America is already socialist, and it has nothing to do with welfare. Socialism as a style of government is based on the fact that civilization is a social construct. It is essentially the idea that everyone in a formal society (like a nation with its own government) has implicitly agreed to a social contract to support and conform to that society. The other side of the social contract is that society makes it possible for all members to survive reasonably comfortably within society. From a socialist perspective, this is where welfare comes from, however, the U.S. welfare system does not come from socialism. It comes from Christianity, where welfare is a charitable, love-based thing. Of course, most of this love-based charity seems to come from non-Christians, at least in the U.S.
I don't want to talk about actual Socialism though. Most Americans, especially conservative Americans, believe that Socialism is defined as a system of government where all the means of production are controlled by the government. This may be one way, and admittedly the most popular way, of enforcing the social contract of Socialism, it is not the only way. It is, however, the way that most conservative Americans fear, and probably with just cause. This brand of Socialism has been tried before, with mixed results. The USSR spent most of its existence on a downhill slope, as its toxic mix of Socialism and Communism discouraged a good work ethic and marginalized the masses. Ultimately, it fell apart. The People's Republic of China has fared much better. Aside from poor representation of the people and mass murder of its own citizens, China has managed to avoid the steady drop in productivity that the USSR saw. In the end though, China is still finding that even the government itself fares better when some businesses are privatized.
In U.S. has largely feared this brand of Socialism since the beginning. The very idea of government owned or controlled monopolies was derided by many of this nation's founders. During certain periods of our history, merely discussing the merits of Socialism could result in imprisonment, despite the laws that supposedly protect American citizens from government discrimination based on religious and political opinion. The fear of this kind of Socialism is still strong among conservatives. The fact, however, is that it has existed since the very beginning. The United States of America has already embraced what is widely considered the most toxic form of Socialism, though, on a very small scale, and this Socialism exists as a power, granted to the Federal government, by The Constitution of the United States of America.
The common definition of Socialism is a system of government where the government controls the means of production. The government does not strictly have to own the means of production. In practice, what this means, is that the government says who can and cannot produce things. The government may or may not control distribution (controlling distribution is closer to Communism, though this depends on the specifics). Merely regulating production does not qualify. The government can impose regulations without explicitly saying who can and cannot produce a product. Requiring a license for producing a product could qualify, but it is a bit of a stretch if anyone can qualify for a license by meeting some general guidelines. U.S. Socialism limits production to specific individuals or sometimes small groups, who may extend that permission to a third party (technically this permission can be granted to any number of third parties, at the discretion of the individual or group, but it is far more common, now and historically, for exclusive production rights to be granted to a single third party).
Why has this not been realized and rectified? Ironically, the most vocally anti-Socialist political party has put a great deal of effort and money into ensuring that this Socialist system is maintained and even significantly strengthened. The Republican Party has worked tirelessly to further extend the duration and scope of government granted rights to production. They call it "fair," despite the fact that those who have been granted these production rights often end up with profit margins far over 100% and have potentially unlimited profit margins. Violation of these production rights once was only a civil offense that could only be punished with a moderate fine based on the profits lost by the controller of the production rights. Over the last several decades, however, the violation of this Socialist system has become a very serious criminal offense. The penalties have been extended to include jail time and exorbitant fines based on the amount of profits that the production rights owner could have or might have lost, without any burden of proof that any profits were actually lost. It turns out that the most vocal opponent of Socialism is actually the driving force behind the most Socialist practice allows by the U.S. government.
What, exactly, is this Socialism? Simple, intellectual property law. The U.S. Constitution grants the Federal government the power to grant temporary monopolies over production of patented and copyrighted material. Our modern law actually goes beyond what is allowed by The Constitution to include copyright for things that have not explicitly been copyrighted. This system is Socialist, because the government controls the means of production by dictating who can and cannot produce patented or copyrighted works. It is worse than this though. The government does not actually directly control production. It delegates the control of production to someone with a vested interest in the profitability of the product. When pure Socialism puts the production in the control of the government, it does so with the intent to avoid conflicts of interest and maintain fairness for everyone. The U.S. brand of Socialism does the exact opposite. Ironically, the U.S. Constitution seems to predict this, as the stated purpose of this Socialist power is to stimulate progress in the arts and sciences. Unfortunately, the government does not care about this anymore, the Supreme Court makes decisions based on personal opinion instead of Constitutional law, and the biggest sponsor of this Socialist system, the Republican party, is more interested in profits than doing what is right or fair. This may be one of the biggest conflicts of interest in the history of the U.S., but the people are blind to fact that their biggest fear has been realized.
The real facts are these: "Intellectual property" laws are more Socialist than any amount of government welfare. The enormous costs associated with patent wars are ultimately paid by the general public, so this Socialism is actually far more toxic than directly government ownership of production. The stifling of innovation is also bad for society, and it directly violates the Constitutional purpose of patents and copyrights. The evidence provided by the media piracy "epidemic" proves that oppressive intellectual property laws are unnecessary to ensure that content creators receive fair compensation for their work (in fact, the evidence seems to indicate that weaker "protection" would actually help a majority of content creators).
When The Constitution was drafted, Thomas Jefferson, among others, expressed concern with the idea of giving the government control over any level of production. He recognized the toxic Socialist influence it could have, and he has turned out to be right. It is a crying shame that it has taken over 200 years for anyone to notice this, and it is especially concerning that a major political party that claims to oppose this kind of oppression is the biggest supporter of it.
Showing posts with label patents. Show all posts
Showing posts with label patents. Show all posts
02 April 2016
03 August 2015
Guilty Until Proven Innocent
A landlord sues a tenant for not paying rent four months in a row. The tenant says the rent was paid on time each of those months. The landlord's lawyer asks the tenant for some proof that the rent was paid. The tenant, who is representing herself, says she was not given receipts when she paid the rent, and it was paid in cash, so there are no bank records of the transaction aside from withdrawals for amounts that represent rent as well as some bills. Because there is no proof the rent was paid, the judge rules that the tenant has to pay the landlord the value of four months rent.
An employee blows the whistle on an OSHA violation where he works. A week later, he is fired without cause. He knows that there are anti-retribution laws specifically intended to protect whistle blowers, but he cannot afford a lawyer, so he walks away. He ends up unemployed for over 6 months, because his previous employer lies about his character when called for references. He knows he could sue for slander, but again, he cannot afford legal representation, so he just deals with it.
A small video game company comes up with an awesome new game idea. Partway through public beta testing, a major game company files a lawsuit against them for patent infringement. The lead designer knows the element in question has been used before, and that it was in a game much older than the large company's patent, but he cannot recall what that game was. Settling out of court would destroy the company, essentially turning it into a slave of the larger company, so they opt to hire a lawyer. When the lead designer still cannot remember the name of the game that used the element in question, the judge rules that the small company infringed on the larger company's patent. Ultimately, the legal costs cause the small company to go bankrupt.
These three stories have several things in common. The first is that the rich prey on the poor. In the first story, the landlord uses the legal system to rob the tenant. In the second, the employer sends a message to its employees, that retribution will be served for reporting labor law violations. In the third, the big company destroys potential competition using a patent that is not technically valid. The second thing they have in common is that none of the defending parties have adequate legal representation. The first two have no representation, and the third does not have sufficient legal representation to do the necessary research to find the prior art that would invalidate the patent. The third thing they have in common is that the defending parties are all assumed to be guilty unless they can prove their own innocence. In short, justice is not met, fair legal representation is not available, and the principle of innocence until guilt is proven is violated.
In criminal trials, the U.S. Constitution mandates a legal right to legal council for the defendant. U.S. criminal courts provide court appointed lawyers for defendants that cannot afford to pay for their own. This is protected as a legal right. This right is not extended to civil law though. This is a problem. In the above three situations, sufficient legal council was a necessary part of a just outcome, and without that, justice was not served. In the first, a lawyer might have been able to gain access to the landlords financial records to search for evidence that the rent was paid. In the second, the lack of legal council was the pivotal factor that ultimately prevented the victim from even pursuing the issue. In the third, better legal council might have been able to find the prior art that the lead designer could not. Even in civil cases, fair legal representation is necessary to ensure justice, but in the U.S., only criminal defendants are provided with legal representation.
U.S. law does not actually mandate the idea of innocence until guilt is proven. Taken together, several Constitutional amendments are interpreted to mean that this principle should be followed, but this really comes down to ambiguous phrases like "fair trial." Further, these amendments apply only to criminal cases, not to civil cases. This is also a problem. Many civil cases place the burden of proof on the defendant. In other words, the defendant is assumed guilty unless she can prove innocence. Typically this is a matter of convenience, and it has nothing to do with justice. It is more convenient for a defendant to produce proof of payment than it is for a prosecutor to prove that payment was not rendered. It is more convenient to ask the defendant to provide proof of prior art or proof that an idea is common knowledge or otherwise not novel or unique than it is for the prosecutor to prove that no one has ever had the idea before or that the idea is particularly ingenious. The fact, however, is that doing these things places the burden of proof on the defendant, making the defendant legally guilty unless she can provide proof that she is not. Not only is this common in civil cases, it is a problem in a majority of civil cases involving wealthy prosecutors suing poor defendants, who cannot afford legal representation.
In the recent past, these two things have been established all over the world as fundamental human rights. It is widely recognized that trying someone without adequate representation is unfair and morally wrong. Likewise, it is also widely recognized that the accuser bears the burden of proof, not the accused. In fact, this was well understood even in some ancient cultures, where an accuser could be put to death, if proof of the accusation could not be established.
The fact is that there is little difference between criminal and civil law. Both are intended to prevent or mitigate harm. The only difference is classification and penalty. In criminal law, the state acts against the suspect. The suspect is judged by a jury based on codified legal standards. If the suspect is found guilty, a penalty is selected based on a set of codified standards. The punishments all restrict the freedom of the convict. In civil law, an individual or organization acts against the suspect. The suspect is judged by a judge based on personal opinion and legal precedent. If the suspect is found guilty, the judge determines a penalty based on the request of the prosecutor and the cost of the damage. The penalties typically take the form of fines paid to the state and remunerations given to the prosecutor. The actions prompting a lawsuit can be nearly identical in many cases, with only minor differences. For example, if you accuse me of stealing money from your pocket, I will go to criminal court. If I live in your apartment building, and you accuse me of not paying my rent, I will go to civil court, despite the fact that the harm caused may be identical. Both cases amount to theft. The circumstances of the theft are different, and this is used as justification to provide counsel for one and not the other and to assume initial innocence in one and initial guilt in the other. The differences between criminal and civil cases do not justify refusing to provide fair counsel or assuming initial guilt.
Civil law needs two things desperately: Fair representation and innocence until guilt is proven. These two things are essential parts of a fair justice system, and without them, justice cannot be served, regardless of whether it is criminal or civil court.
An employee blows the whistle on an OSHA violation where he works. A week later, he is fired without cause. He knows that there are anti-retribution laws specifically intended to protect whistle blowers, but he cannot afford a lawyer, so he walks away. He ends up unemployed for over 6 months, because his previous employer lies about his character when called for references. He knows he could sue for slander, but again, he cannot afford legal representation, so he just deals with it.
A small video game company comes up with an awesome new game idea. Partway through public beta testing, a major game company files a lawsuit against them for patent infringement. The lead designer knows the element in question has been used before, and that it was in a game much older than the large company's patent, but he cannot recall what that game was. Settling out of court would destroy the company, essentially turning it into a slave of the larger company, so they opt to hire a lawyer. When the lead designer still cannot remember the name of the game that used the element in question, the judge rules that the small company infringed on the larger company's patent. Ultimately, the legal costs cause the small company to go bankrupt.
These three stories have several things in common. The first is that the rich prey on the poor. In the first story, the landlord uses the legal system to rob the tenant. In the second, the employer sends a message to its employees, that retribution will be served for reporting labor law violations. In the third, the big company destroys potential competition using a patent that is not technically valid. The second thing they have in common is that none of the defending parties have adequate legal representation. The first two have no representation, and the third does not have sufficient legal representation to do the necessary research to find the prior art that would invalidate the patent. The third thing they have in common is that the defending parties are all assumed to be guilty unless they can prove their own innocence. In short, justice is not met, fair legal representation is not available, and the principle of innocence until guilt is proven is violated.
In criminal trials, the U.S. Constitution mandates a legal right to legal council for the defendant. U.S. criminal courts provide court appointed lawyers for defendants that cannot afford to pay for their own. This is protected as a legal right. This right is not extended to civil law though. This is a problem. In the above three situations, sufficient legal council was a necessary part of a just outcome, and without that, justice was not served. In the first, a lawyer might have been able to gain access to the landlords financial records to search for evidence that the rent was paid. In the second, the lack of legal council was the pivotal factor that ultimately prevented the victim from even pursuing the issue. In the third, better legal council might have been able to find the prior art that the lead designer could not. Even in civil cases, fair legal representation is necessary to ensure justice, but in the U.S., only criminal defendants are provided with legal representation.
U.S. law does not actually mandate the idea of innocence until guilt is proven. Taken together, several Constitutional amendments are interpreted to mean that this principle should be followed, but this really comes down to ambiguous phrases like "fair trial." Further, these amendments apply only to criminal cases, not to civil cases. This is also a problem. Many civil cases place the burden of proof on the defendant. In other words, the defendant is assumed guilty unless she can prove innocence. Typically this is a matter of convenience, and it has nothing to do with justice. It is more convenient for a defendant to produce proof of payment than it is for a prosecutor to prove that payment was not rendered. It is more convenient to ask the defendant to provide proof of prior art or proof that an idea is common knowledge or otherwise not novel or unique than it is for the prosecutor to prove that no one has ever had the idea before or that the idea is particularly ingenious. The fact, however, is that doing these things places the burden of proof on the defendant, making the defendant legally guilty unless she can provide proof that she is not. Not only is this common in civil cases, it is a problem in a majority of civil cases involving wealthy prosecutors suing poor defendants, who cannot afford legal representation.
In the recent past, these two things have been established all over the world as fundamental human rights. It is widely recognized that trying someone without adequate representation is unfair and morally wrong. Likewise, it is also widely recognized that the accuser bears the burden of proof, not the accused. In fact, this was well understood even in some ancient cultures, where an accuser could be put to death, if proof of the accusation could not be established.
The fact is that there is little difference between criminal and civil law. Both are intended to prevent or mitigate harm. The only difference is classification and penalty. In criminal law, the state acts against the suspect. The suspect is judged by a jury based on codified legal standards. If the suspect is found guilty, a penalty is selected based on a set of codified standards. The punishments all restrict the freedom of the convict. In civil law, an individual or organization acts against the suspect. The suspect is judged by a judge based on personal opinion and legal precedent. If the suspect is found guilty, the judge determines a penalty based on the request of the prosecutor and the cost of the damage. The penalties typically take the form of fines paid to the state and remunerations given to the prosecutor. The actions prompting a lawsuit can be nearly identical in many cases, with only minor differences. For example, if you accuse me of stealing money from your pocket, I will go to criminal court. If I live in your apartment building, and you accuse me of not paying my rent, I will go to civil court, despite the fact that the harm caused may be identical. Both cases amount to theft. The circumstances of the theft are different, and this is used as justification to provide counsel for one and not the other and to assume initial innocence in one and initial guilt in the other. The differences between criminal and civil cases do not justify refusing to provide fair counsel or assuming initial guilt.
Civil law needs two things desperately: Fair representation and innocence until guilt is proven. These two things are essential parts of a fair justice system, and without them, justice cannot be served, regardless of whether it is criminal or civil court.
05 May 2014
Inventor
Invention as a profession is dead. It should not be.
Long ago, when someone decided to become an inventor, they committed to it. Invention was a risky profession, but it also had the potential for great payoffs. Most inventions were unsuccessful. Failure was far more common than success. Some inventors had to do work on the side to fund their profession, and others had to beg family or friends for funding. The life of an inventor was filled with disappointments marked with occasional success. Inventing was not an easy life, but we are very lucky that there were people willing to do it. All of our modern technology is based on technologies and inventions created by these inventors. Sadly, modern economics and politics have killed this noble profession.
In the early U.S., inventors were willing to deal with constant failure. They would test absurd ideas, even though the chances of success were low. Economically, this was often very hard on inventors. When the occasional absurd idea was successful though, the benefits to the inventor and to society were often very large. Also, regular failure taught the inventors more about how things worked, which has benefitted society to an even larger degree. Modern science rides on the discoveries made from failed ideas.
Maybe it seems like the most successful inventors had fewer failures. This is not true. According to Edison, he tried 999 filament materials for the light bulb before he tried the carbonized bamboo that lasted long enough to be practical (it is probable that he tried even more than that). That is a success rate of 0.1%. Successful inventors have usually failed more times, but only because they have tried more things.
Modern economics have destroyed the profession of inventor, because it expects quick returns. Modern economics suggests that ideas that do not have almost guaranteed returns are not worth pursuing. It also suggests that ideas that will not turn profits in less than a few years are not profitable at all (though this does not apply to the pharmaceutical or tech industries). Politics have made the situation even worse, by allowing companies to hoard patents they never intend on using. Inventors now would have to navigate a legal minefield of patent trolls, a task which takes a degree in patent law to execute successfully. Our current legal and economic habitat is hostile to inventors.
Now, I can hear some people saying that invention is not a dead profession, but rather it has evolved. Not so! Invention is the creation of new things. Inventors create new things from new ideas. Not just this, but inventors do this as their profession. What I mean by this is, they do not occasionally invent new things when their job requires it. Inventors spend most of their working time creating or testing new ideas. When a guy at a semiconductor company comes up with a new communication technology, he is inventing, but that does not make him a professional inventor. He may spend most of his time piecing together smaller components to make a larger component that does something that has already been done. In fact, a large part of computer science and electrical engineering is not inventing, but just creating mundane solutions from existing technology. Maybe a company will create a faster microprocessor using a new manufacturing technology. The new technology is a new invention. The work going into adapting old processor technology to the new manufacturing technology is mostly just adaptation, not invention. Invention involves the creation of substantially new things. Minor improvements to a product is hardly serious inventing. Also, the number of patents a person has does not determine whether that person is an inventor or not. The guy who patented "exercising a cat" with a laser pointer is certainly no inventor. In part, because a single invention does not make a person an inventor, in part because a serious inventor may never patent anything (and inventor who always fails may still be an inventor), and in part because that particular activity was common knowledge, and thus does not even qualify as an invention. Some engineers hold thousands of patents or more, but this still does not make them inventors. Are the patents for real innovations, or are they for processes or products that are less than novel ways of doing things that are only marginally different from existing ideas? Microsoft holds (or held, last I heard) a patent for a progress bar on mobile platforms. This is hardly novel, and in fact, even in the infancy of computing, a graphical progress bar was not novel. Such constructs have been used in writing for tracking time passed for centuries (tally marks are a form of visual progress indicator, very similar to the progress bar). Serious inventors do not just take existing ideas and make minor improvements or alterations. Serious inventors invent completely new things. The first music player was a serious invention. The MP3 player was a less serious invention, because it was just a more compact and convenient music player. It did not really do anything that had not been done before. It just did the same things a little differently (how it does it is different; what it does is not). The first blue MP3 player created was not really an invention at all, because it did exactly the same thing as other MP3 players, but with a blue color. It did nothing differently; it only looked slightly different. Professional inventors do not just change the color or make trivial changes. In fact, people who make trivial changes to improve a product are often referred to as "hackers." Hackers make small improvements to existing technologies or products. Inventors create entirely new technologies or products.
Why should the profession of invention not be dead? Inventing improves technology, science, and society faster than the incremental innovation that is common now. Modern companies invent only so much as is necessary to keep an edge over competitors, and they invent in as small of steps as possible to minimize risk of failure. This is a very slow way of advancing technology. It also minimizes the chances of discovering wildly new technologies that could revolutionize civilization. It prevents or delays the successes that could be the most beneficial to society, civilization, and technology. It retards technological advancement.
Can invention as a profession be revived? I believe it can. In fact, I believe it has almost everything going for it. Back in the day of Edison, obtaining materials for inventing could be expensive and difficult. I have been told that he once tried a special grass from Africa (I think), as a filament for the light bulb. The first shipment rotted in transit, so he paid for a second one. If he had not already gotten fairly wealthy from some of his other inventions, he would never have been able to try this (and, he would not have been able to afford the bamboo fiber that he finally settled on). Now, almost anything can be obtained fairly cheaply on Amazon or EBay. Most of the highly specialized inventing tools of the past can be obtained for free as software if you have a computer. Math that was extremely advanced can now be abstracted away with free simulation software. Prototyping has become very cheap with the wide availability of 3D printing. In fact, a cheap 3D printer can be constructed for home use for only a few hundred dollars. Perhaps the most dramatic improvement is welfare. Back in the early U.S., inventors often risked their own welfare as well as that of their family. Too many failed inventions could result in starvation or loss of property. The economics of inventing could be like some sort of tightrope act. Too much money spent on inventing could result in starvation, but too little could limit the potential for success, also ending in starvation. Now, we have a half decent government welfare system that can function as a safety net. The modern inventor no longer has to worry so much about starvation and homelessness. Failure will still occur, but that will never change. The true secret to success is to fail often, because failure teaches, and the more often you try, the higher your chances of success over time. The inventor who tries 10 things a month has far fewer chances to succeed than the inventor who tries 100 things a month.
This situation can and should be improved further. Unemployment is still very high. The problem is no longer so much lack of jobs as it is lack of work. We can produce everything we need and much of what we want with much less labor than is available. This is not necessarily a bad thing, if we can find a beneficial way to use the excess labor. There are several ways to do this. The first is crowdfunding. Kickstarter provides a very good service for helping to fund projects that are very well thought out and planned. It does not do so well for larger, longer term research projects. Invention often involves trying many ideas without a good idea of what will be the most likely road to success. Kickstarter projects must have some kind of schedule (at least a tentative one), with a well defined definition of success. Serious invention projects do not always have schedules, because there is not enough data to estimate how long things will take. I imagine Edison expected to find an acceptable filament material for his light bulb in only a few hundred tries. Instead it took at least 1,000 tries. By Kickstarter standards, this would be a failure, but in reality, it was a very significant success. Now, I am not trying to bash Kickstarter. I think it is great, and the limitations are useful in defining and limiting the risk. I do, however, think we need more crowdfunding systems for more risky projects. Kickstarter is great because it only offers projects that are lower risk and that guarantee some kind of return. This attracts a certain kind of investor. More serious invention projects would likely attract fewer investors, and they would be funded less often. There might be little guarantee of return, but investors will be aware of this up front. One great idea I would like to see is an open source crowdfunding operation where the main requirement is that all research notes and discoveries be released under open source hardware or software licences. One of the best things about this kind of system is that the researchers would get paid reasonably for their work, and the results become available to the investors with no strings attached (even if they fail).
Another option is government incentives. Government incentives might include stipends for people who can prove they are spending significant time inventing or learning things useful for inventing. Inventors might also get tax credits for money spent on tools and resources used for inventing. People who spend more than 10 hours a week inventing might even be able to request invention grants, to help pay for more expensive tools or resources. This would help reduce the unemployment problem and for those who are worried about anyone getting a free lunch, there could be some kind of requirement that the results of any useful inventions become public domain in a shorter time than the normal patent term. Not only would this help alleviate unemployment by consuming excess labor, it would also give unemployed people more useful things to do than searching for jobs that do not exist, and it would help improve the rate of technology progression in the U.S. (which we sorely need). Also, it would further reduce the risk of inventing.
High risk inventing is what drives serious technological advancement. There is evidence of this in the fact that Japan used to be technologically very inferior to the U.S., but is now rather far ahead. China is beginning to catch up as well. People in Japan and China fear failure less than people in the U.S. Japan has had many failed inventions, but there are some that have been successful against all odds. There are some pretty absurd inventions that have been successful in Japan (for instance, a bidet with a massaging sprayer like those found in many shower heads). China is catching up, because many Chinese people have less to lose, so they are willing to take larger risks (it also helps that labor is cheaper than is ethical there; note that I am not endorsing this). In the U.S., we do not see absurd inventions, because no one bothers even trying to invent something that sounds absurd, because we fear failure. We have a safety net, so we have no excuse anymore. If an American tries to invent something and fails, or if it takes longer than expected, there is a welfare system to make up the slack. Yes, it should be even better than this, but we have it far better than those early Americans who took great risks in inventing the technology that has brought us so far. It would be a shame to abandon the profession that got us to where we are now, just because we are afraid we might fail.
Long ago, when someone decided to become an inventor, they committed to it. Invention was a risky profession, but it also had the potential for great payoffs. Most inventions were unsuccessful. Failure was far more common than success. Some inventors had to do work on the side to fund their profession, and others had to beg family or friends for funding. The life of an inventor was filled with disappointments marked with occasional success. Inventing was not an easy life, but we are very lucky that there were people willing to do it. All of our modern technology is based on technologies and inventions created by these inventors. Sadly, modern economics and politics have killed this noble profession.
In the early U.S., inventors were willing to deal with constant failure. They would test absurd ideas, even though the chances of success were low. Economically, this was often very hard on inventors. When the occasional absurd idea was successful though, the benefits to the inventor and to society were often very large. Also, regular failure taught the inventors more about how things worked, which has benefitted society to an even larger degree. Modern science rides on the discoveries made from failed ideas.
Maybe it seems like the most successful inventors had fewer failures. This is not true. According to Edison, he tried 999 filament materials for the light bulb before he tried the carbonized bamboo that lasted long enough to be practical (it is probable that he tried even more than that). That is a success rate of 0.1%. Successful inventors have usually failed more times, but only because they have tried more things.
Modern economics have destroyed the profession of inventor, because it expects quick returns. Modern economics suggests that ideas that do not have almost guaranteed returns are not worth pursuing. It also suggests that ideas that will not turn profits in less than a few years are not profitable at all (though this does not apply to the pharmaceutical or tech industries). Politics have made the situation even worse, by allowing companies to hoard patents they never intend on using. Inventors now would have to navigate a legal minefield of patent trolls, a task which takes a degree in patent law to execute successfully. Our current legal and economic habitat is hostile to inventors.
Now, I can hear some people saying that invention is not a dead profession, but rather it has evolved. Not so! Invention is the creation of new things. Inventors create new things from new ideas. Not just this, but inventors do this as their profession. What I mean by this is, they do not occasionally invent new things when their job requires it. Inventors spend most of their working time creating or testing new ideas. When a guy at a semiconductor company comes up with a new communication technology, he is inventing, but that does not make him a professional inventor. He may spend most of his time piecing together smaller components to make a larger component that does something that has already been done. In fact, a large part of computer science and electrical engineering is not inventing, but just creating mundane solutions from existing technology. Maybe a company will create a faster microprocessor using a new manufacturing technology. The new technology is a new invention. The work going into adapting old processor technology to the new manufacturing technology is mostly just adaptation, not invention. Invention involves the creation of substantially new things. Minor improvements to a product is hardly serious inventing. Also, the number of patents a person has does not determine whether that person is an inventor or not. The guy who patented "exercising a cat" with a laser pointer is certainly no inventor. In part, because a single invention does not make a person an inventor, in part because a serious inventor may never patent anything (and inventor who always fails may still be an inventor), and in part because that particular activity was common knowledge, and thus does not even qualify as an invention. Some engineers hold thousands of patents or more, but this still does not make them inventors. Are the patents for real innovations, or are they for processes or products that are less than novel ways of doing things that are only marginally different from existing ideas? Microsoft holds (or held, last I heard) a patent for a progress bar on mobile platforms. This is hardly novel, and in fact, even in the infancy of computing, a graphical progress bar was not novel. Such constructs have been used in writing for tracking time passed for centuries (tally marks are a form of visual progress indicator, very similar to the progress bar). Serious inventors do not just take existing ideas and make minor improvements or alterations. Serious inventors invent completely new things. The first music player was a serious invention. The MP3 player was a less serious invention, because it was just a more compact and convenient music player. It did not really do anything that had not been done before. It just did the same things a little differently (how it does it is different; what it does is not). The first blue MP3 player created was not really an invention at all, because it did exactly the same thing as other MP3 players, but with a blue color. It did nothing differently; it only looked slightly different. Professional inventors do not just change the color or make trivial changes. In fact, people who make trivial changes to improve a product are often referred to as "hackers." Hackers make small improvements to existing technologies or products. Inventors create entirely new technologies or products.
Why should the profession of invention not be dead? Inventing improves technology, science, and society faster than the incremental innovation that is common now. Modern companies invent only so much as is necessary to keep an edge over competitors, and they invent in as small of steps as possible to minimize risk of failure. This is a very slow way of advancing technology. It also minimizes the chances of discovering wildly new technologies that could revolutionize civilization. It prevents or delays the successes that could be the most beneficial to society, civilization, and technology. It retards technological advancement.
Can invention as a profession be revived? I believe it can. In fact, I believe it has almost everything going for it. Back in the day of Edison, obtaining materials for inventing could be expensive and difficult. I have been told that he once tried a special grass from Africa (I think), as a filament for the light bulb. The first shipment rotted in transit, so he paid for a second one. If he had not already gotten fairly wealthy from some of his other inventions, he would never have been able to try this (and, he would not have been able to afford the bamboo fiber that he finally settled on). Now, almost anything can be obtained fairly cheaply on Amazon or EBay. Most of the highly specialized inventing tools of the past can be obtained for free as software if you have a computer. Math that was extremely advanced can now be abstracted away with free simulation software. Prototyping has become very cheap with the wide availability of 3D printing. In fact, a cheap 3D printer can be constructed for home use for only a few hundred dollars. Perhaps the most dramatic improvement is welfare. Back in the early U.S., inventors often risked their own welfare as well as that of their family. Too many failed inventions could result in starvation or loss of property. The economics of inventing could be like some sort of tightrope act. Too much money spent on inventing could result in starvation, but too little could limit the potential for success, also ending in starvation. Now, we have a half decent government welfare system that can function as a safety net. The modern inventor no longer has to worry so much about starvation and homelessness. Failure will still occur, but that will never change. The true secret to success is to fail often, because failure teaches, and the more often you try, the higher your chances of success over time. The inventor who tries 10 things a month has far fewer chances to succeed than the inventor who tries 100 things a month.
This situation can and should be improved further. Unemployment is still very high. The problem is no longer so much lack of jobs as it is lack of work. We can produce everything we need and much of what we want with much less labor than is available. This is not necessarily a bad thing, if we can find a beneficial way to use the excess labor. There are several ways to do this. The first is crowdfunding. Kickstarter provides a very good service for helping to fund projects that are very well thought out and planned. It does not do so well for larger, longer term research projects. Invention often involves trying many ideas without a good idea of what will be the most likely road to success. Kickstarter projects must have some kind of schedule (at least a tentative one), with a well defined definition of success. Serious invention projects do not always have schedules, because there is not enough data to estimate how long things will take. I imagine Edison expected to find an acceptable filament material for his light bulb in only a few hundred tries. Instead it took at least 1,000 tries. By Kickstarter standards, this would be a failure, but in reality, it was a very significant success. Now, I am not trying to bash Kickstarter. I think it is great, and the limitations are useful in defining and limiting the risk. I do, however, think we need more crowdfunding systems for more risky projects. Kickstarter is great because it only offers projects that are lower risk and that guarantee some kind of return. This attracts a certain kind of investor. More serious invention projects would likely attract fewer investors, and they would be funded less often. There might be little guarantee of return, but investors will be aware of this up front. One great idea I would like to see is an open source crowdfunding operation where the main requirement is that all research notes and discoveries be released under open source hardware or software licences. One of the best things about this kind of system is that the researchers would get paid reasonably for their work, and the results become available to the investors with no strings attached (even if they fail).
Another option is government incentives. Government incentives might include stipends for people who can prove they are spending significant time inventing or learning things useful for inventing. Inventors might also get tax credits for money spent on tools and resources used for inventing. People who spend more than 10 hours a week inventing might even be able to request invention grants, to help pay for more expensive tools or resources. This would help reduce the unemployment problem and for those who are worried about anyone getting a free lunch, there could be some kind of requirement that the results of any useful inventions become public domain in a shorter time than the normal patent term. Not only would this help alleviate unemployment by consuming excess labor, it would also give unemployed people more useful things to do than searching for jobs that do not exist, and it would help improve the rate of technology progression in the U.S. (which we sorely need). Also, it would further reduce the risk of inventing.
High risk inventing is what drives serious technological advancement. There is evidence of this in the fact that Japan used to be technologically very inferior to the U.S., but is now rather far ahead. China is beginning to catch up as well. People in Japan and China fear failure less than people in the U.S. Japan has had many failed inventions, but there are some that have been successful against all odds. There are some pretty absurd inventions that have been successful in Japan (for instance, a bidet with a massaging sprayer like those found in many shower heads). China is catching up, because many Chinese people have less to lose, so they are willing to take larger risks (it also helps that labor is cheaper than is ethical there; note that I am not endorsing this). In the U.S., we do not see absurd inventions, because no one bothers even trying to invent something that sounds absurd, because we fear failure. We have a safety net, so we have no excuse anymore. If an American tries to invent something and fails, or if it takes longer than expected, there is a welfare system to make up the slack. Yes, it should be even better than this, but we have it far better than those early Americans who took great risks in inventing the technology that has brought us so far. It would be a shame to abandon the profession that got us to where we are now, just because we are afraid we might fail.
03 February 2014
Patentable Genetics
The U.S. government will allow you to patent almost anything, with very few exceptions. You cannot patent food recipes. You cannot patent mathematical algorithms, unless of course, you call them computer programs (which are nothing more than mathematical algorithms). You cannot patent things that have already been patented. You can patent things that have been done before, so long as no one catches you, and even if they do, there is no accountability. Someone even patented the act of "exercising" a cat using a laser pointer to entertain it. There are some pretty absurd things you can patent. Genetics happens to be one of them.
Genetics should not be patentable. First, genetic material is little more than a mathematical algorithm using a different form of math than traditional arithmetic. Second, genetic material used to grow food (vegetables or animals) is nothing more than a recipe for creating food. Neither of these things are legally patentable. So, why are genetically engineered or even just selectively bread seeds patentable? Personally, I think it is because our government is run by uneducated politicians (by uneducated I mean, they have almost no education in anything relevant to their job; an education in politics is little more than learning how to get into office; it does not teach anything about the real world problems you will have to deal with once you get there). Really though, I do not care why. I want to discuss why genetics should not be patentable.
For a patent to be enforceable, there are some requirements. The first requirement is that the patented thing be easily distinguishable from similar things. If someone invents a flint lock made from tool steel, and someone else makes one from spring steel, they cannot both patent their inventions, because they are almost impossible to distinguish from each other. Any case of patent violation could claim that the stolen design was the one from the other guy, and while it is possible to test the metals, the cost would be very high. Genetics has an even worse problem. Compared to testing genes, testing metals is trivial. It can cost hundreds or millions of dollars to check a sample of genetic material to see if it matches a specific sequence. The problem is aggravated by the fact that most people do not have the ability to do this. This brings me to the biggest problem with not being easily distinguishable. What happens if someone gives me a bag of seeds, where they may be patented genetic material in some of the seeds? If those patented seeds were not obtained directly from the patent owner (for instance, a friend gives me a bag of popcorn kernels where some of the seeds are from special Monsanto corn he grew), then it would be illegal for me to plant and grow those seeds. Here is the problem: I now want to grow my own popcorn. I could go to the store and buy seeds, or I could use the bag of seeds my friend gave me. If I choose the later, I am legally obligated to pick through the seeds, removing the Monsanto seeds from my planting stock. The cost of the genetic profiling required to separate the seeds is absurd. Even most very rich people would not be able to afford it. Because the patented material is not easily distinguishable from similar things, it is absurd to expect anyone to honor it. Worse, if my friend neglected to tell me about the Monsanto corn, I could be breaking the law without any way of knowing. So that sounds pretty bad, but it keeps going. Let's say the bag did not actually have any Monsanto corn. My friend grew some heirloom variety of corn that is so old it is not patentable. So, I grow some of the seeds in my backyard. From my harvest, I set aside some of the seeds to grow the next batch and so on. It may sound like I am safe, but I am not. What if my neighbor bought some Monsanto corn and grew it in their backyard? Now, some of my corn is probably going get pollinated from the Monsanto corn. The resulting seeds are now a cross between my heirloom variety and the Monsanto stuff. At least half of the seeds pollinated with the Monsanto pollen probably have the patented Monsanto genes. It is now illegal for me to plant those seeds, even though I may not have a clue that they contain patented material, and there is no reasonable way for me to tell that they have patented material in them. And, the government still expects me to honor Monsanto's patent. Thankfully, it is going to be extremely difficult for Monsanto to catch and prosecute me, because the cost for them to discover my patent infringement is very high. Still, using law to define ethics is a rather tyrannical practice (in fact, it is exactly how tyrants work).
The second problem is obviousness. This requirement is that things that are either obvious or common knowledge cannot be patented. This one gets really hairy. This is also a part of patent law. Legally, a thing that is obvious or common knowledge cannot be patented (it still happens all the time though). If something is common knowledge, it is subject something called "prior art." Prior art is anything that has already been done. If you sue me for infringing your patent, I can get your patent invalidated by showing that you were not the first person to come up with the idea. Note that it does not have to be me that invented it first. If I can show that anyone came up with the idea before you, your patent is invalid. The idea with these is that if someone else could easily come up with the same idea, then you should not be able to have a monopoly on it. Now, applied to genetics, this can be used to show how absurd it is to patent genes. First, all genetics were created by one of two things. The first is God. If God created all genetics, then it is pretty much all prior art. Nothing built on these genetics would be patentable because it has pretty much all been done (Monsanto looks for useful sequences in existing organisms and puts them into other organisms; no original genetic code is created). The second is random chance. If random chance created genetics, then I would argue that it must be obvious. If it is obvious, it is legally unpatentable. In this case, it is still also all prior art. So, this argument may seem weak. It is in some ways, but it still has the law behind it. Prior art is legally acceptable evidence that a patent is invalid. So, legally if I can find each genetic sequence used in a Monsanto seed in something else that has existed since before Monsanto created the genetics for the seed, I should be absolved of any wrong doing. The problem is that Monsanto has the means to prove that I have used their seeds, but I do not have the means to show prior art, entirely because I cannot afford the massive genetic profiling that would be required to do this. In other words, I am automatically guilty of patent infringement unless I can afford to prove innocence. Further, Monsanto has no accountability. If I do manage to prove the existence of prior art, they do not have to pay my research costs or even pay damages for the costs of the law suit. They also do not have to compensate their customers who paid premium prices because Monsanto's invalid patent protected the company from competition. They loose their patent, but they should never have had it in the first place, and they still did benefit from it. Note that this does not only apply to genetics. This lack of accountability applies to all types of patents. In genetics, however, the high cost of proving innocence makes it far worse.
Now, let's take this one step further, into the absurd. Eli Whitney invented the cotton gin, a device to make the arduous task of separating cotton fibers from the seeds much easier and faster. Now, who would he have sued if nature had randomly created a cotton gin? Let's say that a combination of a lightning strike, a falling tree, and the perfect position of iron ore and water managed to create a cotton gin without any human intervention. Who would he sue? We do not have to worry about this because it will never occur. If the combination of random natural events could create a cotton gin, it would not be patentable, because it would be obvious. Ideas like dams, which have been built by beavers for millenia or burning wood for heat, which has been done by lightning for even longer, are not patentable because they are obvious. One consequence of this is that humans have learned from nature to do these things, as soon as we developed sufficient technology to do it. Now, some might say that genetics is different, because it is so difficult. I would argue that at one time, building a dam was an insurmountable task for humans. We had to develop the appropriate tools before we could build dams. Genetics is not any different. Unlike the cotton gin, nature routinely combines and alters genes to create new varieties of organisms. In fact, nature can alter individual genes and even small parts of genes. We do not have a clue how small parts of genes interact to develop different life forms. Even Monsanto can do nothing more than search of gene sequences that do things and hope that inserting them in the right place will add the desired traits to their plants. Essentially, modern genetic engineering is nothing more that reverse engineering things nature has created, and trying to combine the "code" differently to get desired results. There is no invention going on here. It is all prior art. As with the dam, we are just adapting things nature has created to do what we want. Just because the tools for doing this were invented recently does not change the fact that we are doing nothing more than combining prior art in rather obvious ways. For instance, is it something novel to make a crop resistant to herbicides so that higher doses can be used to destroy weeds, given that the technology to do so exists? Is it novel to use genetic engineering to improve the taste, texture, or nutrition of food, given that the technology to do so exists? How many people have wished that some healthy food was better tasting? How many people have wished the junk food was healthier? If these are not obvious things to do with new tools capable of doing them, I do not know what is. So, now for the hundred dollar question: If nature manages to randomly produce something that Monsanto has patented, who does Monsanto sue? Nature will never randomly create a cotton gin, because it is too complex for natural processes to produce. Genes are not too complex for nature to produce (right, a seed is, evidently, less complex than a cotton gin; take that, opponents to natural selection). In fact, it is extremely probable that nature has produced "Roundup Ready" varieties of many plants throughout the millions of years it has been playing with genetics. Evidence has even been found that ancient ancestors of wheat, corn, and many other grains were much more nutritious than modern varieties (in fact, some evidence support the theory that the "grain" classification of food plants contains exclusively human created plant varieties; otherwise stated, all plants classified as grains are man made, thus the entire classification itself may have been created through human intervention).
Anyhow, allowing genetics to be patented is absurd. There are at least two legal reasons genes should not be patentable. There are multiple ethical reasons they should not be patentable, including the fact that it is impossible for most people to distinguish the difference between patented genetic material and public domain genetic material. It is like making laws against certain types of speech but not telling the people exactly what it is that is illegal to say (throughout history, tyrants have done this and similar things). Also, the transfer of genetic material is such an easy process that it is almost impossible to tell whether or not it has even occurred. Making arbitrary laws that are impossible to determine if they have actually been broken or not is the hallmark of an oppressive government. While this is not criminal law (which would allow the government to punish people on charges that are impossible to verify), it is still wrong. Technically speaking, if I used traditional plant breeding techniques to create an herbicide resistant variety of corn or rice, and if the random combinations of genetic material created in the process managed to match the genetic code of Monsanto's Roundup Ready variety of the same plant, I could be sued for patent infringement, even though I used a completely different technique without any means of comparing the two products. This is ethically wrong! This is actually not just a problem with genetic patents. It is not horribly uncommon for two people to invent the same thing around the same time. When this happens, the person that gets the patent papers in first wins. This is extremely unfair to the other person, especially when the cost of inventing is high. With genetics though, this is aggravated by the fact that most people do not have the means to tell when they are violating patents or not. Plant husbandry can take years to create what genetic engineering can do in months. The cost for both is ultimately very high. It is also uncommon for either to be used in a way that is really novel. Probably the most novel use of plants is using tobacco to produce cancer cells used to illicit an immune response. Nothing Monsanto, or any other plant producer, does with genetic engineering or even selective breeding is novel. Outside the realm of food, flowers are often bread for specific colors or scents. This is not novel. People like pretty and good smelling flowers. Within the realm of food, plants are engineered or bread for size, texture, nutrient content, flavor, and even aesthetic (colors, size, etc...). These things are also not even remotely novel. People have been successfully breeding food plants to favor one or more of these traits for thousands of years. It is neither new nor novel. Novelty is a legal requirement of patents. There may be some things that can be done with genetics that nature has not done and that has some novel unique use. Until at least one of these things is discovered, genetics should not be patentable at all.
Ultimately, gene patents are unethical. They amount to little more than a way for companies to sue people without much risk of those people being able to prove their innocence. Gene patents give great power to large corporations with a lot of resources at the cost of small businesses and individuals. It is a manifestation of a common form of government oppression and tyranny. Gene patents should be abolished.
Genetics should not be patentable. First, genetic material is little more than a mathematical algorithm using a different form of math than traditional arithmetic. Second, genetic material used to grow food (vegetables or animals) is nothing more than a recipe for creating food. Neither of these things are legally patentable. So, why are genetically engineered or even just selectively bread seeds patentable? Personally, I think it is because our government is run by uneducated politicians (by uneducated I mean, they have almost no education in anything relevant to their job; an education in politics is little more than learning how to get into office; it does not teach anything about the real world problems you will have to deal with once you get there). Really though, I do not care why. I want to discuss why genetics should not be patentable.
For a patent to be enforceable, there are some requirements. The first requirement is that the patented thing be easily distinguishable from similar things. If someone invents a flint lock made from tool steel, and someone else makes one from spring steel, they cannot both patent their inventions, because they are almost impossible to distinguish from each other. Any case of patent violation could claim that the stolen design was the one from the other guy, and while it is possible to test the metals, the cost would be very high. Genetics has an even worse problem. Compared to testing genes, testing metals is trivial. It can cost hundreds or millions of dollars to check a sample of genetic material to see if it matches a specific sequence. The problem is aggravated by the fact that most people do not have the ability to do this. This brings me to the biggest problem with not being easily distinguishable. What happens if someone gives me a bag of seeds, where they may be patented genetic material in some of the seeds? If those patented seeds were not obtained directly from the patent owner (for instance, a friend gives me a bag of popcorn kernels where some of the seeds are from special Monsanto corn he grew), then it would be illegal for me to plant and grow those seeds. Here is the problem: I now want to grow my own popcorn. I could go to the store and buy seeds, or I could use the bag of seeds my friend gave me. If I choose the later, I am legally obligated to pick through the seeds, removing the Monsanto seeds from my planting stock. The cost of the genetic profiling required to separate the seeds is absurd. Even most very rich people would not be able to afford it. Because the patented material is not easily distinguishable from similar things, it is absurd to expect anyone to honor it. Worse, if my friend neglected to tell me about the Monsanto corn, I could be breaking the law without any way of knowing. So that sounds pretty bad, but it keeps going. Let's say the bag did not actually have any Monsanto corn. My friend grew some heirloom variety of corn that is so old it is not patentable. So, I grow some of the seeds in my backyard. From my harvest, I set aside some of the seeds to grow the next batch and so on. It may sound like I am safe, but I am not. What if my neighbor bought some Monsanto corn and grew it in their backyard? Now, some of my corn is probably going get pollinated from the Monsanto corn. The resulting seeds are now a cross between my heirloom variety and the Monsanto stuff. At least half of the seeds pollinated with the Monsanto pollen probably have the patented Monsanto genes. It is now illegal for me to plant those seeds, even though I may not have a clue that they contain patented material, and there is no reasonable way for me to tell that they have patented material in them. And, the government still expects me to honor Monsanto's patent. Thankfully, it is going to be extremely difficult for Monsanto to catch and prosecute me, because the cost for them to discover my patent infringement is very high. Still, using law to define ethics is a rather tyrannical practice (in fact, it is exactly how tyrants work).
The second problem is obviousness. This requirement is that things that are either obvious or common knowledge cannot be patented. This one gets really hairy. This is also a part of patent law. Legally, a thing that is obvious or common knowledge cannot be patented (it still happens all the time though). If something is common knowledge, it is subject something called "prior art." Prior art is anything that has already been done. If you sue me for infringing your patent, I can get your patent invalidated by showing that you were not the first person to come up with the idea. Note that it does not have to be me that invented it first. If I can show that anyone came up with the idea before you, your patent is invalid. The idea with these is that if someone else could easily come up with the same idea, then you should not be able to have a monopoly on it. Now, applied to genetics, this can be used to show how absurd it is to patent genes. First, all genetics were created by one of two things. The first is God. If God created all genetics, then it is pretty much all prior art. Nothing built on these genetics would be patentable because it has pretty much all been done (Monsanto looks for useful sequences in existing organisms and puts them into other organisms; no original genetic code is created). The second is random chance. If random chance created genetics, then I would argue that it must be obvious. If it is obvious, it is legally unpatentable. In this case, it is still also all prior art. So, this argument may seem weak. It is in some ways, but it still has the law behind it. Prior art is legally acceptable evidence that a patent is invalid. So, legally if I can find each genetic sequence used in a Monsanto seed in something else that has existed since before Monsanto created the genetics for the seed, I should be absolved of any wrong doing. The problem is that Monsanto has the means to prove that I have used their seeds, but I do not have the means to show prior art, entirely because I cannot afford the massive genetic profiling that would be required to do this. In other words, I am automatically guilty of patent infringement unless I can afford to prove innocence. Further, Monsanto has no accountability. If I do manage to prove the existence of prior art, they do not have to pay my research costs or even pay damages for the costs of the law suit. They also do not have to compensate their customers who paid premium prices because Monsanto's invalid patent protected the company from competition. They loose their patent, but they should never have had it in the first place, and they still did benefit from it. Note that this does not only apply to genetics. This lack of accountability applies to all types of patents. In genetics, however, the high cost of proving innocence makes it far worse.
Now, let's take this one step further, into the absurd. Eli Whitney invented the cotton gin, a device to make the arduous task of separating cotton fibers from the seeds much easier and faster. Now, who would he have sued if nature had randomly created a cotton gin? Let's say that a combination of a lightning strike, a falling tree, and the perfect position of iron ore and water managed to create a cotton gin without any human intervention. Who would he sue? We do not have to worry about this because it will never occur. If the combination of random natural events could create a cotton gin, it would not be patentable, because it would be obvious. Ideas like dams, which have been built by beavers for millenia or burning wood for heat, which has been done by lightning for even longer, are not patentable because they are obvious. One consequence of this is that humans have learned from nature to do these things, as soon as we developed sufficient technology to do it. Now, some might say that genetics is different, because it is so difficult. I would argue that at one time, building a dam was an insurmountable task for humans. We had to develop the appropriate tools before we could build dams. Genetics is not any different. Unlike the cotton gin, nature routinely combines and alters genes to create new varieties of organisms. In fact, nature can alter individual genes and even small parts of genes. We do not have a clue how small parts of genes interact to develop different life forms. Even Monsanto can do nothing more than search of gene sequences that do things and hope that inserting them in the right place will add the desired traits to their plants. Essentially, modern genetic engineering is nothing more that reverse engineering things nature has created, and trying to combine the "code" differently to get desired results. There is no invention going on here. It is all prior art. As with the dam, we are just adapting things nature has created to do what we want. Just because the tools for doing this were invented recently does not change the fact that we are doing nothing more than combining prior art in rather obvious ways. For instance, is it something novel to make a crop resistant to herbicides so that higher doses can be used to destroy weeds, given that the technology to do so exists? Is it novel to use genetic engineering to improve the taste, texture, or nutrition of food, given that the technology to do so exists? How many people have wished that some healthy food was better tasting? How many people have wished the junk food was healthier? If these are not obvious things to do with new tools capable of doing them, I do not know what is. So, now for the hundred dollar question: If nature manages to randomly produce something that Monsanto has patented, who does Monsanto sue? Nature will never randomly create a cotton gin, because it is too complex for natural processes to produce. Genes are not too complex for nature to produce (right, a seed is, evidently, less complex than a cotton gin; take that, opponents to natural selection). In fact, it is extremely probable that nature has produced "Roundup Ready" varieties of many plants throughout the millions of years it has been playing with genetics. Evidence has even been found that ancient ancestors of wheat, corn, and many other grains were much more nutritious than modern varieties (in fact, some evidence support the theory that the "grain" classification of food plants contains exclusively human created plant varieties; otherwise stated, all plants classified as grains are man made, thus the entire classification itself may have been created through human intervention).
Anyhow, allowing genetics to be patented is absurd. There are at least two legal reasons genes should not be patentable. There are multiple ethical reasons they should not be patentable, including the fact that it is impossible for most people to distinguish the difference between patented genetic material and public domain genetic material. It is like making laws against certain types of speech but not telling the people exactly what it is that is illegal to say (throughout history, tyrants have done this and similar things). Also, the transfer of genetic material is such an easy process that it is almost impossible to tell whether or not it has even occurred. Making arbitrary laws that are impossible to determine if they have actually been broken or not is the hallmark of an oppressive government. While this is not criminal law (which would allow the government to punish people on charges that are impossible to verify), it is still wrong. Technically speaking, if I used traditional plant breeding techniques to create an herbicide resistant variety of corn or rice, and if the random combinations of genetic material created in the process managed to match the genetic code of Monsanto's Roundup Ready variety of the same plant, I could be sued for patent infringement, even though I used a completely different technique without any means of comparing the two products. This is ethically wrong! This is actually not just a problem with genetic patents. It is not horribly uncommon for two people to invent the same thing around the same time. When this happens, the person that gets the patent papers in first wins. This is extremely unfair to the other person, especially when the cost of inventing is high. With genetics though, this is aggravated by the fact that most people do not have the means to tell when they are violating patents or not. Plant husbandry can take years to create what genetic engineering can do in months. The cost for both is ultimately very high. It is also uncommon for either to be used in a way that is really novel. Probably the most novel use of plants is using tobacco to produce cancer cells used to illicit an immune response. Nothing Monsanto, or any other plant producer, does with genetic engineering or even selective breeding is novel. Outside the realm of food, flowers are often bread for specific colors or scents. This is not novel. People like pretty and good smelling flowers. Within the realm of food, plants are engineered or bread for size, texture, nutrient content, flavor, and even aesthetic (colors, size, etc...). These things are also not even remotely novel. People have been successfully breeding food plants to favor one or more of these traits for thousands of years. It is neither new nor novel. Novelty is a legal requirement of patents. There may be some things that can be done with genetics that nature has not done and that has some novel unique use. Until at least one of these things is discovered, genetics should not be patentable at all.
Ultimately, gene patents are unethical. They amount to little more than a way for companies to sue people without much risk of those people being able to prove their innocence. Gene patents give great power to large corporations with a lot of resources at the cost of small businesses and individuals. It is a manifestation of a common form of government oppression and tyranny. Gene patents should be abolished.
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