That anti-patent pamphlet I mentioned

[Simo Sorce]

On Mon, 2002-12-16 at 19:40, Arnoud Galactus Engelfriet wrote:
> Rui Miguel Seabra wrote: 
> > 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.

If you recognize that patent are an economic tool why you push them when
they are a detriment to economics?

> > 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.

Or someone felt it was easier to keep power through monopolies ...
I would not use the reasons that made 1400s or 1700s patents necessary
today, they would be in great contrast with democracy and even
theoretical capitalism. 

> > 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.

Do you have any idea of how much that cost? Who is economically able to
do that? Are you saying invention should be possible only for very rich
people and nobody else?

> I know, today that's almost impossible due to the bad classification,
> but that's the idea.

No classification can classify all the human knowledge and make it
easily accessible ...

> Or you make a reservation and you wait for
> someone to come after you.

What business can you build on such basis? It would be too much a risk
to afford, only real big players with hundreds of patents will be able
to research once the system is running, as they will be the only one
that can afford to cross license or afford the cost of the patent
system.

> > 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.

And if he does not violate any of yours?, If it is the only patent of
the poor inventor?

> > 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).

The problem is not suing the big guy, one of the distortions of the
patent system is exactly little guys that does not produce anything but
bother big guys asking money after they get a single software patent.

The problem is that getting a patent costs very much (especially here in
Europe), you may simply not have money to file a patent ...

> > 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?)

Just for fun?
Lot of innovation is made not for profit but for other reasons, why
should we block all motivations that are not money based?

> > 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.

But the current proposal does not say anything on that anyway.

> > > 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 make sense if progress lack, do you feel the software field lack of
inventions and progress?

> 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.

Nice example, unfortunately it does not match the situation.
In USSR there were economical problems not research problems.
We have the same thing here in West countries, it's called Nobel prize,
and it seem to be working really fine in motivating scientist!

> So probably we should give the inventor money. But how much should 
> we give? I don't know.

In proportion to the work needed to make the invention?

> So let the market decide. If the market does not like your invention,
> they won't buy it.

The market would have not made the space run possible, but it made a lot
of inventions possible without the need of patents, as you said you need
incentives, but patent is not necessarily a good incentive and it may in
facts be the contrary in many fields. Software is one of these fields.

Markets cannot regulate everything, if market were able to do so,
patents would have not existed.
Market is not healthy when there are monopolies either.

Simo.

-- 
Simo Sorce - simo.sorce at xsec.it
Xsec s.r.l.
via Durando 10 Ed. G - 20158 - Milano
tel. +39 02 2399 7130 - fax: +39 02 700 442 399
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