Subject: Re: Examples needed against Soft Patents
From: Laurent GUERBY <laurent@guerby.net>
Date: Thu, 06 Jan 2005 22:34:16 +0100

On Thu, 2004-12-30 at 18:13 +0900, Stephen J. Turnbull wrote:
> >>>>> "Russell" == Russell McOrmond <russell@flora.ca> writes:
> 
>     Russell>   a) Patent policy is *economic* public policy that
>     Russell> exists to provide incentives for innovation.  Different
>     Russell> subject matter exists in an entirely different economic
>     Russell> context, and thus economic analysis and not legal
>     Russell> analysis is needed to determine if a specific subject
>     Russell> matter class should be patentable.
> 
> That's a Napoleanic Code view which simply isn't the way common-law
> legal systems work.  AFAIK Canada's legal system owes far more to its
> English (common-law) heritage than to its French (Napoleanic), and the
> US is definitely English.

Well, the US constitution amendment dealing with monopolies on
immaterial things looks quite in the "economy" area to me:

<<
Section 8 Clause 8: To promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries;
>>

How do you measure "Progress" except by using "economy" concepts?
I see no difference between Napoleon and common law here.

Anyway, a small personal contribution on the technical vs non technical
debate, one slightly different way to distinguish would be by studying
the following question:

Q: How much does it cost per user for a great number of users at the
patent granting date to be able to use your invention assuming access to
all other inventions to date?

If the cost is low enough, it's an immaterial invention and no patent
can be granted (copyright and trademark apply where possible), otherwise
it's a material invention and a patent can be granted (assuming it meets
the other criterias for patents of course).

Laurent