Shayne Wissler
Imagine a world where we figured out the right direction to push, and then we pushed in that right direction…

An elegant argument against patents

August 21 2015

With the proviso that a person who does not follow reason can’t be defeated by it, here is an elegant argument against patents.

The argument consists of three parts:

  1. The burden of proof principle as it relates to the use of force;
  2. The ethical symmetry of government acts and individual acts;
  3. Synthesis and conclusion.

Note that this is not an argument against using legitimate means to protect inventions from being copied (and I think there are many); it is an argument that patents are not a legitimate means, that patents go beyond protection of the inventor’s property and trespass the rights of others. It is as if someone claims to own an entire continent (or the Earth) because he saw it first; arguing against this zaniness is not the same thing as arguing against ownership as such.

[link]1. Burden of Proof[link]

Suppose we come upon two individuals who seem to be at relative peace. Then, individual A physically attacks individual B. The prima facie case, then, is that person A is guilty of a crime.

We allow A to argue (presenting other evidence, if necessary) that B was actually the one who attacked first and that A’s act was really self-defense. But arguments are not equivalent to direct observation. We observe A hit B; we must understand an argument. Which is to say that arguments, to be admitted, require a proof. A, then, has the burden of proof in this situation.

This is an elementary point, and a consequence of Newton’s Rule IV.

[link]2. Ethical Symmetry of Government and Individuals[link]

Since the government is merely an aggregation of individuals, if something is per se criminal for an individual to do relative to another, then ceteris paribus, it is criminal for the government to do as well. Government can’t ethically confer extra privileges or rights; it either exercises already existing rights, or if it goes beyond these, then it commits crimes.

This too is an elementary point, closely related to Newton’s Rule IV.

[link]3. Synthesis and Conclusion[link]

Observe peaceful thinkers independently creating ideas[1], and then being attacked by government[2] at the behest of patent wielders. Specifically, the patent wielder (A) files a lawsuit demanding that an alleged patent violator (B) either pay royalties or cease and desist in using his own property, which A claims he owns. If B doesn’t comply, then A will have the government forcibly take the property, and if B resists, then B will be shot or jailed.

So on the one hand, we have the undisputed use of force by A and the government against B; and on the other, A’s petulant whining that he “thought of it first” (or some such). We observe no locus of interference with A by B – no time, place, or means by which B infringed upon A’s living action. But we do observe a locus of A’s interference with B – the threat on B’s person and property as embodied in the patent suit. I.e. the prima facie case is that the patent wielder and the government are criminals, and the only way to overcome this is to prove both that 1) B violated A’s patent, and 2) patents are a valid form of property. But, there have been no proofs that patents are anything more than a “mirage of reason”, a mere metaphor to legitimate property[3][4].

“Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”

— John Stuart Mill

Since reasonable people follow the evidence where it leads, and since all the evidence indicts the government and the patent wielder, no fence-sitting or suspense of judgment is possible. To suspend judgment in this case is exactly like suspending judgment in any case where a criminal has been successfully proven guilty beyond any reasonable doubt.

Therefore, the fence-sitter in the case of patents is akin to all the culpable bystanders of history, who with their cowardly silence, sanction the atrocities their society commits.

Patents are a direct assault on the very core of rights: the right for a person to think and act independently. In effect, patent legislation turns invention into a type of thought-crime, where the right to invent is usurped by a system that selectively grants permission to invent, and only to those who didn’t happen to invent something already registered with government bureaucrats. Contrary to the perverse confusions in the minds of those who confuse reason with metaphors, utilitarianism with ethics, or legal positivism with the proper base of jurisprudence (individual rights), patents are, very obviously, illegitimate.

  1. It is sufficient for refuting patents to only address the case of independent invention, for intrinsic to patents is the idea of owning an abstract and reinventable idea, and not merely a specific and personally unique embodiment that no one else could possibly accidentally create on his own. This is what makes patents (1) different in principle from copyrights; (2) obviously ethically unacceptable; and (3) non-objective (among other things: we can’t know who the actual first creator is, and we can’t know what standard should be used for something to be counted as “non-obvious” and therefore patentable).

  2. See “the principle of the hidden gun” in For Individual Rights, which demonstrates that a credible threat of attack is a type of attack.

  3. I have met plenty of patent apologists but no patent defenders. Consider this an open invitation to be the champion who will try to defend patents against the above charges. I am confident I can point out where your arguments have gone astray.

  4. For an account of what constitutes legitimate property see For Individual Rights.