[ExI] Problem with Pattents

Kevin Freels kevin at kevinfreels.com
Fri Feb 22 20:31:08 UTC 2008

I don't recall exactly who said it earlier, but there was mention of the 
"obvious" nature of certain inventions. I agree it would make a lot of 
sense to exclude things that are both obvious, and that require very 
little real ingenuity. Also, I think a patent should not be issued until 
the research and development has been done to actually manufacture the 
product. The "patent pending" process is sufficient for that and should 
only be valid to protect the company while they are investing in the 
manufacture of the product. Once products are brought to market, patent 
terms relative to the R&D investment would make a lot of sense. Of 
course how you quantify this and keep these guidelines from being 
entirely arbitrary would have to be worked out.

On IP it becomes a bit different since the investment is minimal, the 
risk of no return is high and the cost to recreate it from scratch is 
about the same as the cost to the original creator. Some different 
categories come to mind but they all have similarities.

1.) Photography: I owned a photography business for several years so 
understand this one the most. The idea is that I take a camera out and 
through my experience and training I create a unique piece of work that 
I "own" the rights to. So no one can reproduce it without my permission. 
I can decide to give permission if someone pays me what I think it is 

Of course there is nothing stopping someone from going to the exact same 
spot with the same equipment and recreating the same scene since I don't 
own the scene itself, just the image on the media used to store it. So 
the cost for someone else to recreate the scene is about the same as the 
cost to me. So the value to a buyer is only a matter of convenience. It 
is EASIER to pay me for my work than to recreate it or obtain an 
otherwise sufficient similar image from someone else.

Since it is becoming easier to do such a thing, the overall value is 
dropping in photographic images. The market has not yet figured this 
out. Take school photos for example. My kids come home with an 8x10 and 
I am told that if I want a copy of it, I must pay $15.00. This is 
outrageous. I can take better photos and print them on my computer for 
50 cents. So I pack them up and send them back. No doubt many people 
scan them and print them. I don't simply out of respect for the 
photographer, but I am sure it happens a lot. The company of course 
knows this which is why they charge so much for those who do choose to 
buy them. What they don't realize is that if they simply sold them for 
$5.00 I would have gladly bought them because it was EASIER.

2.) The same is true with paintings. In the past, the only way to have a 
good quality rendition of something was to hire a painter. Photography 
devalued the price of paintings. But at the same time, the best of the 
painters still commanded high payments for their work despite the 
cheaper and more accurate reproductions made by cameras.

And the ability to photograph a painting and make prints has devalued it 
even further. Only a select few with lots of money are willing to pay 
top dollar for a painting.

Notice that copyright laws don't really apply to this. Laws are only 
useful if they can be enforced and in this case, the laws are useless.

3.) Music. Again it has lost value because it has become easier to 
reproduce. The music and movie industries are still in denial. DRM for 
example doesn't really help. It's difficult to deal with so I only by 
DRM free music. I am willing to pay money for convenience and good music 
but I won't buy music when the price is inconvenience+ money. The key to 
keeping me paying has nothing to do with IP rights. It's about it being 
easier to go to amazon.com and download a song to my library than it is 
to copy it from a friend. The price of 89 cents with no DRM is worth it 
to me for most songs. No song is worth the trouble of DRM. I have to ask 
again, do IP rights even weigh into my purchasing decisions? There are 
often tribute bands that can recreate the songs in a similar fashion and 
are even occasionally better. Here one must ask if the writer "owns" the 
"instructions" for the performance or the recorded performance 
itself.....Here again, convenience and the ability to reproduce are key 
to buying decisions.

4.) Movies: Just about the same as music but much more expensive to 
produce initially. I can see much more justification here, but as VR 
gets better I expect the cost of movie productions to come down 
dramatically at which point we're about the same place as music. Still, 
no matter the technology, it would cost another studio roughly the same 
to create a similar rendition of another film. Again, does the writer 
own the "story" or just the "script"?

5.) Literature: A lot of time and effort go into producing a good piece 
of work, but what is to keep someone from coming behind that person and 
writing something nearly identical - but not quite? Here again, the 
investment is minimal and the ability to recreate a similar story would 
require similar investment.

In all of these, I think IP rights are pretty much useless. Their only 
purpose is to increase the cost of obtaining specific material. If it 
increases the cost of an original work, it decreases the demand.

Computer software is a mixture of both. Some things require a 
significant investment while others are simple pieces of art easily 
replicated. Still others are "obvious" improvements. The only way to 
properly categorize such things would be to set an arbitrary investment 
threshold that says that if X dollars are spent in R&D on a product then 
it is protected for N years. How such a thing would fit into existing 
laws and the details are beyond me.

Stefano Vaj wrote:
> On Fri, Feb 22, 2008 at 4:26 PM,  <ablainey at aol.com> wrote:
>>  I can't see how introducing a barrier or set of hoops can accelerate it. If
>> you mean that two inventors working on the same problem rush in order to
>> beat each other to the clerks office, then this would be no different from
>> them rushing to market. Only they would have extra work in order to secure a
>> patent before going to market. This can take a long time, time which could
>> increase as more inventions are registered and need to be checked against
>> any new inventions.
>>  I would be interested if you have any links to support patents speeding
>> innovation. And I agree that IP systems cannot be reduced with just a quick
>> bit of banter. If they could, I wouldn't have posted.
> Any manual of IP law would serve the purpose. The theory behind the
> patent system is that, very roughly:
> - it provides an incentive not to opt for the alternative and more
> traditional protection offered by industrial secrets, when the latter
> is an option, that may in turn end up in monopolies of undetermined
> duration or loss of technologies, and prevent them from becoming part
> of the state of the art after a predetermined period;
> - it compensates for the higher marginal costs of the developer, which
> in a perfectly efficient market would never be otherwise recoverable,
> thus effectively preventing the economic sustainability of any R&D
> investment.
> Of course, all that comes at a cost for the society. It remains to be
> seen whether the cost is higher than the utility. I suspect the latter
> to be the case for pure software patents, for instance. But we are
> discussing issues that can be *measured*, at least to an extent, so
> personal hunches are not so relevant.
> Stefano Vaj
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