Friday, July 11, 2014


US patent law changed for the worse with the Leahy-Smith "America Invents Act" (September 16, 2011) which became effective March 13, 2013. America went from "first to invent" to "first to file."  Bad as that will be, it is not the only problem with US intellectual property law, which never had a correct and consistent philosophical foundation.

Despite myths to the contrary,  Alexander Graham Bell did not race Elisha Gray to the Patent Office to win by an hour.  In 1876 (and until the AIA of 2011), the Patent and Trademark Office awarded the patent to the first to invent.  Also, back then a working model was not required. (That had been changed in 1870.)  A working prototype or demonstration model is helpful, but not necessary. Even before the AIA of 2011, the USPTO granted patents to software. The first was awarded on April 28, 1968, to Marty Goetz for a sorting algorithm.  (See the Computerworld story here.)

The essential difficulty is that mathematical ideas are not patentable. The law assumes that mathematics exists to be discovered: no one invents it.   An element of the original patent to Goetz was that software could be built in (burned in; programmed in) to a solid state integrated circuit ("chip"). So, it would be an essential contradiction to claim that the arrangements of gates on on integrated circuit is not patentable.

If you have an idea for a new kind of door latch, you can draw out the design and be awarded a patent. You can take that engineering drawing ("blueprint") to a machinist who will make one, even to your specifications for materials and colors.  The engineering drawing is acceptable as evidence of a new invention.  

Now consider these:

 "The Klein Bottle as an Eggbeater" by Richard L. W. Brown

Mathematics Magazine, Vol. 46, No. 5 (Nov., 1973), pp. 244-250 

Brown, ibid.

What those describe is a Klein Bottle, one of these:

Earrings and more for sale

at Klein Bottle Dot Com
Fallopian Klein Bottle
It is real, but it does call to
"And He Built a Crooked House"
by Robert Heinlein, about a tesseract, though.
The Klein Bottle was a mathematical idea, a demonstration in topology, which, by the assumptions of US Patent Law, existed for Euclid and Pythagoras, even existed from the Creation for anyone to discover, and no one to invent.  But clearly, no such thing existed until it was conceptualized, defined, described, and ultimately built.  So, should the Klein Bottle (and Moebius Strip) be patentable or not?

The physical Klein Bottle or Moebius Strip is not mathematically different from other descriptions as equations or maps. Consider the famous Pythagorean Theorem.  A drawing from a Euclidean geometry book is no more or less real than an algebraic statement from Cartesian geometry. The ancient Egyptians knew that if you make a triangle out of rope - 3 cubits 4 cubits 5 cubits - you will have a right angle, which will enable you to redraw your property lines after the Nile recedes.  Thus, a knotted rope 3-4-5 would be a "patentable device" when in fact, it is only a restatement of a mathematical theorem. 

Now, we protect that kind of invention (or discovery) through copyright.  The US joined most of the rest of the world in 1989 when one of President Reagan's final acts was signing the law joining the Berne Convention.  The author automatically owns the copyright. You do not need to file for  copyright in the United States.  (It is still recommended by the Copyright Office, of course.)  Perhaps even stronger is first publication.  Publication of an original idea in a peer-reviewed academic journal established your claim to precedence.  Today, when academic researchers are charged with fraud, perhaps the most common crime is to simply search and sort for articles in obscure journals, and put your name on one, and send it to another obscure journal, and claim the publication in your curriculum vitae. The serious crime is academic fraud, not copyright violation - though that does remain.

Analogous rights are attached to fashion trademarks.  You can steal Donna Karan's designs; do not attempt to copy the DKNY label.  (See Johanna Blakely's famous TED Talk on innovation and intellectual property in the fashion industry.)  

The reason for these knots - knots are also a serious problem set in topology - is that we have no objective basis for understanding and instantiating intellectual property.  Our ideas on property are rooted in medieval laws about land. Two people cannot stand in the same place at the same time.  Land cannot be replicated. Anything that is non-rival and non-exclusive is considered a "public good". A beautiful sunset - or even a murky one - is an example. That simply will not do.  Granting a government monopoly was the best idea from the Middle Ages. The city of Venice had the first intellectual property patent laws in 1474. Several of our American colonies began as "patents" from the Crown.  We never got beyond that.  

Make Your Own Paper Klein Bottle
I have been arguing these problems with an Objectivist comrade, patent attorney Dale Halling, on the Galt's Gulch Online discussion board of the Atlas Shrugged movie producers.  His claims here (actually posted by his wife): The Myth that Patents are Monopolies.  My reply here: Patents Redux Again

Halling asserts John Locke's theory that property is that with which you mix your labor.  My response is that breaking into my house requires work but does not grant title to my property.  On the contrary, digging a hole and filling it up is hard work which creates no property.  Halling claims that a mathematical algorithm is not objective, not repeatable, and has no material existence.  Software, he says, meets all of those criteria: software is real. However, the Klein Bottle and Moebius Strip prove that mathematical expressions are substantial. 

In fact, even more than Marty Goetz's sorting algorithm, the RSA Cryptosystem is a perfect example of a mathematical idea, instantiated as a computer program, which has very real value.  The mathematics of the totient function came from Leonard Euler.  Supposedly, it existed for Pythagoras, Euclid, and God.  But it took three geniuses from MIT to make it real. The problem is that Phil Zimmerman thought that everyone should have one.  So, he took the same mathematics from Euler and wrote it up as a new computer program and distributed his "PGP:Pretty Good Privacy" for free. (Read one of very many stories here.)

That hit another legal barrier: the US government considers cryptography to be a weapon of war; you are not allowed to export it without a license; but the Internet is global, as the communist gerontocracy of People's Republic of China is constantly reminded.  Once you put something online, it goes everywhere.
==> "How Amazon Got a Patent on White Background Photography" from Ars Technica here
That is not the first time that mathematics was sequestered.  In the 18th century, Gaspard Monge's Descriptive Geometry was declared a military secret. Those examples clearly deny the USPTO's claim that mathematics exists for everyone to discover and no one to invent. 

U.S. patent law does not allow independent discovery.  For that, Newton and Leibniz, Bell and Gray, and Srinivasa Ramanujan simply do not exist.  Well, they do exist, but they have no right to their discoveries and inventions.  According to Halling (and Ayn Rand) that is objective justice.  I must demur.  But I do not know how to solve the problem.  Is it true that simply copying that which exists because someone else created it is the labor of a burglar? Is the problem the easy word "simply"? Is copying really hard enough that it qualifies as new labor?  Does anyone really slavishly copy with no input of originality?  

In his Constitution of Government for Galt's Gulch, (reviewed here on NecessaryFacts) jurist Wolf Devoon looks to equity and common law for justice. He expects that in any suit, either or both parties will make novel claims, otherwise the matter would not have come to court.  Perhaps like entrepreneurship, justice is ineffable: it must be learned, because it cannot be taught.  To best serve a commercial society, a truly bourgeois culture of production and trade, the best courts would be successful marketers of justice.  The suggestion is not original with me.

Errol Flynn as Robin Hood
action figure created by
I believe that we do need intellectual property recognized by law. If the moral case were not enough, the practical consequences are irrefutable.  The classic argument comes from The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else by Hernando De Soto. Bright ideas that benefit a home, farm, or village burn out for lack of capital to fuel them because the poor have no property rights. That is why they are poor. The consequences are manifold (another mathematical concept). The government's own electrical power utility cannot borrow capital to maintain or expand because the poor steal electricity. It is not the mere tapping of current, but the fact that the users have no legal addresses.  Here in America your home will be a good asset for your power company for the next 30 years no matter who lives there because your home address has legal reality. You have a right to the property; when you buy power, you lease that value. 

That said, I seek to avoid reversing cause and effect, the post hoc ergo propter hoc fallacy. President Obama, Senator Elizabeth Warren, and others of the "you did not build that" gang claim that entrepreneurs use public roads and other public infrastructure which we the people provided.  Of course, those entrepreneurs also paid up front long before they went into business.

However, the salient point - as any Austrian economist will prove for you - is that each mile of pavement made us all poorer.  It is a testament to entrepreneurship not that they made good use of the highways, but that they succeeded at all despite the desertification of the economy by public works.  The "benefit" of public works are a "broken window" fallacy.

It may be a similar fallacy to claim that our IP laws brought prosperity.  They may only be to jurisprudence what public roads are to transportation.  It may be true that having patents and IP law are important to prosperity.  It may be more important that we have the right laws, not just something left over from the Middle Ages.


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