Patents

“Why patents”, you will ask, I am sure. You have never heard a sermon on patents in your church, right? If you open Sermon Audio and search for ‘patents,’ you will get ‘No matching sermon title found.’ Just like something we talked about before, the Right and Duty of Private Judgment. Well, the real scandal is about the Right and Duty of Private Judgment, of course, because it was a fundamental doctrine of the Reformation, so not finding anything on that topic shows the sorry state of what passes today for ‘evangelical’ or ‘Reformed’ or ‘Protestant’ churches in the US. It’s more natural to not find anything on patents, though, for patents . . . do they actually have any covenantal significance. Does the Bible speak of them at all?

And if you are rather confused why we should talk about patents in a podcast that is focused on covenantal, that is, ethical/judicial commentary on our modern world, it is because your ‘pastors’ or ‘leaders’ or ‘elders’ or whatever other self-designation they have, have never really made the effort to rise to the demands of their position and actually apply the Word of God to all of life. Patents are an important covenantal topic in our world today. They span over several areas of application of the Law of God, from the nature and purpose of scientific and technological development, through the nature of man as the agent of the Dominion Covenant, all the way to issues of property rights and theft, and also government interference, and specifically the executive state versus the Biblical, judiciary civil government. Studying patent law, and trying to discern good from evil in the modern patents laws, will give us a great deal of insight in many topics of Christian Reconstruction, and in expanding the Kingdom of God.

Patents, to be honest, have not been covered much by Christian Reconstructionist authors either. It is not because Christian Reconstruction, as a theological and intellectual movement, believes that patents are ethically or judicially neutral. To the contrary, we see every single part of human life and society as inherently religious, and therefore subject to the same spiritual laws and principles described in the Bible. (And ‘spiritual,’ if you remember the first episode of Axe to the Root, means ‘ethical/judicial.’) So the reason is not that we don’t see the area of patents and patent law as spiritual. It is rather that among the vast quantity of topics we are trying to cover, the topic of scientific and technological development has not been developed well enough, yet. We do have a general epistemological understanding that science and technology are only possible in the context of a Biblical worldview. We do have a philosophy of history that connects the prevalence of the Biblical worldview to the growth in inspiration in all areas of thought, including science and technology. It is not a pure coincidence that modern capitalism, with its better management of social resources and increased economic productivity first emerged in Protestant, and specifically Calvinist nations; for it to emerge, a specific set of beliefs is needed to become prevalent in the society. (Read my article on American vision titled, ‘Is There a Non-Christian Way to Fly a Plane?’) We have that general idea of the relation between the Christian faith and science and technology. However, we have not developed it in detail yet. Remember when I said in previous episodes that Rushdoony’s The Foundations of Social Order is the most unique book ever written in the history of Christendom, because it makes the connection between the theological development of the Christian faith and the social and political and judicial progress of the Western civilization, something that no Christian author has done before? Well, we need a similarly unique book for the foundations of scientific and technological progress. We haven’t gotten to it, yet. The comprehensive worldview that Christian Reconstruction sees in the Bible gives is such a vast array of topics to talk about that one generation of writers is not sufficient to cover all of them; and future generations will certainly have to cover topics that we today don’t even recognize as topics to start with.

In Axe to the Root, I will try to cover certain segments of the relation of the Biblical worldview to science and technology but I have to warn my listeners ahead of time: none of it will be as comprehensive and exhaustive as we need to develop it. As we are talking this week about patents, we will have to talk in part, and really short (in order to fit into the time frame) about science and technology and their relation to the Dominion Covenant. We will also need to get a closer look at the modern atheist/secularist view of science and technology and of their place in history. When we do that, we will see that secularism has a very specific religious view of science and technology. And when we see that, we will then be able to see that the modern patent laws are all based on that specific religious view of secularism. And once we see that, we will be able to understand the problem with them, as well as the Biblical solution to modern patent laws.

Let me first get something out of the way: are patents and patent laws important in our society? After all, we may be talking about a really small thing here, right?

Wrong. Take this: every year, inventors in the United States only file over 600,000 applications for patents with the US Patent and Trademark Office. Of these, about 350,000 get approved every year ‘ close to 1,000 a day. The total expenses for filing a patent until its approval can range from $10,000 to $100,000, with an average of about $35,000 a patent. Which means, if we only count the approved patents, we are looking at a whole industry of more than $12 billion a year. When we add the expenses on the unapproved patents, the total size of the industry may go well over $20 billion a year. To compare, the homeschool market ‘ literature, curricula, co-ops, online school, etc. ‘ is estimated at a little over $1 billion a year, and projected to reach $2.5 billion per year by 2020. The average annual work income of a patent attorney is estimated at $160,000 per year, and the average annual dividend of partners in patent law firms is estimated at over $500,000 a year. Are patents an important part of our economy and society? You bet. Just because we don’t see them mentioned too often doesn’t mean they are not important.

So, now, how do we approach the issue of patents from a Biblical perspective? And how do we analyze the modern patent legislation, its good sides, its bad sides, and the problems arising from them, and how do we look for Biblical solutions?

We start from analyzing the place of science and technology in the Bible, and the antithesis between the Biblical and the secularist view.

One common criticism used by atheists against the Bible is that the Bible never explicitly mentions science and technology. Therefore, the atheist argument goes, we can’t abide by it in our modern world, for it can’t really account for the complexity of our modern world which is so permeated and governed and conditioned by technology. The world is changing technologically, and therefore the moral and judicial rules must be changing, too. Therefore, Christians want to impose an outdated religion on the modern world. Unfortunately, the majority of Christians today have no answer to this claim, because they don’t have a comprehensive Biblical worldview. The Bible, indeed, doesn’t explicitly mention science and technology. It has no special moral rules for a world governed or conditioned by technology. So Christians who have no comprehensive, covenantal worldview, have no answer. The only answer you may hear from the pulpits from time to time is that God created all science and technology, and that science and technology can help the Gospel. But such answer is simply reactive, and it doesn’t provide an active interpretation and analysis of the rightful place of science and technology in God’s plan for history. After all, God created the sodomites too, and He has a place for them in His plan. But it is one thing to know that something is created by God, and another to know what place it has in God’s plan for history.

So what is the Biblical answer to this challenge? If it s true that our modern world has been so thoroughly changed by science and technology, and is so thoroughly governed by science and technology, while the Bible has nothing to say about that, what do we have to say about the modern world?

Science and technology are actually mentioned in the Bible. They are not mentioned in our modern cultural terms, as ‘science and technology.’ We will see a little bit later that our modern cultural terms are not really objective or morally neutral; they are the product of a specific worldview different from, and contrary to the worldview of the Bible. (Just the terms and their use, not science and technology themselves.) But the concepts of science and technology are central to the Biblical message in a covenantal way; central to such an extent, that the whole movement and direction of Biblical history are predicated on the centrality of science and technology to history.

In the Bible, however, science and technology go under their covenantal name: The Dominion Covenant.

One of the serious mistakes of modern Christianity ‘ including the Reformed, or the so-called ‘Reformed’ segment of it ‘ is to look at history as nothing more than the expression of God’s grace to sinners. As the Dutch theologian Klaas Schilder expressed it, in his book, Heaven: What Is It?, modern theologians tend to look at the original covenant, the Covenant of Work (as he calls it, instead of Covenant of Works), as a temporary covenant, while the Covenant of Grace is the eternal covenant, superseding the Covenant of Work. This is a serious mistake, Schilder said, and it is one that leads us astray. In his words, ‘the sequence of events must be explained by their beginning, if we would see whither they tend. . . . when we see the Covenant of Work as basic to all covenant relationship, we are on the right track.’

We don’t have the time to expand on this idea. I have talked about it in more detail in my sermon on Work. Translated, this means that we come to God not to just seek salvation. We come to God to be restored in His original intent for us, which is to take dominion over the earth as God’s representatives. Take dominion for what purpose? To put the earth and all its resources to productive use for a mankind that is growing to fill all the earth. (And its surroundings, perhaps.) The Garden was given as the initial capital for humanity. It had everything in it, capital goods (trees and animals), liquid assets (the rivers flowing out from the center of the Garden), monetary assets (gold and precious stones), and human capital (Adam and Eve were created as adult, mature beings, who could start learning and working and reproducing right away). If it wasn’t for the Fall, we would have had a mankind which developed science and technologies at an incredibly fast rate, to match its population growth.

In such a view, there is no special magic place for science and technology. Scientific and technological development, therefore, is just the natural state of a mankind that is not laboring under the burden of sin. And even under the burden of sin, mankind continues, in an imperfect way, developing science and technology. It’s work, like any other work; it is simply using the resources of God’s earth to increase productivity. And like any other work, it depends on many factors. One of the factors is the availability of human capital. A small population will only produce small advances in science and technology: an improved tool, a new ingredient to a metal alloy, an improved method of pasturing, etc. A larger population will have the larger brain power to apply to many areas at once and produce more advances, all other things being equal. This may be the reason for the apparent scientific lead of China and the Muslim world over Europe in the medieval period, which secularists today like to celebrate so much. Europe, after the devastation in the fall of the Roman Empire, plus several outbreaks of the plague, was a very sparsely populated continent compared to China or the Muslim world. Only in the 14th century, the continent lost about 40% of its population due to the plagues. And yet, on per capita basis, it still had a higher amount or science and technology produced compared to the Muslim world of China.

Which brings us to the other factor in scientific and technological development, namely, the religious and philosophical and ethical and judicial background that makes it possible. I am not going to expound too much on this, you can read my article, ‘Is There a Non-Christian Way to Fly a Plane?’, where I respond to Murray Rothbard’s challenge to us Christian Reconstructionists, on the religious foundations of science. I am going to jump straight to the conclusion, namely, that sustained scientific and technological progress is only possible in a culture that has the religious foundation ‘ the tenets of faith ‘ that, first, creates a foundation to legitimize science (philosophically and judicially), second, makes it intellectually and socially possible for individuals to do science, and, third, creates incentives for those who do science. Keep in mind that while China had many more scientific and technological discoveries, it was Europe that developed them practically and put them to everyday use. The best example of how the culture can kill inventions is the story told by Pliny the Elder about a Roman inventor who created a new metal from clay, shiny as silver but much lighter, and demonstrated it to emperor Tiberius. From the description, this was the first discovery of aluminum in Europe. However, Tiberius, who was afraid that such an invention would devalue his huge personal treasure of gold and silver, ordered that the inventor be put to death. It took another 1,800 years before aluminum was re-discovered. It was only Christianity that made it philosophically acceptable and socially possible not only to do science, but also apply it to technologies and thus improve the total productivity of the society.

From the perspective of the Bible, therefore, science and technology do not change the world, nor do they create a new world. The cause-and-effect relationship is the other way around: It is a world that is recreated and renewed that gives rise to scientific and technological progress. Science and technology do not appear out of magic; they emerge when a sufficient segment of society returns to obedience to the Dominion Covenant, and thinks, and works, and innovates accordingly. That’s the reason science and technology are not specifically mentioned in the Bible: because they are not a cause, they are only an effect. In the context of the Dominion Covenant, there is nothing separately unique or special or magic about them. The world has always had scientific and technological growth at all times, just like it has had any other kind of production or education or travel or roads or any other kind of activity. But a society which is faithful to the Covenant of God ‘ that is, the Dominion Covenant ‘ will eventually see a rise in all kinds of human activities, whether production or education or road building or art or music or . . . science and technology. The world today is not governed by science and technology, it employs them, because someone in the past has changed it and renewed it to make it possible. In covenantal terms, that is, in terms of ethics and justice, the world is just the same as it has always been, and there is no need for a new standard of good and evil.

And it is here where the antithesis is between the worldview of the Bible and the worldview of secularism and all anti-Biblical thought in general: Non-Christian religions and philosophies have no idea whatsoever where science and technology come from. Of course, in the first place, they don’t even have the explanation of why science should exist in the first place. Given a universe of no ultimate design or purpose, why should we expect such a universe to be favorable to man the more he studies and discovers its physical mysteries? Why should we expect any discovery to help increase man’s productivity and wealth, let alone all of them? This alone is a good question, an presuppositional apologists have dealt with it in detail. But the other question is even better: How does science and technology actually appear? What factor makes it appear? How is it that Scotland prior to the 17th century was a backwards nation on the edge of the civilized world, and the suddenly, for about 150 years, gave birth to a vast number of the world’s scientists and engineers, giving the world most of the inventions that fueled the Industrial Revolution? And how come today it is back to relative obscurity in terms of scientific inventions?

Not having any reliable ideology of why and how science and technology happen, non-Christians are reduced to a practical belief in science as some sort of a magic. In fact, popular movies today often promote the idea that what used to be known as ‘magic’ in times past, today is known as ‘science.’ But it’s not just the movies; even self-proclaimed rationalists like Isaac Asimov or Carl Sagan have promoted this idea in their books and articles. (To compare, the Bible specifically distinguishes between science and magic.) In the pre-Christian antiquity such magic was considered ‘black’ and malevolent; scientists could be suspected together with sorcerers of performing magic rituals and often executed in Greece and in Rome. It was Christianity that changed the views of the whole world concerning science and technology; by the end of the 19th century, almost all the pagan lands in the world had adopted the view of the superiority of science, and eagerly sought its fruits, even if they couldn’t plant its root. (The last major culture to surrender to the new view of science was, amazingly, Japan, after the Shoguns saw the destructive power of the Western ships and their guns.

Science and technology now became acceptable for unbelievers, but they still remain magic, and the factors producing science were still unclear. Karl Marx believed that scientific development was just a normal evolutionary development; when faced with the problem why some nations have it and others don’t, he ascribed it to genetic backwardness in some races, just like modern racists do. (Modern racism and nationalism is in fact old Marxism.) In other words, for Marx, genes somehow produced science and technology. The atheism emerging in the 19th century in fact promoted science from being just magic to the level of religion. It was in that period that the atheist dogma was born, ‘I don’t believe in God, I believe in science.’ That atheists needed a new religion to replace the one they rejected shouldn’t be of any surprise to any presuppositional thinker. That they chose science to be their new religion is nothing less than ironic; for the very science they chose to ‘believe in,’ was started and developed by the same Christian scientists whom they rejected and maligned. When the scientific method was being developed as a concept by several generations of scientists, and then crystallized by Isaac Newton, there wasn’t a single atheist thinker to add one single contribution to the work. What Christian scientists developed as a useful tool, atheists erected as their god. They may as well burn incense to a shovel; it would be just as meaningful. It was during that time that the concept of ‘nature’ was developed, as a self-existing, self-authenticating entity, to replace God. There is no god but nature, and science is its religion, became the dogma of the new secularists. (Read ‘The Myth of Nature,’ a small appendix to Rushdoony’s book, The Mythology of Science.)

Out of this religion of science or, as Rushdoony calls it, ‘the mythology of science’ came the belief that our modern world is somehow radically different from the older world, of that earlier mankind that knew no science. It is a sort of an Old Covenant / New Covenant situation: the Old Covenant is the old world that had no science, with just a few would-be scientists scattered here and there, and the New Covenant is the modern world where we have all this wonderful science. So just as the Christian New Covenant brings changes in the worship of God and in the application of His Law, in the same way, the new scientific world necessitates changes in the worship of the secularists gods, as well as changes in the morality of the times. And from there comes the claim that the Bible can’t be used for our modern world, because it has nothing about science in it. The magic has become a religion, and now Christianity and the Bible are assessed based on that religion, and are found to be ‘heretical’ according to the New Covenant of Science.

This so far was a rather long presuppositional background to the case of patents, but it was necessary for our understanding of modern patents. Why? Because, while the Bible views science and technology as just another activity of man in his Dominion Covenant, modern patent legislation views science and technology as an activity of a higher order, something very special that is over and above any other human activity. And since science is the new religion, expected to bring us redemption from the older, unredeemed state of lower science and lower technology, the modern governments make legislation about science turn into a special religious ritual. In some countries, even the official language of government legislation is unashamedly religious. In Canada, for example, one can’t work as an engineer unless being licensed and accepted as a member of a local engineering association, and some of these associations bear the names ‘orders,’ like the religious orders of the Roman Church. This licensing and acceptance is done through a secret ceremony (yes, a secret ceremony) involving a sort of secular religious oath to the order. Similar requirements are in force in other western countries as well, and in the US, there is also an organization called Order of the Engineer, which copies the Canadian religious rites for becoming an engineer. But it doesn’t stop there. Think of the graduation ceremonies in the modern colleges: from the special priestly robes to the speech (like a sermon) to the special rituals, they are all a reflection of that new religion of science.

And because modern governments look at science as some sort of a new and special magic, or even a religion of the modern world, that’s why modern patent legislation is designed so as create a completely new system of morality and justice in respect to science.

The presumed purpose of patent laws is this: Patent laws are meant to give incentive to researchers and inventors to make their discoveries and inventions open to the public. According to some interpretations, that’s the meaning of the word ‘patent,’ from the Latin verb patere, ‘reveal, lay open, make obvious.’ (Actually, the true origin is different, but that’s another story altogether.) The incentive given to them is a monopoly on the economic benefits stemming from their inventions and discoveries ‘ and sometimes even benefits from the non-economic use of them. The purpose, therefore is entirely pragmatic: the concern is not so much with property rights as with the expected public benefit from science and technology. Is this a problem?

This is actually the first and most important problem with modern patents: in their desire to create pragmatic incentives for inventors to make their inventions public (which stems from their view of technology as some sort of extraordinary, magic power), modern legislators ignore the justice of property rights in favor of pragmatic considerations. How so? Patent law grants exclusive rights not to the inventor himself but to the first person to apply for a patent. There is no real process to discover whether the filer is the same as the inventor. If an engineer works hard to develop a new process or a new machine, and a patent lawyer steals his plans and files for a patent, the patent will be granted to the lawyer, not to the inventor, because there is no legislation that allows for restoring the property rights of the inventor. This is an extreme case, of course, but another case has been awfully common over the last 150 years: when several inventors independently develop the same invention, and the one with the most unscrupulous lawyers and the most money gets the patent. This was the case with the telephone patent granted to Alexander Graham Bell. The concept of transmitting voice over long distances using electrical signals (also known at the time as sound telegraph or harmonic telegraph) was known to many people, and a number of inventors worked on it, and some were ahead of Alexander Bell. Some even had proven working prototypes years before Bell even had his plans completed, like Daniel Drawbaugh. (Drawbaugh was such a genius, he was one of the first to figure out how to use radiowaves to create a wireless telephone; his first prototype could work within 4 miles from the transmitter.) But while Bell was well-positioned as a university professor to use financing and legal services from his students’ parents, Drawbaugh was a redneck living in the woods who could never save enough money to file his patent. Before Bell filed his patent application in 1876, the Patent office received a number of ‘patent caveats,’ that is, a number of inventors were declaring their working on it independently. Apparently, there was no danger that any of them would hide their invention and not reveal it to the public. Thus, there was really no need for granting an exclusive patent to anyone, because the professed purpose of the patent laws was achieved even without a patent. But the Office eventually granted the patent to Alexander Graham Bell, effectively shutting all other research work. The monopoly of that unnecessary patent translated into a monopoly over all telephone service in the US and Canada by the Bell companies. Despite the claims by the leadership of Bell that this was for the better, the monopoly actually slowed down the technological progress in that particular area. In 1974, the year when that monopoly was finally broken, and competitors were allowed, the quality of telephone services was not awfully much different than it was 50 years earlier. Almost all the technological progress in that are ‘ including cell phones ‘ happened after the break up of that monopoly. America could have had cell phones as early as WWII, if it wasn’t for the patent granted to Alexander Graham Bell.

In short, in its professed purpose to make inventions available to the public, the state trampled on property rights and liberty, created an artificial monopoly which in turn stifled technological progress, contrary to the original professed purpose. You can’t have progress where liberty and property rights are destroyed.

The weird religious character of the philosophy behind modern patent laws is even better visible in the fact that it allows for patenting even a theoretical idea without its practical application. And thus, anyone who has the same theoretical idea but decides to develop it practically, will have to pay royalties to the guy who patented the theoretical idea but never developed it. Yes, even if it could be proven that the real inventor developed it independently. Thus, if 150 years ago someone decided to patent the vague theoretical idea that blades or vanes attached at an angle to a rotating axis could produce airflow (what we today know as fan), he could patent it without developing it in practice, and then everyone who actually developed it had to pay him a fee. And this actually happened in the United States, and it happened to the Ford Company in its very first years. In 1895, George B. Selden, a patent lawyer and son of the same powerful political attorney Henry Selden who defended Susan Anthony in court, filed for a patent for an automobile driven by internal combustion. His project was rather primitive and never tested in practice; it was the idea that was being patented. When the first makers of real working cars appeared in America, Selden used his patent to extort fees from them on every sold automobile. Henry Ford, however, refused to pay, which led to the most publicized court case in the first decade of the 20th century. The judge decided in Selden favor, declaring that the patent covered every automobile propelled by an engine powered by gasoline vapor. Henry Ford appealed by putting up a bond at the gigantic for the time sum of $350,000, and 8 years later won. One of the factors for the win was that Selden was never able to produce a working prototype of his patent. But he was granted that patent nevertheless!

The lunacy of this characteristic of patents can be clearly seen when we compare it to property rights in other areas. For example, land ownership. Imagine the era of the Homestead Act. Huge tracts of land, never explored and never settled. People who want their piece of land can get all their belongings and move to that piece of land, and claim it as their own, after they have built their house on it and have a plow on it. Once they do that, they can go to the nearest title office and lay claim to their 160 acres of land.

Now imagine a person who just walks into a title office and gives the geographical coordinates of a lot and asks for a title on it. He has never been to it. He has never seen it. He has never applied any kind of tool to it, whether a plow or an axe or a pickaxe. He only has the theoretical coordinates, and that’s it. Or, to make the analogy even closer, not just a lot but a whole region. (Because a theoretical idea might involve much more than a single specific invention.) And then, when other people move into that region, he sues them for rent, even though he has never been in that region, and has never done anything to improve the conditions of life in it.

That’s how the modern patents on theoretical ideas look like. And they certainly don’t help science and technology. To the contrary, they stifle scientific progress. As Henry Ford testified concerning George Selden, [QUOTE]’It is perfectly safe to say that George Selden has never advanced the automobile industry in a single particular…and it would perhaps be further advanced than it is now if he had never been born.'[END OF QUOTE] Well, it would be perfecly safe for us to say that if patent legislation didn’t allow a patent to be granted for just a theoretical idea, George Selden wouldn’t be able to cause the damage he did.

We shouldn’t be surprised by such results, however. Once government legislation is based on a false religion, we should expect that whatever good intentions are claimed by that legislation, the opposite results will come around. Marxism professed to defend the workers’ class against the rich capitalists; what it created was a system that exploited the workers more than any capitalist has ever exploited them, without any hope of negotiations for better conditions or wages. The apartheid in South Africa professed to defend the rights of the poor whites (contrary to what many today believe, the apartheid was a socialist system), and yet it produced a permanently poor white class chained to a life of dependency and lack of vision or purpose for their lives. Labor legislation in the US proposed to improve the conditions of the factory workers, and yet it led to a mass exodus of jobs as American companies gave up on negotiating with the unions and the government and outsourced to other countries. We see the same process going on now with Trump’s administration: most of his policies that are supposed to ‘put America first,’ in practrice only hurt American citizens, families, and companies.

In the same way, as patent legislation was proposed to lead to faster pace of scientific and technological growth, in the majority of cases, it only stifled growth, as inventors spend more time and resources running the race to get monopoly grants from bureaucrats to kill all competition, rather than develop their ideas in practice and making them available, serving as many people as possible, and making money in the process.

There’s more to be said about it, but we don’t have the time. Hopefully, the main presuppositional antithesis is clear.

What is the Bible’s solution to all this?

The Dominion Covenant, in the first place, doesn’t presuppose anything magical or special about the invention process. It is work like any other dominion work, whether tilling the earth or making a tool. There have always been new inventions in history; for example, Lynn White, in his book on Medieval Technology and Social Change about several such inventions. There’s nothing so special about thiose inventions as to claim that the world is ethically changed by them so as to require a new system of ethics. To the contrary, science and technology themselves are the product of an already changed world. There is no need for new and special laws to protecct inventions, and certainly, there is no need for new and special laws to pragmatically encourage scientists and inventors to publicize their inventions anymore than there is a need for new and special laws to encourage farmers to work their land and take produce to the market. Just like a farmer is foced by the market ‘ by the competition of other farmers ‘ to produce, if he wants to stay ahead of other farmers who are his competitors, in the same way an inventor is forced to make his inventions public. The risk is that if he keeps them secret, his competitors can develop their own alternatives and get a lead over him on the market. Competition in the free market, not monopolies in a closed market is what brings the best productivity and ingenuity out of people.

Property rights still have to be defended, if justice is to be maintained. But just like everywhere else in the economy, property rights do not apply to general concepts. Group property over general concepts have always been characteristic for pagan religions, and has been at the foundation of collectivism and injustice. The Masai of East Africa, for example, believe that they were granted, by their god, an exclusive right over all cattle on the earth. That is, they have the patent on all cattle. Thus, all non-Masai who hold cattle are in a state of ‘patent infringement.’ Over the centuries, this has been the practical justification for the raids the Masai have conducted against their neighbors for stealing cattle. As of today, the Masai have the largest number of cattle per capita of all cultural and national groups on the planet, because of their predatory practices, fueled by their mythology. While we may laugh at the backwardness of their beliefs, let’s not forget that it was the same beliefs that supported George Selden’s general patent on the idea of the automobile. If anything, the Masai were more justified in their beliefs, given that they can practically prove that they are among the most skilled cattle herders on the planet. US patents don’t require such skills, as was obvious from Selden’s example.

Thus, property rights, if they are to be protected, should only apply to specific practical inventions and scientific developments whose author and owner can be clearly proven. If several inventors develop something ‘ like the ceiling fan ‘ independently of each other, then each one has property rights only over his own specific plans and draftings and diagrams. That is, his being a few days ahead of his competitors doesn’t constitute a moral right of being the owner over their independent inventions. (Besides, could it be that he was a few days ahead only because his concept was of lower quality and needed less time to develop? If so, then a patent would only harm the consumers.) Independent inventions of the same concept must be treated as indepenent and all given the right to be marketed and make profit for their creators.

Theft, then, in such a judicial system, will constitute only the stealing of specific prepared plans to use them against the wishes of their owner. While no one can prove that an idea was stolen from his brain, proving that specific plans and draftings and notes were stolen is much easier. If the specific plans for a ceiling plan of one inventor suddenly appear in the production line of a company, and it is known that that company had access to his workshop or draft room, then the theft is clearly proven.

There was actually such a case in the 1960s and the 1970s, involving the same Ford Motor Co. we talked about earlier. In 1964, Robert Kearns, a former CIA agent, filed a patent for intermittent shield wipers for cars. The electrical diagram he submitted was very clear (you can find it online: Patent US 3602790 A) and it was ingenious and unique. It was also working, for he had created several working prototypes and they were proven to work. He immediately contacted Ford Motor Company and Chrysler, trying to sell to them his invention or at least license it in a joint venture with them. Both companies rejected his request, but kept the plans, and a couple of years later started installing his system on all of their cars. Kearns then took them to court. He defeated Ford Motor Company in court for a verdict of $10 million, and later defeated Chrysler for a verdict of $20 million. By 1995, he was a rich man thanks to the dishonest practices of the two automakers and his court victories against them.

But in his case, there was a specific diagram and specific working prototypes. Ford here were not dealing with a George Selden-type patent vulture, they were dealing with a real inventor who had provable rights over his invention. Kearns’s case is the best example of how we are supposed to protect the property rights of inventors, without stifling competition and slowing down progress. Property rights only over specific property, against provable cases of theft.

More can and must be said, but it will be in a future episode. To summarize, the modern patent law is based on fallacious presuppositions: that science and technology are a sort of magical activity in the world, and therefore have some magical impact on society, creating the need for a completely new system of justice and righteousness. For this reason, modern laws protecting patents don’t really protect property rights; they rather encourage theft and unscrupulousness. The result is that they really stifle the invention process. A Biblical solution to the problem is to treat science and technology as just another human activity in the cotext of the Dominion Covenant, and apply to them the Biblical rules for protecting property: property is specific goods and services created by specific individuals, not general ideas or concepts without any practical utility. Only then we will have both the incentive to innovate and the freedom to apply it, for a world of better productivity.

The book I will asign for rading this week is R.J. Rushdoony, The Mythology of Science. Science, as you should know by now, is not religiously or morally neutral. It stems from specific presuppositions and tenets of faith. When the Christian faith is lost, science becomes nothing more than magic. And when magic becomes the foundation of legislation, it produces disaster.

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