Let's play "spot the idiot".

I think they're just overstating their case a little, but it's still a valid point. Very few companies would be willing to spend gazillions on R&D if their competitors could reverse engineer their new technologies and have cheap clones on the market in a couple of months. The lead time is not enough to justify the R&D expense. Quite often, though, engineering companies deliberately don't patent their technology, relying on secrecy rather than litigation. This works well for chemical processes and such where it is very difficult to prove infringement.

Copyright and patenting are both very good ideas that have been taken to such extremes that they have ended up exacerbating the very problems they were created to solve. The original idea was to stimulate creativity and innovation by ensuring that it would be fairly lucrative. At present, it is stifling innovation and creativity because copyright periods are far too long and patents are far too easy to obtain.

Not that I've said anything you don't already know. I think you're just reacting to the absolutes in the argument rather than the sentiment behind it. Your analogy breaks down, however, when you look at the cost of writing a blog compared to the cost of developing a new processor core. Many people (myself included) write on a small scale because we enjoy it. Getting paid would be a nice bonus. Developing a product for the purpose of making a return on your invested time and money leaves you in a different situation where removing the patent system entirely could reduce your revenue stream to less than your R&D costs. Removing patents wouldn't kill innovation completely. It would, however, substantially reduce the amount of industrial R&D.

> Very few companies would be willing to spend gazillions on R&D if their
> competitors could reverse engineer their new technologies and have cheap
> clones on the market in a couple of months.

This is standard operating procedure today:
http://www.chipworks.com/news/2005_Taiwan.asp

The life cycle of most electronic products is short enough that by the time a lawsuit can even be filed, it's all moot. In taiwan and china and such it's common practice to set up a shell corporation that lasts a year at most: cranking out an inventory of product, pushing it into the distribution channels, and then folding. By the time anybody can even gather evidence, there's nobody left to sue. (What, sue the distributors? Customers? Horrible PR and no money to be gained.) And where do we get all the cheap plastic crap sold at Wal-mart? China and taiwan, of course...

> Removing patents wouldn't kill innovation completely. It would, however,
> substantially reduce the amount of industrial R&D.

Industrial R&D is almost entirely focused on sustaining technologies, not disruptive ones. (More so since The Innovator's Dilemma came out. RIP Bell Labs and Xerox Parc...)

There are exceptions, like drug companies. (Remember: therapy never accomplishes anything, you need a prescribable pill.) But in the semiconductor and software industries you simply aren't describing reality. Heck, name the last great automotive patent that gave one car company a significant advantage over another. At the corporate level they're a neusance, not a major impediment.

Patents help if there are a small number of suppliers or a small number of customers, but in a market with ten thousand independent sellers and a hundred million independent customers interacting through thousands of separate distribution channels... Not so much.

You mention the cost of developing a new processor core, which is _dwarfed_ by the investment in the fabrication facility. On the design side, a start-up like Transmeta is easy to do; there are even open source projects playing with FPGAs. But the reason there aren't 10,000 independent processor companies is that Moore's Law is primarily about manufacturing technology shrinking die sizes, and the processor designs are racing to keep up. Sure you can come up with a design, but if you can't put it on a state of the art wafer who cares? A superior design at a 3 year old die size will lose on performance, power consumption, cost, and any other interesting metric. Sure design is important, but it's not the limiting factor. The real arms race here is fabs, not designs.

Rob

The logical fallacy you point out cuts both ways. It sounds almost like you're saying "no protection of intellectual property is necessary for innovation to thrive." I'm pretty sure, as Jerith points out, that some protections ARE necessary, and that the Open Source model, while obviously a valid approach, is not the be-all, end-all of innovative design.

Okay, you admit this with regard to drug companies. Maybe you're JUST talking about software, or computer design.

As a creator of an intellectual property, I know just how valuable it is to be able to do nothing BUT this particular work full-time. When I was a "hobby-level" cartoonist, my art was not as good, my writing was not as tight, and the overall product didn't hang together as well. The suggestion that amateurs can do things just as well as the professionals can (which I hear over and over and over in the webcomic world, in the SF publishing world, and especially at Cons) is not borne up by the body of work being produced by the amateurs.

The ONE exception of note appears to be Op-ed pieces and specialty news reporting. The Blogosphere is poking holes in the Mainstream Media left and right - probably because of stagnation in the MSM's ranks, rather than because of any inherent superiority in hobbyist work.

The ONE exception of note appears to be Op-ed pieces and specialty news reporting. The Blogosphere is poking holes in the Mainstream Media left and right - probably because of stagnation in the MSM's ranks, rather than because of any inherent superiority in hobbyist work.

It seems to me mainly that the way the blogosphere is poking holes in the mainstream media, is a distinct lack of investigative journalism, or even a bare minimum of research.

All too often I've seen news reports that someone took from the Associated Press, reworded it, and slapped their name on it.

And we know how well we regard the Associated Press.

Just talking to various Journalism students, and the reporters at the Daily Texan here at UT, it seems to me reporters now are more valued for 'sensationalism', and not actually including necessary facts and intricate details.

Besides, all people need is the headlines that stream across CSS Headline News for their news, right?

I'm saying that patents are well on their way to utterly useless. I didn't address copyrights, trademarks, trade secrets, or contract law.

Keep in mind patents were never about promoting innovation, they were about _disclosure_. You got a temporary monopoly on an idea in exchange for _documenting_ it so others could follow in your footsteps upon the patent's expiration. They were a response to overuse of trade secrets that had the nasty habit of people taking knowledge with them to the grave. 200 years ago, it was much harder to reverse engineer stuff than it is today.

These days, nobody ever really learns how to do anything by reading a patent. Most patent applications are too vague to implement anyway (because the vaguer thay can be the broader they are). In fact, with treble damages for knowing infringement, reading patents just opens you to legal liability.

There used to be a requirement that patents had to be implementable in order to be patentable. (You had to be able to reduce it to practice.) The patent system started imploding about the time that requirement went away...

> As a creator of an intellectual property, I know just how valuable it is to be
> able to do nothing BUT this particular work full-time. When I was a "hobby-level"
> cartoonist, my art was not as good, my writing was not as tight, and the overall
> product didn't hang together as well. The suggestion that amateurs can do things
> just as well as the professionals can (which I hear over and over and over in the
> webcomic world, in the SF publishing world, and especially at Cons) is not borne
> up by the body of work being produced by the amateurs.

People who really love what they do tend to want to devote as much time to it as possible. (For example, I'm a programmer who happens to want to work in that field because I love it, not because there's consistently money in it.)

If you're saying there should be a mechanism by which the driven individuals can devote all their time to what they love and make a living doing so, I agree. This is pretty much what the original 20 year term of copyright was for. (Copyright that lasts life plus a century, however, is silly. I'm not paying rent to the grandchildren of the architect who designed my condo, nor should I be. Dickens outlived his copyrights, but didn't stop writing. The fact J.R.R. tolkein's grandson got to sue the british government for naming one of its ships "shadowfax" is sad, and what Frank Herbert's son is doing to his corpse is a crime, although to be honest I'm told Herbert did a lot of that as time went on anyway...)

Rob

I didn't address copyrights, trademarks, trade secrets, or contract law.

And that, I think, is the important thing to note about your argument. You're not arguing against IP or IP protection, you're arguing against patents in particular, and perhaps only software patents. Personally, I have thought for a long time that software patents are useless for the reason you said (i.e., the protection lasts long after the "invention" itself has become obsolete) and think that the length of time copyright protection applies to software should be drastically shortened, for the same reason.

The distinction I think the author of the Groklaw essay you're critiquing was feebly groping toward is the difference between invention and production. You're right; people who have an inventive turn of mind will always invent things. I thought that the point of patent protection is not so much to encourage invention as to make it possible for someone (often, but not necessarily, the original inventor) to profit from taking the invention from prototype into production, so that the general public gets the benefit of having the invention.

And even people who love to invent will do much less of it if they have to spend most of their time working at some other job to pay the bills instead of making more inventions. :-)

Yes, there needs to be a happy medium. The trouble is, anyone who preaches a reasonable solution gets run over by the real extremist fanatics from both ends. Which is why Rob has to sound a little like a fanatic himself, arguing out at the far edge of his own arguments - it's defensive fanatacism, just like all those defensive patents. It's a vicious cycle. It's also, I think, somehow related to Gresham's Law. Bad arguments drive out good. We all wind up racing to the bottom.

Um, I'm rambling, aren't I?

oh. Fanaticism.

I don't think it's so much that "bad arguments" drive out good ones. It's closer to the truth, I think, that LOUD arguments drive out good ones. (Of course, most bad arguments are pressed very loudly, so maybe that's a distinction without a difference). :-)