That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Mon Dec 16 18:40:40 UTC 2002

Rui Miguel Seabra wrote:
> On Mon, 2002-12-16 at 18:12, Arnoud Galactus Engelfriet wrote:
> > Patent law gives me that right, so I guess I have it. The
> > idea being patents is to encourage (technological) innovation
> > by providing a temporary monopoloy. Like the US constitution
> > puts it, "to promote the science and useful arts".
> I did not ask what law gave you that right, but *what* makes you think
> you have that right and that it should be protected by law.

I figured you did, but just after I finished the lecture on
how patent law works. Sometimes I get carried away, sorry. :)

Anyway, to clarify, I don't think any one has a natural right
to an invention. Patents are purely an economic tool, to encourage
the disclosure of innovations.

> Science and other useful arts have developed rather well from the stone
> age up to now, I'd say...

Patent laws in one form or another have existed since the
1400s. It is interesting to see that almost every Western
government since the 1700s has felt it necessary to get some
kind of patent protection.

> > With my monopoly I am able to stop others from practicing the
> > invention. This allows me to control the market, either by
> > forcing competitors off the market or by making them pay me
> > money (a license). So if I patent my invention, I can either
> > be the only supplier on the market (and thus make big profits)
> > or I can get lots of money from my competitors (and thus make 
> > big profits). Like Abraham Lincoln said, "patents add the
> > fuel of interest to the fire of invention".
> How exactly can you tell you're not violating someone's patent while
> implementing your "invention"?

You study earlier patents that issued for your particular field.
I know, today that's almost impossible due to the bad classification,
but that's the idea. Or you make a reservation and you wait for
someone to come after you.

> If that someone has a patent that you violate -- yes, even without
> intention -- can't he exhort that power in order to force you into
> cross-licencing?

Correct. But so can I, if he violates one of my patents.

> What if that someone has thousands of patents and/or is already a big
> business? Won't that mean that for some peanuts he got your idea, will
> make money from it, and you're left sobbing in the corner?

I would say that with a patent, you can sue the big guy and
make him pay you for using your idea. The fact that "suing
the big guy" is difficult has nothing to do with patents but
with the legal system in general (particulary in the USA).

> What if you don't have enough money to register the patent and someone
> learns about it and registers that idea first? Won't you be left sobbing
> in the corner as well?

Well, if I publish it, no one can patent it anymore. But maybe
I can try to find financial funding with the argument that with
a patent, I have a monopoly so I can pay him back if the product
takes off. 

(If I don't believe the product will take off, why do I bother
with it?)

> > So how can giving a monopoly encourage innovation? Well, in
> > return for the monopoly I must reveal my invention. After the
> > monopoly runs out, society is free to use my invention, and
> > because of my disclosure society *can* use my invention. Also,
> > because of my disclosure others can build upon it and do more
> > inventions.
> How long does a patent live? Isn't one year *a long time* in software?
> That software... could it not be obsolete by then?

Probably. And yes, this should be changed somehow.

> > Well, of course you can ask the question why patent law
> > works this way. I suppose the reason is that it seems to
> > match the principles of capitalism: people are greedy and
> > want to make money. So you offer them a way to make money,
> > and you ensure that that way also has benefits for society.
> Have you noticed that patent and copyright law protect monopolies? How
> many other laws do that? I may be wrong but most laws are not favourable
> toward monopolies...

Correct. In fact, the EU had to come up with a special exception
on the free trade clauses to allow intellectual property. But
the idea is to give someone a monopoly in return for disclosure
if his invention. This seems to be the best reward. We could give
him a medal. They tried that in the USSR, but it didn't really work.

So probably we should give the inventor money. But how much should 
we give? I don't know. So let the market decide. If the market
does not like your invention, they won't buy it, and so your reward
is small. If the market likes it a lot, you get a big reward.

Kind regards,

Arnoud Engelfriet

Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:

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