Buffalo Bull


Issue E.27 — Tuesday, 2018.07.31

Stealing Is In the Eye of the Beholder

It all depends on whose ox is being gored.

You’d think the Chinese, unable to think for themselves, were sneaking around at night, breaking into laboratories, and stealing the secrets from U.S. researchers and engineers. As might be expected of stories told by our own Ministry for Public Enlightenment and Propaganda, a.k.a. “the media”, the real truth won’t be found in any easy to find place. It’s all a matter of spin.

In plain terms, what’s really going on isn’t much about “stealing” anything. The Chinese are quite capable of developing technology: they make supercomputers, nuclear power, quantum communication satellites, medical imaging equipment, and other products to rival anyone’s. They have their own engineers, mathematicians, scientists, and technicians. They don’t need to steal anything: they already know how to do it. It’s not about learning U.S. secrets.

To explain what is going on, what irritates the U.S. President so much (or so he claims), we must go back about five centuries, when Europeans (including their American descendants) decided to take over the world. It is no accident that the beginning of geographic colonialism coincided with the beginning of so-called “intellectual property”. To the (mostly white) European mind, the inferior races of different hues didn’t really account for much: they were savages, un-enlightened, inferior in many ways, and incapable of understanding why the Europeans were so superior. It was quite natural for the colonial powers to sail around the world, claiming it for themselves. A Spanish, English, Dutch, Portuguese, or other ship would sail to this-or-that land, and plant a flag for the home country, claiming it for this or that European monarch, completely disregarding the fact that there were already red, brown, black, or yellow residents who might have had a different perspective on things.

In the homeland, the techniques of oppression parallel the techniques employed in the colonies. So the land is all bestowed to subjects at the pleasure of the King, whether at home or abroad. The idea of “monopolies” took root in ways never before seen, beginning around the Fifteenth Century, at the same time that European vessels began to sail the seas to take possession of far-off lands in Africa, Asia, and the Americas. Just as the Crown might grant a monopoly to one of the new “corporations” to settle some land or another, it became righteous for the Crown to grant monopolies or other kinds of licenses to practice certain trades or businesses: all, of course, for the orderly development of society and the betterment of the subjects, as was the will of God, and so on. Nowadays, we consider it “normal” and “ordinary” to apply to the government for a license or permit to operate some kind of business, with restrictions on some trades more onerous than those on others. If you wonder where the ideas began, that we needed special protection from unqualified hairdressers, that children needed government approval to operate lemonade stands, then trace those ideas back to colonialism, enclosure, and other ontogenies which arose during the evolution of the current class system.

Beginning around the Fifteenth Century, but at an increasing rate in subsequent centuries, kings used to grant various kinds of monopolies and licenses to their friends and to loyal retainers, for purposes of reward, profit, and retaining control in general. Just as it was obviously a proper thing to grant exclusive rights to the discoverer of a new land claimed in the name of the King, it was also, obviously, a proper thing to grant exclusive rights to the discoverer of a new idea or invention. In this way, patents were born. The term, patent, comes from the same term, “lettres patent”, used to denote the document used to grant other kinds of monopolies. Sure, go ahead and enjoy an exclusive right to your new invention, your new colony, your new mercantile endeavour.

Applying for a patent is equivalent to planting the flag on a new land, except that the flag is being planted on an idea. It seems natural to those who have grown up with the system for generations, until you look at the process more closely. Then, both ideas begin to show their absurdity. You might not want to know what goes into the sausages. Theoretically, colonialism, chattel slavery, and patents might have a certain logical charm, but the practice is something a little less attractive.

Now, there are some deep philosophical arguments which might be invoked to attack the idea of what has come to be called “intellectual property”, and these may be the strongest arguments of all, but I’m going to pass by these. This letter is too short for such arguments, so I’m going to limit myself to some shorter points.

(And, yes, I’ll get to Mr Trump’s complaint about China “stealing” U.S. technology, in a moment, after I’ve given it some context.)

The King doesn’t grant monopolies or licenses unless he’s getting something in return. Maybe it’s just the maintenance of the tradition of Royal Privilege & Prerogative, but it’s likely that, in return for, say, a monopoly on the trade in tea and cotton and opium with India, he’ll benefit in more concrete, pecuniary ways. In the same way, the reasoning behind granting a patent – which includes a monopoly right to use an invention – is that it encourages the development of “useful arts and sciences” by rewarding the inventor. A patentable invention must not be “obvious” to someone “skilled in the art”: in other words, it must be truly innovative, something new. It cannot already be known to others. The entire process is expected to benefit commerce, so it benefits, at least indirectly, the King. Sounds logical, right?

The way you get a patent is to apply for it. There are rules about how to describe the invention, and so on. You must show that you searched for an identical invention elsewhere and couldn’t find such a thing, you must describe the invention in detail, and so on. The application goes to a patent examiner or patent clerk, who checks the form and maybe the claims and research, and if all looks in order, then you get the patent. The patent examiner, who works for the Patent and Trademark Office, is very possibly overworked, and to some extent gets rated by his or her supervisors on the number of patent applications he or she approves; the examiner is also greatly outnumbered by the legal and patent departments of the large corporations who end up with most of the patents. Once you have the patent, you can sell or assign it to someone else, you can sell licenses to use the invention, and you can sue anyone else who uses the invention without your permission.

When the conquistadores and explorers planted their flags around the globe, they ignored the presence of the “savages” and “natives” who already lived in the lands they were claiming. The intellectual conquistadores do much the same. Look at a typical patent, which will have a section citing “prior art”, which is a list of related or similar inventions: the citations are largely from previous patents. However, in the real world, almost no engineers or scientists read patents to learn of the latest research: for that, the scientists and engineers will attend conferences, read technical journals, and confer with their colleagues. The leading edge inventors and discoverers are out of luck when in comes to patent-relevant prior art. If it doesn’t show up in the official databases, it can often be ignored in a patent application. It’s kind of like saying to the American Indians, “Well, you didn’t have North America registered with the Royal Academy of Surveyors (or whatever the land registry is called), so it’s ours now”. Never mind that the “savages” probably wouldn’t have been allowed through the door anyway.

Patents are based on a winner-take-all philosophy. If an invention depends on prior, non-patented work, then the inventors of the prior work don’t get any monetary credit for what they contributed. If a dozen inventors, scientists, technicians, and engineers made the invention possible, only the one who took the final step gets the patent: he gets all of the rights to the invention, even if he did only a tiny portion of the work. This contributes to a system which rewards the few over the many, compatible with the capitalist system which does the same thing. Most of the patents end up in the hands of large corporations. It is usually a requirement of employment that an employee assign his inventions to his employer, so the employee-inventor himself, or herself, usually gets very little for his or her creation.

The motivation behind the system is, in theory, to promote the progress of the useful arts and sciences by publicizing the nature of the inventions: the patent applications, once the patent is granted, are made public so that others may learn from them. But that’s only theory, because, as said above, almost no one learns science, engineering, or technology by studying patent applications. In return, the inventor of the final stage is rewarded with a monopoly: no one else for a certain number of years can legally use the invention without the final-stage inventor’s permission.

The system rewards lawyers and specialized technicians who manage, develop, litigate, and finance patent applications patents. The result is exorbitantly expensive drugs and medical equipment, electronic equipment which costs more than it should, and control of economic sectors by large operators who use patents as weapons: excluding would-be competitors by denying them reasonable licenses. Many patented inventions aren't used at all, but the patent itself is used to prevent their use: they're used to stifle progress. Most lawsuits against defendants accused of using an invention without a license are prosecuted by patent trolls, companies which merely own patents but which don’t use such patents themselves. (These are called “non-practicing entities”.) Instead of relying on competition and the market, the consequence is often monopolies, which can extract monopoly rents for their patents, making prices as high as they will go. When you hear about those extremely expensive drugs which cost the pharmaceutical companies almost nothing to develop or to make, but which are required to save lives, and which make obscene profits for the drug companies, patents are the basic reason.

The system doesn’t accomplish what it’s supposed to accomplish. Studies have shown, for example, that the economy as a whole would be better off if there were publicly-funded development of many products such as drugs: the products would be much cheaper, and the only losers would be the wealthy stockholders who might be able to afford fewer yachts, private jets, and palatial dwellings. Publishing a patent application rarely enlightens anyone about the details of the invention, so companies give up nothing in return. Patent litigation is extremely expensive, and large companies and law firms with deep pockets can threaten legitimate inventors with bankruptcy through lawsuits over bogus or illegitimate patents; often, legitimate inventors end up paying protection money for their own safety, even when they’re in the right, because they can’t afford the cost of litigation.

For the patent trolls, the plaintiffs who bring the dubious complaints, it’s just a game. Any beginning statistician knows that, even if the odds are fair, the guy with the deep pockets will win the game in the long run, because the other gambler will likely go broke first. But it’s worse than that, the odds aren’t fair to begin with. The patents are expected to describe an invention which isn’t “obvious” to someone “skilled in the art”. That’s a tall order for a jury, to see something as “obvious” when they aren’t experts. Of course, experts won’t be found on the juries. So the game is loaded in favour of the patent holder.

Summarizing, patents are a form of intellectual colonialism. The territory being claimed as a colony is intellectual, rather than geographic. The rules are somewhat arbitrary, and written to favour the colonial powers.

So what are these Chinese actually doing when it is claimed that they are “stealing” U.S. technology? Most of the time, what’s going on is that they’re fighting colonialism the best way they can, by asking for patent licenses as a condition of allowing their people to work for low wages to make goods for foreign controlled manufacturers. That way they aren’t simply comprador subjects complicit with their imperial masters: there is a semblance of partnership which allows them to participate in ways other than as providers of sweatshop labour, and they can use the licenses to build their own manufacturing operations. They can be capitalists, too. They have a right to do that, just as those in the U.S. have a right to negotiate terms when foreign companies come over to operate in the U.S.

On the other hand, the U.S. is telling the Chinese that they can have geographic sovereignty, but the Americans are still entitled to control Chinese minds.

So who has been stealing from whom? The colonial powers or their subjects?

Edit History:

Tuesday 2018.07.31 — Initial release.

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