Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: Norbert Bollow <>
Date: Wed, 4 Oct 2006 12:19:40 +0200 (CEST)

<> wrote:
> Ben Tilly writes:
(NOTE: The quotation snippets are all from the same posting, but I've
re-ordered them, in order to roughly order my comments by importance.)
>  > > As far as I can see this reduces to the assertions that (a)
>  > > demand-driven innovations, not demand-inducing, innovations are the
>  > > ones that matter, and (b) demand will bring forth the corresponding
>  > > innovation in a timely way; there's no point in having it in advance.
>  > > I think both assertions are quite questionable, (a) more so than (b).
>  > 
>  > I do not think that (a) is involved.
> You don't believe in demand-inducing innovations?

No, Ben simply pointed out that (a) was not involved in the scenario
and question that I was responding to, which was in reference to a
specific example of an innovation.  I have argued that that specific
example was a demand-driven innovation, and that this appears to be a
typical property of the software patents that I have observed "in the
wild" during the past decade or so.

Software patents are particularly problematic for demand-driven
innovations during the period of time during which demand for that
kind of innovation emerges.  Any attempt to achieve a meaningful
reform should provide convincing arguments that the proposed reform
resolves the problems in that area.

I believe that the most easily achievable reform which achieves this
objective is total abolition of software patents, but I certainly
won't mind if you figure out a more easily achievable way!

I certainly do not deny that demand-inducing innovations exist, and
that an incentives analysis for software innovations is incomplete
if that category of innovations is not considered.

> Can't we try for an achievable reform instead of the acid trip of
> abolition?  The need for reform is easy to document, in fact,
> politically you probably don't even have to (except to push IBM &cie
> further in the desirable direction).

Do you believe that it is possible, in any manner which is more easily
achievable than total abolition of software patents, to reform the
software patents system so that in the reformed system, at least some
kinds of software innovations are patentable, but it is not possible
for a company like Microsoft to impose essentially-unlimited
patent-related legal and/or other costs on an emerging Free Software
based competitor?

I would say that any software patents reform which does not provide
this _freedom_to_create_a_Free_Software_based_business_that_competes
with_Microsoft_ would be a distraction from solving the problems that
software patents create for Free Software based businesses, rather
than a contribution to actually solving those problems.

> The law and the economy are not software (as anybody who has done
> requirements work knows!)  You cannot arbitrarily modularize them, and
> fix the modules individually, nor will the political system treat
> demands that it do so with respect.

Good systems design practice necessarily involves designing complex
systems in terms of smaller components.  Nations which (collectively,
through their parliaments or other legislative processes) decide to
ignore this fact will in the long run not be able to compete
successfully in the globalized economy.

>  > I suspect that Norbert, like myself, believes that on
>  > balance the patent system does not achieve that objective.  However
>  > quantitatively demonstrating it is not easy.
> But that's what I ask for, is a quantitative measurement.

I'd be willing to work on trying to achieve such a quantitative
measurement, provided that someone paid me for doing this work.
Of course, this is not something that I, or any other individual
should be attempting alone; it should be a team effort.

How would one go about trying to achieve such a quantitative

>  > I believe that Norbert means that it doesn't achieve its stated
>  > objectives.  The stated objective of the US patent system is, "To
>  > promote the Progress of Science and useful Arts, [...]"
> Sure, that's the objective of the patent system.  But most people do
> not doubt that the patent system does to some extent promote progress,
> at least in some fields.  Now, Norbert specifically said the "stated
> objectives of the *software patent system*".

I'm in Europe, where there is no significant debate about the patents
system in general, but there has recently been a big debate about a
proposed directive (that's a kind of EU-wide law) that would have
given software patents a legal basis.

With "stated objectives of the software patent system" I intended
to refer to all the various good effects the proponents claim that 
software patents have.  The main claims are "more innovation" as well
as unspecified general benefits to the economy as a whole.

In other words, the reason why I referred specifically to the
"software patent system" is that that's what people (many of them
funded directly or indirectly by Microsoft) have recently been
stating objectives for.

> I presented reasonable evidence that the stated objective of the
> *software* patent system might be mere Emersonian consistency.  For
> better or worse, the law in the U.S. is generally built on principles
> of consistency.

Alright, so that was the stated objective of that one court decision,
but in the overall picture, among all objectives of the software
patents system that are being stated, this point plays only a
relatively minor role.

Anyway, if the goal was to achieve consistency, the U.S. have failed
abymally in achieving that objective.  While they may have made the
legal rules for software innovations consistent with the legal rules
for other areas where U.S. innovators are able to demand royalties
from the rest of the world, there is no consistency whatsoever with
those aspects of life where U.S. companies have no chance to demand
royalties from the rest of the world.  For example, U.S. government
representatives are working hard to pressure the rest of the world
into recognizing the patentability of software innovations, while
e.g. concerning freedom of religion no real effort is made.


Norbert Bollow <>             
President of the Swiss Internet User Group SIUG