Subject: Re: [Freesw] priorart.org
From: "Frank BENNETT (フランク ベネット )" <bennett@nomolog.nagoya-u.ac.jp>
Date: Mon, 14 May 2001 16:11:00 +0900

On Mon, May 14, 2001 at 11:55:29AM +0900, Stephen J. Turnbull wrote:
> >>>>> "Frank" == =?iso-2022-jp?B?GyRCJVUlaSVzJS8hISVZJU0lQyVIGyhC?=  <Frank> writes:
> 
>     Frank> Does anyone know of studies that have been done on this
>     Frank> subject?
[i.e. the relative toughness of standards imposed by the PTO and the
Court of Appeals for the Federal Circuit, which hears all appeals from
PTO proceedings]

> There are game theoretic studies which just say what you just did in
> mathematics, and go on to look at equilibrium effects.  They do leave
> signs of the parameters ambiguous; it could go either way in
> principle.  Ditto for the equilibria, the results are very sensitve to
> modeling assumptions.  I am not aware of any literature in economics
> or referred to by economists that actually _measures_ the parameters.
> (Measurement would also be sufficiently sensitive to the model that in
> practice you should be able to get any measured result you want.)

Hmm.  I just took a quick look on Lexis for articles likely to address this,
and found: Rai, "Addressing the Patent Gold Rush: The Role of Deference to PTO
Patent Denials", 2 Wash. U. J.L. & Pol'y 199 (2000). The text of the article
is available online via http://www.acusd.edu/~arai/. The gist of the
author's argument is that the CAFC, by reversing key patent _denials_ appealed
from the PTO by would-be patentees has triggered the current flood of business
method and software patents.  This suggests that the court may be a
greater enemy of the information commons than the PTO.

Since, as I see it, a no-archival-measures strategy is only justified
if the court is a friend of the information commons, and the PTO either always
issues patents or behaves randomly, this leads me to come out firmly in favor
of projects like priorart.org.

It took me awhile to get there, but I'm comfortable on arrival.  :-)

Cheers,
Frank