That anti-patent pamphlet I mentioned

Niall Douglas s_fsfeurope at
Tue Dec 17 23:04:55 UTC 2002

On 15 Dec 2002 at 14:16, Arnoud Galactus Engelfriet wrote:

> > The acid test in my view of whether a patent should apply is if
> > there is a striking resemblence. 
> I agree. That's where the claims come in: they define the
> invention, and if your device matches the claims, it infringes.
> If it does not match the claims, it does not infringe (ignoring
> provisions on "equivalence" for a second).

I think my definition of "striking" is quite different to that of 
patent law. Mine is much more narrow.

> > So for example, if Dyson patented his 
> > vortex vacumn cleaner then nothing should prohibit anyone else using
> > a vortex in their vacumn cleaner so long as it's substantially
> > different from the way he employed his vortex. 
> That's correct, *BUT* you have to take a look at the claims to
> see in which way he used his vortex. It does not matter which
> variation he sells. 
> If the claim says "characterized by means for producing a vortex
> in a chamber connected to the vacuum cleaner hose", then any
> vortex-based cleaner would infringe. Do you agree with this
> approach/

No, that is too general a patent in my view. Dyson could hold a 
patent for using a vortex in a space L x W x H for removing X grammes 
of dirt per metre cubed a second. That's fine with me and anyone 
producing a device performing similarly should infringe the patent.

If however a competitor produces a similar vortex-based product which 
extracts twice as much dirt with the same sized vortex, he should 
*not* infringe the patent.

That's for hardware though. Software isn't hardware, so different 
rules apply.

> > I know this isn't the 
> > case in reality, but it should be given the founding principles of
> > the patent system.
> You should not confuse particular embodiments as sold by the
> inventor with what the actual invention is. In Dyson's case,
> as I understand it the invention *is* that you should create
> a vortex to suck up dirt. So he should get a patent on that
> invention, because that is his contribution to society: "Hey
> people, you should cause a vortex in your cleaners, it sucks
> much better that way!"

My major problem with the patent system as a whole is it gives too 
much to the patent owner with not enough benefits to society. If they 
narrowed down what was patentable like above, there would be little 
damaging the patent owner so long as they held the best product.

> > > This is actually exactly what happens when somebody comes up with
> > > a new hardware widget. In the early 1900s, the German company
> > > Singer had the patent on the sewing machine. Before that, there
> > > were several patents supposedly covering the steam engine, and
> > > development of steam-based engines didn't take off until the
> > > courts determined which one was the steam engine patent. In 1907
> > > an American invented the supermarket and patented it. The
> > > transistor, in all its shapes and forms was patented, and nobody
> > > could use a transistor without paying royalties to Bell. There is
> > > still a big fight going on about who owns the patent to the
> > > semiconductor.
> > 
> > These are all good examples of what is bad for society. Patents
> > should be there to encourage entrepreneurship because *that* is good
> > for society. 
> How can the inventor compete with people who copy his invention?

If the copy is substantially superior, then via the usual channels of 
lower price or PR. Otherwise they should be doomed.

> > If one were to go with complete bans of all competing 
> > devices (for simplicity purposes), then a variable length maximum
> > duration should be in effect. For software, I think three years -
> > for something like vacumn cleaners, possibly ten. Twenty years for
> > everything is too much.
> That is quite possible. The reward should be sufficient to
> encourage innovation, but not so much that it outweighs the
> benefits to society.


> > I wasn't aware that there is any other law preventing say Dyson
> > producing his vacumn cleaner and then Hoover replicating the exact
> > design but sold for fifty euro less? I had thought patents were the
> > only thing preventing direct copies?
> The legal term is "slavish copying". It generally only applies
> if it's basically a clone in function & form. You could maybe
> also claim copyright or model/design protection against people
> who copy your device. Unfair competition may also apply.

That's /too/ narrow. I mean something in between.

> > In my view, there should always be scope for competitor improvement.
> > The reward still remains high enough for the inventor to keep them
> > interested.
> I think a better solution is that if you come up with an
> improvement, you should patent that as well. And that should
> give you a right to demand a license from the original inventor.
> This is called 'compulsory licensing'. 

Hmm sounds highly suspect to me. Doesn't give enough benefit to the 
person with the best technology in my view.

Let me be clear: I do support a form of patents on software. I 
believe protection from unpermitted mass copying is bad for 
entrepreneurship which I believe to be one of the best things about 
capitalism and something "free" software totally lacks. People on 
this list strongly disagree with my position but in my view no one 
has proved my logic wrong - it would seem our basic axioms differ but 
yet no one challenged the logic behind my own axioms. Hence, I am 
tending to believe I am right in my beliefs.

However, what I want to get across to you, especially as you are a 
patent lawyer, is that the entire patent system is broken. It is not 
hugely noticeable normally, but with software its "brokeness" becomes 
exaggerated to the point of being extremely bad for the industry and 
society in general. Now while software is not like any other 
patentable item and thus should have its own rule set, the 
application of traditional modes of thinking are merely showing how 
the logic behind all patents is just plain and simple broken.

There are many historical reasons why this logic is broken, some 
residing from not having thought through the matter sufficiently to 
powerful commercial interests tweaking things to improve their 
profits. Nevertheless, it in its entirity needs reform.


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