Subject: Re: software patents in the wild
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Wed, 17 Aug 2005 12:37:03 +0900

>>>>> "Bernard" == Bernard Lang <Bernard.Lang@inria.fr> writes:

    Bernard> The patent fight is not finished.  Patents are a
    Bernard> competitive disadvantage for a coutry that has them,
    Bernard> while others do not.  If we resist long enough, the USA
    Bernard> and Japan will have to yield.

Heh.  We all wish.

The current system has (obvious) problems.  However, as in everything,
it's highly likely that there is a compromise that dramatically
improves efficiency without hurting operating profit very much.

    Bernard> But, of course, if you are infringing US patents, you may
    Bernard> not be able to use your program for business in the USA.

Which of course is the killer factor.  If the U.S. and Japanese
economies are otherwise very dynamic, they may suffer no competitive
disadvantage from patents whatsoever vs countries that don't have
patents.  Their multinationals can sell high in the protected domestic
markets and "make it up on volume" overseas.  I don't think there's
ever been a serious debate about the utility of patents as such in
Japan; the overriding factor is the need to export to the U.S. market.

This isn't just empty theory, either.  Note that the kick-ass economy
of all time, post-war Japan, was domestically mired in Shylock's
Middle Ages, protection out the wazoo, in forms even more crass than
patents.  "What's good for Mitsubishi is good for Japan."  But because
of the protected market, they were able to skim off enough cream and
reinvest it to deserve the title of "economic miracle".  (It's
possible that the debacle that followed the miracle was inevitable,
but that doesn't get the lost jobs of US and European autoworkers
back.)

And it could be worse than that.  If what you mean by "not having
patents" is withdrawing from the Paris Convention/TRIPs, it's quite
possible that companies with any U.S. presence at all would be subject
to being sued for infringement if they distribute patented goods
without license.

Not to mention the human factor.  While we all know that the return to
patents only yields a trickle to the actual inventors, we also know
that the hot research environment and ability to actually be employed
doing what they love is very attractive, even if they don't actually
get rich off the patents they produce for their employers.  How do you
say "brain drain" in Pakistani, Hindu and Portuguese?  Or "European",
for that matter?  (I know lots of hot young British and German
programmers in Tokyo, not to mention the Pakistanis, Indians,
Russians, Croatians, etc.)

No, I'm afraid that this is a "you bet your economy" kind of gamble,
unless you can get the US and Japan to go along for the ride.

-- 
School of Systems and Information Engineering http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.