Resolving the IP Mess

Monsanto is taking it's belligerence to the US Supreme Court, but is, like all bullies, playing the good boy before the authorities.

Well, the judges are not fooled. They are asking the right questions, starting with the big one --

If the patented seeds could be resold by anyone, how would Monsanto recoup its losses?
Why is this the big question? Not because it's the only right question, but because it's the question that all the belligerents in the patent wars have been rallying under. So it's the one they want to get out of the way as soon as possible.

And so we see that, even though the question was not answered, the justices relatively quickly move on to more important questions, like, what does the law say?

Well, since the belligerents think it's so important, let's see if I can propose an answer to that question.

First, we have to understand why it's not the most important question.

First, some background on patents.

The Constitution does not, any where in it, guarantee that a successful patent should grant a monopoly of any sort. In fact, it only mentions monopolies (and patents) indirectly:

  1. No titles of nobility.
  2. Securing to authors and inventors exclusive rights to what they invented (but not more), for a limited time.

Why do I point at titles of nobility?

Under the royalty/nobility systems, patents were one of the primary tools the government used to fund the whole mess. Without funding, no power for the nobility. With enough funding, the nobility could do what they want.

In fact, it would not be an overstatement to assert that a permanent patent would be tantamount to a grant of a title of nobility. Even a patent that lasted more than half the average lifetime would be too close to a title of nobility.


Well and good. Copyrights lasted longer for two reasons.

One, the Bill of Rights guarantee of free speech was supposed to be an effective counter to the worst abuses. Not so much of a counter now, with the advent of the Berne Convention. Many countries that participate in the Berne Convention have no Bill of Rights, no guarantees of free speech. And the Berne Convention also brought the excessively long copyright terms, as well.

Two, globalization was not part of the context in which the copyright law was established. At the time, substantial similarity was easily assumed coincidental, without strong evidence of borrowing. With globalization in the context, it's far easier to argue the opposite, that substantial similarity is implicit evidence of plagiarism.

Not that plagiarism should ever be argued in court.

Copyright was not supposed to prevent independent creativity, whereas patent was, to a limited extent, supposed to temporarily allow the earlier inventor to exercise some control over later, substantially similar inventions.

The purpose with patents, and the publishing thereof, was to get people to work together on inventions, not play pro football with them.

That's what the difference was supposed to be.)

Monopoly implies strong, quasi-governmental regulatory powers. That's what the nobility was all about, dividing the responsibilities of government so that king was not burdened with absolute monarchy authority over every corner of the kingdom.

The US Constitution, instead, limits the responsibility of the government, so that individual responsibility can take the fore. That's what this concept of freedom is all about.

To avoid regional responsibility being too much of a burden on the central government, the states were supposed to carry much of the burden that the government claimed. Most of the burden, really.

Again, this was to avoid the problems which occur when the central government tries to carry the local burdens.

Monopolies are a breach of this separation, undermining the safeguards that were intended. This is why even using the word monopoly as a metaphor to describe what the patent (or copyright) provides is dead wrong.

Much though I would like to bang a few of the heads of industry together and shove their noses into the mess that they have made, swaggering around, brandishing their so-called intellectual property, bragging about how they will get away with more than the railroad monopolies ever did -- push their noses into it until they gag on their own mess and agree that they did wrong. But that is not the way democracies are supposed to mend themselves.

Tea parties and other revolutionary steps are to be avoided because even worse laws tend to get written in the excitement of trying to fix the mess.

On the other hand, it sure seems like we have painted ourselves into a corner.

But the paint is semantic. Two of the fresh, un-dried colors are "intellectual property" and "temporary monopoly".

No, the first step is for the Supreme Court to include, in an important opinion like this one, some statement to the effect that terms like "intellectual property" and "temporary monopoly" have no place in US patent and copyright law. They are new inventions, have nothing to do with current law, and are the wrong colors for this picture.

The second step is to strip the conversation of talk about money. None of this is about money.

It's about power.

If you need a specific example, it's about Bill Gates, at the turn of the millennium, crying and sobbing on his company's website about how all the court activity was keeping his dear, beloved corporation from innovating, and how Microsoft was for some reason supposed to be blessed with the privilege of innovating at the expense of all the rest of us who wanted to really produce things that were really new and useful.

Fast forward to the present. Google is a prominent exception to the general trend that big corporations follow down the same track as Microsoft, but we won't be surprised if they go south, too. Big companies always have done this.

Get money out of the equation. Talk about the real motivations behind all this maneuvering. Every CEO wants to own his industry, and that is all this is about.

The third step is to point out that the US government has less responsibility for the welfare of corporations than it does for individual citizens. If a corporation can't handle the heat of competition, let it die. Let others take its place.

In a free market where individuals with needs are allowed to go where they can to get those needs take care of, whatever purpose the dying corporations used to serve will be picked up by some other group.

If Monsanto really needs so badly to be supported by new patent law, let it go to Congress. It's fairly clear that the current law in no way supports their claim for a need to regulate natural genetic activities.

Besides, they don't need money, as near as can be told publicly. If the public impression that they are rolling in dough is wrong, let them make their books public. Then they can run around with their hat in their hand like the rest of us who need money for research and innovation. They have no more natural right to be specially supported innovators than Microsoft.

The only time the government should interfere is when one corporation is deliberately abusing its size and position to put other corporations and individuals at a disadvantage.

But, frankly, that would be Monsanto, the plaintiff in this case.

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