from the difference between the costs of bringing an item to market and the revenue he can expect when he sells that item. In real life a single individual may play both roles, but they are nevertheless distinct roles conceptually. And that brings us to the second argument against patents – that they do not encourage innovation. This is because the innovator’s reward is never monetary. The man who seeks to build a better mousetrap is not seeking a monetary gain. His goal is not an intermediary but a primary. His reward is quite simply a world with a better mousetrap.

It is not surprising that most people cannot accept this simple reward as being enough. For years animal behaviorists attempted to train animals using a type of indirect exchange. They came to believe that animals simply were incapable of certain things. It wasn’t until researchers started to train animals using a form of direct exchange that they began to discover all of the possibilities hidden within animal intelligence. For example, when animal behaviorist Irene Pepperberg wanted to train African Grey Parrot Alex how to speak and understand English, she used a disarmingly simple technique. When Alex gave the correct response, Pepperberg did not reward him with food – an intermediary – she instead rewarded him with the item that he had named. Behaviorists were shocked at the results – that Alex did in fact learn to speak and understand English![3] And I submit to you that they would be just as shocked at what people can do.

That this idea escapes those of us who imagine that were it not for the monetary gain, no innovation would occur, is really amazing, given the most ubiquitous adage that “necessity is the mother of invention.” And it is. But, as it is with animals, a secondary gain is actually stifling to innovation. Rewarding people with the undue power of monopoly invariably creates a class of individuals who seem to be attempting to solve problems but they aren’t really interested in the answer, i.e., a class of patent seekers. It will be in the interests of such a group to create guilds and peer-reviews that control, not only who can learn of and use ideas, but also who publishes, and who has access to funds. It is often in the interests of these monopolists not to fix a problem, but rather to control and maintain it in perpetuity! Cheaper or unpatentable remedies are overlooked, or worse, suppressed. I recently received an email from a woman bemoaning that medical science seeks only to manage disease – usually by more and more expensive means – and never to cure it. She’s absolutely right and the reason is patents.

In addition, as you pointed out, true innovations are rarely the work of one man alone – they proceed in stages. For those in need of an empirical example, the case of the steam engine makes evident the hindrances to innovation caused by patents.[4] It’s important to note, however, that empirical evidence, while sometimes compelling can be illusory. The problem with the empirical in this case is that complex historical data is unrepeatable. While it may seem that we have made great advances under the patent system, we have no way of empirically testing what the rate of innovation would have been without patents. Thankfully, we can use a priori arguments to illuminate that for us.

Many people are so used to the system of copyrights[5] and patents that it is nearly impossible for them to imagine any other way. They will want to know who will fund the innovation (and its realization) –  the answer is the people who desire such an innovation to exist of course. A man with cancer wants a cure, not a monetary gain! He wants a cure, not an expensive means of “managing” his disease. He, and the millions like him, will have no problem funding the realization of an idea which promises a cure. It’s important to realize that this is an entirely different goal from that of the patent holder! Yes, these ideas require a sea change in the way people think about problem solving – it requires that people once again view themselves as personally responsible. But the backwards incentives created by the existence of patents is part of the reason for that loss of personal responsibility in the first place. Patents place the emphasis not on the benefits of the results of innovation but upon benefits of a monopoly. These problems will never go away until patents are abolished. While such a drastic change seems impossible, it is important for people to recognize that this is in fact the goal. Attempts to work around the problems caused by patents with more laws will lead only to a continual evolution of more and more complex laws until the system grinds to a complete halt and a revolution occurs.

In truth there is only one way to defeat the patent system and that is to speak out against it. This does not mean martyring oneself. Of course we must all work as well as we can within the system as long as it is not within our power to change it. Nevertheless, we should endeavor to change it if only by educating ourselves and others whenever we can. Until a critical mass understands why the patent system is detrimental to innovation, nothing can really be accomplished to change it.

That said, there are individuals who intuitively understand if not explicitly. They are the ones who have created scientific and medical journals that are free and accessible, not just to doctors and scientists within institutions, but to everyone, where ideas are freely exchanged and debated. Unfortunately, there is no way to “bridge the gap”. Catering to the monopolist will not fix the problems he causes. Only knowledge will.

Notes:

[1] It is important to note here that Natural Law is NOT a list of rules or commandments. “Thou shall not kill” is a rule, while Natural Law is a body of thought which is the result of deductive reasoning. The problem with rules is that they always have exceptions. When individuals are not aware of the reasoning that led to a rule, they cannot reconstruct such reasoning in order to expose the exceptions and they become blind followers who are easily manipulated and controlled. There is a clear exception to the rule “Thou shall not kill” and that exception is plainly exposed in the corollary of the right to life – the right to defend it. [Blog readers, see my article Why Rights Are Inalienable for further analysis of Natural Rights.]

[2] The right to property includes within it the right to dispose of that property – e.g., the right to give it to someone else – hence human beings peacefully engage in trade. It can be said then, that by making an idea public, a man has “disposed” of it. The patent holder, however, wishes to have his cake and eat it too in the sense that he wishes to give away an idea while at the same time being the sole controller of it.

[3] Pepperberg I. Cognitive and communicative abilities of Grey parrots. Applied Animal Behaviour Science 2006; 100(1-2): 77-86 (doi:10.1016/j.applanim.2006.04.005) [Blog readers: Those interested in Dr. Irene Pepperberg’s work with Alex might be interested in the following books: For the layman: Alex & Me By Irene Pepperberg; for the scientist: The Alex Studies: Cognitive and Communicative Abilities of Grey Parrots By Irene Pepperberg]

[4] Boldrin M, Levine D, Nuvolari A. Do Patents Encourage Innovation? The Case of the Steam Engine. The Freeman: Ideas on Liberty. December 2008; 14-17

[5] Copyrights operate in a very similar fashion to patents and have some of the same problems. They are, however, less of a hindrance to innovation because they are very specific – they do not protect ideas but particular arrangements of words, notes, or images. In a sense, they are really only a rather improper extension the law against fraud – e.g., the use of someone’s work without proper attribution (plagiarism), or use of someone’s work in such a way as to suggest they endorse something which they do not. I believe it is in recognition of this truth that so many internet users have come to create their own form of copyrights – the Creative Commons Attribution-Share Alike agreement for example.

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