Hacker News Reader

Comment by sillysaurus | Hacker News Reader

I think at the end of the day, there has to be some protection against unfair competition

Would you define "unfair competition"?

"Unfair competition" is a blanket term for various civil torts: http://en.wikipedia.org/wiki/Unfair_competition#Commercial_l.... It include things like spreading false information about a product or price fixing. I think copying technology could be fit into tort framework instead of a property framework as with patents. Instead of filing a suit saying: "I own this patent and he infringed," you'd have to file a suit along the lines of "he gained an unfair advantage by copying technology I spent a lot of time and money developing."

One of the nice things about torts is that they are very flexible. Common law judges have a lot of flexibility to look at actual controversies and tweek the rules to get the "right" results. Judges don't have any of this flexibility under the existing patent regime. The Patent Act says that basically anything is patentable, so judges have to follow the intent of Congress. Some important backstops against patentability, e.g. the exclusion of algorithms and laws of nature, are judicially-created, and moving patent law to a tort framework would give courts more leeway to create these sorts of exceptions in response to practical concerns.

Which of those offenses do you feel Raytheon, Rockwell, etc were guilty of?

I didn't say they were guilty of anything. I mentioned them to establish the nature of the market dynamic. Without some sort of protection for IP, product companies rule. And when it comes to hardware products, that means companies that have manufacturing/logistical expertise rule.

Without some sort of protection for IP, product companies rule. And when it comes to hardware products, that means companies that have manufacturing/logistical expertise rule.

Well, how is that unfair? Or are you saying it isn't? If it isn't unfair, then why bring up unfair competition?

"Unfair competition" is a term of art for a class of torts. The term arose because certain business practices were historically seen as underhanded or unfair. These days we'd talk instead in terms of market failures or inefficiencies. E.g. the torts of "passing off" or "trade libel" decrease economic efficiency by sewing misinformation in the market. Copying capital-intensive R&D implicates the free rider effect, and thus a tort aimed at keeping companies from copying technology instead of inventing their own would fall under the umbrella of of unfair competition.

Circling back, it's not "unfair" that product companies have natural advantages in the market. Arguably, it's not desirable for product companies to be able to further leverage their advantage by being able to copy designs and technologies from other companies. That let's them compete "unfairly" by letting someone else take the expense and risk of doing research then undercutting them by getting the results of the research for free. I think it's a good thing to have companies like ARM that focus on creating designs, but without some sorts of protections, companies like Samsung that focus on manufacturing and end-user products would be able to steamroll over those companies by copying their designs.

Reply on news.ycombinator.com