What ales the patent system?

Like most other intellectual property journals, the Oxford University Press monthly Journal of Intellectual Property Law and Practice (JIPLP) has a somewhat mercenery tendency to sell itself for a price. Complimentary copies can be scrounged from the editor and free inspection copies can be picked up following a visit to the website -- but the basic principle is that you get what you pay for and that, therefore, if you don't pay, you don't get.

Right: the IPKat takes an active interest in the Great Free Beer Debate

Unusually, JIPLP is giving away an entire article as a Christmas present to the world. Says IPKat team blogger Jeremy, who edits JIPLP, "this article was just so funny, we couldn't keep it to ourselves". Accordingly you can read it now, without even waiting for Christmas, by clicking here.

The subject of this largesse is "The great free beer debate or, what ales the patent system?", by intellectual property master craftsman David Musker. Any similarity between the subject of this article and the software patent debate is purely imaginary, of course. Says the IPKat, it's brave of David to exchange the security of a career writing patents for the life of a fiction writer. Wait, says Merpel, aren't they the same thing?
What ales the patent system? What ales the patent system? Reviewed by Jeremy on Thursday, November 29, 2007 Rating: 5


  1. You will note that the beer being poured is not NASTRO AZZURO, which is the mark on the glass....

    Post-gulp confusion?

  2. Pah! If Mr Musker thinks patents are a good thing for innovation in the software industry, he's been spending too long with his beer glasses on.

  3. The last commentator should read what David writes before he jumps to conclusions

  4. @Anon 6:54 -- I did. In particular how he ends his fairytale:

    Devoid of protection, innovation at International Brewing and Micro-org withered on the bine. Meanwhile, Open Sauce beer became increasingly homogenized, as more and more brewers adopted others' recipes rather than developing their own. Some Free Beer supporters were shocked to see Gwynn Tortoise, the author of GUINNUX, found a company to sell cans of GUINNUX at commercial prices and apply for slews of beer patents. The world had come full circle—domination by a single variety of bland, uniform beer was back. It went beyond Europe: GUINNUX was replicated, free of charge, throughout the developing world, killing off any domestic innovation there and leading to a general reduction of economic activity due to widespread drunken torpor. The Free Beer movement had conquered the virtual world, but left it with a hangover and a bitter taste in its mouth the morning after.

    How did this storm in a virtual pint pot come to be? One should not assume that the virtual legislators, examiners, or judges made any of the key decisions under the influence of alcohol. One can only hope that they did so, rather than simply caring too little about innovation and caving in to vigorous though misguided lobbying. We can, at least, draw comfort from the fact that ours is the real world, and theirs is merely a humorous pastiche—our real-world equivalents of these colourful avatars of virtual Europe suffer from none of their drawbacks, and would never treat brewing (let alone important industries, like information technology) so shabbily.

    What Mr Musker's entertaining fable unfortunately fails to analogise are the distinctively characteristic economics of innovation in the software industry -- the dependence on integrating large numbers of rather abstract components; the copyright protection available against exact knock-offs; the typically short development, testing and product cycle timescales; the dangers of network effect and standards lock-ins; etc, etc.

    That's what made the opposition to software patents in the real world rather better grounded than he can present the opposition to beer patents in his tale.

  5. My impression, reinforced by the comment two above, is that everybody in UK knows what a free beer claim is, but hardly anybody elsewhere in the world. Then again, there are some things that are self-evident to IPR lawyers all over continental Europe, but of which the offshore islands are still ignorant. Long may the blogs live, to disseminate info, and burn off ignorance wherever it lingers.

  6. My impression, reinforced by the same comment, is that the anti-patent lobby has no sense of humour.

  7. You mean the anti-software patent lobby?

  8. Actually, it was deliberate. All the arguments presented by those opposing "software patents" could easily be applied to patents of all kinds. I have therefore come to the conclusion that the lobby is against patents in general. Arguments about the "distinctively characteristic economics of innovation in the software industry" are just obfuscatory, and lead nowhere.

  9. David, I am interested on how you would apply the following argument against software patents to all other patents:


    "Phil Salin opposed software patents on free speech grounds, claiming a government monopoly over the use of certain ideas in software was exactly equivalent to censorship of literary ideas. This was the first application of the concept of freedom of speech to software."

    If you can give me the URL of a non software patent which can be used to censor literacy works (such as books), I would be glad to hear.

  10. My impression is that the article is not funny. You also should take a former EPO president with more respect.

  11. @David 1:25

    That's very interesting. Do you think other industries could have got along as well as software has without patents then?

  12. To address the last two comments:

    i) I think people in positions of power are fair game for being treated as figures of fun, particularly when they are mere puppets of others who really control things.

    ii) Zoobab should really get out of the US-centric view of software patents. The 'free speech' argument is, in any case, a red herring. Name me a single person who has been prevented by a patent holder from expressing their views. Incidentally, I can come up with many non-software patents that could be used to prevent others expressing their rights to free speech. Here is one.

  13. @anonymous 5:34 (to use your own rather endearing terminology):

    In the absence of patents, other industries would have to deal with increased ruthless competition, where successful innovative products are copied by others who didn't have to invest the money in developing them. Exactly the same model works for software development, where many inventions implemented in software require large inputs of time and money to come to fruition. The open source movement is disrupting this model by giving away equivalent software (but generally of much poorer quality: see Linux and OpenOffice for examples; this is why they will never take over). Whether this is a good or a bad thing fundamentally comes down to a subjective and personal opinion. Individual programmers may want to have the 'freedom' to code and distribute anything they want, (whether for free or for money), or may want to work for big corporations. Most programmers (and I am guessing here) would rather earn a good living working for Microsoft.

    Incidentally, to get back to the point of this post, I think David Musker pokes fun at all sides of the argument. Grasping patent attorneys, idiotic political figures, surreal judicial decisions and misguided lobbyists all rightfully come in for some stick. Some people can take this whole thing far too seriously.

  14. As far as I know, pop music, television programme making, football and gambling are all large and successful industries in the UK, by and large without patents.

  15. Perhaps the last commenter doesn't realise the amount of technology behind the production of pop music, television programmes, football and gambling. There will be many many patents covering all sorts of aspects of these technologies. For example, how many patents do you think cover aspects of digital video broadcasting? What patents do not cover are the aesthetic works themselves.

  16. David - I think you may have missed my point slightly. To take the example of pop music - as I understand it, a successful record label is unlikely to have any patents of its own. Nor for that matter is a successful pop group. Obviously technology is involved, and it may well be that part of the success of a record label is down to the exciting and expensive equipment that it owns - equipment that may well be protected by patents and accordingly making money for the people who made it. But this same equipment is available to any record label who wants to buy it - patents aren't used by the players in the pop music industry to protect what they do.

    Further industires that sprang to mind since my last comment are tourism, film-making and, indeed, berr making. Tourism doesn't involve patents, and by and large film makers and beer makers do not rely on patents for their success. By contrast, manufacturing has plenty of patents, and it's hardly a UK success story at the moment.

    Of course, this is not to say that patents are of no use - but there are some industries that work well without them, even if they use tools from other industries that do have them.

  17. To take the example of pop music, patents would be of no use anyway, because the reason people buy the latest album from the Nordic Gibbons or whatever popular beat combo is current has nothing to do with technical considerations but with the music and the image associated with it. First one goes to copyright, second to trade marks, both of which are quite powerful enough to provide adequate protection for the product.

    Arguing that patents are of less or no use in some industries does not mean that they should be restricted in other industries where they are of use. This is because the business models are simply not the same.

    Manufacturing is relatively poor in the UK because of a long-term lack of investment, education and training, but not because of anything to do with a lack, or excess, of patents. More patents are filed by successful companies, but patents do not by themselves create successful companies.

  18. Meanwhile, over in USA, they are busy patenting tax avoidance schemes and film scripts then, presumably in over-reaction, finding claims to new and inventive electro-magnetic signal structures unpatentable. How political patentability is these days. Oh for the days when politicians left it to the experts, who were then able to deliver the EPC division of patentable from unpatentable subject matter. Through the prism of the current thrashings of the patent law re-makers in USA, the EPC division looks more and more like a tidy piece of work.


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