Subject: Re: The term "intellectual property" considered useful
From: "David H. Lynch Jr" <dhlii@comcast.net>
Date: Sat, 27 May 2006 02:17:17 -0400
Sat, 27 May 2006 02:17:17 -0400
Norbert Bollow wrote:
> However software *is* fundamentally different from material goods
> in that software can be copied an arbitrary number of times
> without depleting any scarce resources.  
      Most anything on a computer can be copied easily - that is an
attribute of any form of digital information and most anything can be
stored digitally now.
     
    Musicians compose on computers, authors write, engineers design. The
easy with which things can be copied - an asset and presumed curse of
software is now
    inherent to most everything intanglible.
   

> Together with computer
> memory being as cheap as it is today, this fundamental truth
> about the economics of software has resulted in a market
> situation where in order to be economically successful, software
> businesses have to provide software that incorporates *many*
> ideas.  In the context of this market situation, there are strong
> arguments against software patentability which are not applicable
> to other fields where inventions are currently patentable.
>   
    Engineered solutions incorporate many ideas. It do not see where
markets have made software different.


>   
>>     I am not currently aware of an argument against software patents
>> that I do not believe can be applied equally well to other types of
>> patents.
>>     
>
> In the field of software, patentability provably has a negative
> effect on innovation.  
    I may be wrong but I do not think there are actual studies to that
effect. Further I beleive there have been studies of patents in general
that have produced inconclusive results regarding any positive impact.

    I am also somewhat suspicious regardless. Lawyers, Politicians, ...
speculate on the deletorious effect of many radical changes. With rare
exceptions Laws do not drive economic growth. At best the steer it. In a
capitalist society capitol will always seek the best opportunities to
increase. The absence of patent protection may change where it goes, but
not whether innovation and investment occur.

> Given that the legal foundation upon which those software patents
> are based is neither a law nor a decision of the US supreme court
> but a decision of a lower court, the "train wreck" scenario is IMO
> totally unplausible, in the US at least.  Either the swpat-related
> problems (patent trolls etc) remain at a level which does not hurt
> the overall economy too much, or the court decision which led to
> software patentability will be reversed (this could happen either
> by a court decision or by a legislative act).
>   
    It extremely likely that there will be both legislative and court
tweaking of the system in the near future.
    It is extremely unlikely that either will result in radical change.
          Software will remain patentable. There may be some litigation
process related changes weakening patents.
    There will almost certainly be USPTO reform.

    But all of this is at the edges. Software patents will still be
granted at a rate that defies any serious review.
    New patents will still be issued that substantially overlap existing
or even expired patents. Regardless of procedural changes the preasure
of software patent applications will increase not decrease.
    The USPTO will increasingly be unable to do its job. Embarrasing
cases will emerge with multiple patents on essentially the same idea. At
some point the US software industry is going to actually start to
impliment proper software patent compliance review. That will prove to
be nearly impossible. Software development - which already suffers
greatly from the addition of any administrative burden will slowly spin
to a halt. We will see more offshoring - particularly to countries
without software patents - but even that is problematic as you still can
nto really use the results in the US.
If review processes were implimented the corporate complaints would make
those against Sarb-Ox. pale in comparison.
    When a significant number of fortune 500 corporations start to
complain, when enough software development leaves the US, then we may
see congress act. But even then it will likely take several 
unsuccessful attempts, before congress realizes there is no fixing the
system. By the time all of this finally takes place I will likely have
died of old age.

    So much for my view into the crystal ball.

> Generally speaking, even badly-designed and very buggy economic
> systems don't crash in a manner analogous to a segfault or a train
> wreck, as long as there is no globally-fatal environmental disaster.
>   
    With very few exceptions governments and economic systems can not
train wreck. No matter haw flowed and faulty, they are critical. They
blunder on really badly broken in some areas until someone gets arround
to fixing them. I think the train wreck at the US PTO has pretty much
already occured - though it will likely worsen.

>>           Regardless, at best my personal view is that the intellectual
>> property system does not actually work.
>>     
>
> It does not work as advertised: At least in the field of software,
> all statements about patentability being good for innovation are
> deceptive propaganda.
>
> However it works in the sense that it allows big corporations with
> many patents on important ideas to get a significant economic
> advantage from owning those patents.  If/when the system stops
> working in this sense, it will get changed soon after it stops being
> beneficial for big patent holders.
>   
    It is arguably deletorious to big corporations - and many are slowly
starting to realize that. A patent is both a sword and a shield. But it
is a better sword than shield.
    The revenue a large corporation can potentially raise from patents
is dwarfed by the risk of running afoul of one. In patent fights between
rival producers, the result is usually a draw.
    Each has their own swords as well as shields and large corporations
are risk averse.
    The big threat to them are the patent warehouses - intel's "patent
trolls". They have lots of swords and because the produce nothing they
need no sheilds. They can not be negotiated with.
    However, so long as you view ideas as property, I can see no
legitimate basis on which you can say you can not buy and hold patents.


>   
>> But you can not restrict connections for the purpose of fostering
>> ecomonic growth and accept the principles of free markets.
>>     
>
> I agree that a rational human mind cannot do this.  However legal
> systems are not the product of a single human mind.  They are the
> result of interactions between many stakeholders each working to
> ensure that the legal system provides a legal environment which is
> acceptable from their respective perspectives.  Most of these
> stakeholders do not particularly care whether the various
> philosophical ideas upon which the legal code is based are in
> contradiction with each other.
>   
    The US political system is actually based on difusing special
interests by creating as broad a competition between them as possible.
The US is not a democracy - though we keep selling democracy to the
world. But we have been slowly weeding out complex and arcane aspects of
our political structure under the misguided this improves our system.
The simplification of the system has actually made it more vulnerable to
being bought by special interests.




> I agree that besides other properties, an ideal legal system must
> have the property that it does not contain any such philosophical
> contradiction.  However I believe that the economics of legal
> systems are such that in the absence of divine inspiration it is
> not reasonable to expect a legal system without such philosophical
> contradictions to become established.
>   
    That I can agree with.

    I do not think I have argued that there can be no contradictions - I
hold opinions on most everything you can ask me. I hope most of my
opinions rest on principles. But some are much better formed than
others. And some may contradict. In use contradictions create friction.
Friction attracts attention and repairs.

    My big concern is not contradictions, but legal frameworks without
underlying values. The fact that my neighbor and I do not share exactly
the same values does nto prevent us from establishing a common loaw
based on those values that are shared. But when we decide we are going
to create a law without any basis in values I am very scared.


> Greetings,
> Norbert.
>
>   


-- 
Dave Lynch 					  	    DLA Systems
Software Development:  				         Embedded Linux
717.627.3770 	       dhlii@dlasys.net 	  http://www.dlasys.net
fax: 1.253.369.9244 			           Cell: 1.717.587.7774
Over 25 years' experience in platforms, languages, and technologies too numerous to
list.

"Any intelligent fool can make things bigger and more complex... It takes a touch of
genius - and a lot of courage to move in the opposite direction."
Albert Einstein



Norbert Bollow wrote:
However software *is* fundamentally different from material goods
in that software can be copied an arbitrary number of times
without depleting any scarce resources.  
      Most anything on a computer can be copied easily - that is an attribute of any form of digital information and most anything can be stored digitally now.
     
    Musicians compose on computers, authors write, engineers design. The easy with which things can be copied - an asset and presumed curse of software is now
    inherent to most everything intanglible.
   

Together with computer
memory being as cheap as it is today, this fundamental truth
about the economics of software has resulted in a market
situation where in order to be economically successful, software
businesses have to provide software that incorporates *many*
ideas.  In the context of this market situation, there are strong
arguments against software patentability which are not applicable
to other fields where inventions are currently patentable.
  
    Engineered solutions incorporate many ideas. It do not see where markets have made software different.


  
    I am not currently aware of an argument against software patents
that I do not believe can be applied equally well to other types of
patents.
    

In the field of software, patentability provably has a negative
effect on innovation.  
    I may be wrong but I do not think there are actual studies to that effect. Further I beleive there have been studies of patents in general that have produced inconclusive results regarding any positive impact.

    I am also somewhat suspicious regardless. Lawyers, Politicians, ... speculate on the deletorious effect of many radical changes. With rare exceptions Laws do not drive economic growth. At best the steer it. In a capitalist society capitol will always seek the best opportunities to increase. The absence of patent protection may change where it goes, but not whether innovation and investment occur.

Given that the legal foundation upon which those software patents
are based is neither a law nor a decision of the US supreme court
but a decision of a lower court, the "train wreck" scenario is IMO
totally unplausible, in the US at least.  Either the swpat-related
problems (patent trolls etc) remain at a level which does not hurt
the overall economy too much, or the court decision which led to
software patentability will be reversed (this could happen either
by a court decision or by a legislative act).
  
    It extremely likely that there will be both legislative and court tweaking of the system in the near future.
    It is extremely unlikely that either will result in radical change.
          Software will remain patentable. There may be some litigation process related changes weakening patents.
    There will almost certainly be USPTO reform.

    But all of this is at the edges. Software patents will still be granted at a rate that defies any serious review.
    New patents will still be issued that substantially overlap existing or even expired patents. Regardless of procedural changes the preasure of software patent applications will increase not decrease.
    The USPTO will increasingly be unable to do its job. Embarrasing cases will emerge with multiple patents on essentially the same idea. At some point the US software industry is going to actually start to impliment proper software patent compliance review. That will prove to be nearly impossible. Software development - which already suffers greatly from the addition of any administrative burden will slowly spin to a halt. We will see more offshoring - particularly to countries without software patents - but even that is problematic as you still can nto really use the results in the US.
If review processes were implimented the corporate complaints would make those against Sarb-Ox. pale in comparison.
    When a significant number of fortune 500 corporations start to complain, when enough software development leaves the US, then we may see congress act. But even then it will likely take several  unsuccessful attempts, before congress realizes there is no fixing the system. By the time all of this finally takes place I will likely have died of old age.

    So much for my view into the crystal ball.

Generally speaking, even badly-designed and very buggy economic
systems don't crash in a manner analogous to a segfault or a train
wreck, as long as there is no globally-fatal environmental disaster.
  
    With very few exceptions governments and economic systems can not train wreck. No matter haw flowed and faulty, they are critical. They blunder on really badly broken in some areas until someone gets arround to fixing them. I think the train wreck at the US PTO has pretty much already occured - though it will likely worsen.

          Regardless, at best my personal view is that the intellectual
property system does not actually work.
    

It does not work as advertised: At least in the field of software,
all statements about patentability being good for innovation are
deceptive propaganda.

However it works in the sense that it allows big corporations with
many patents on important ideas to get a significant economic
advantage from owning those patents.  If/when the system stops
working in this sense, it will get changed soon after it stops being
beneficial for big patent holders.
  
    It is arguably deletorious to big corporations - and many are slowly starting to realize that. A patent is both a sword and a shield. But it is a better sword than shield.
    The revenue a large corporation can potentially raise from patents is dwarfed by the risk of running afoul of one. In patent fights between rival producers, the result is usually a draw.
    Each has their own swords as well as shields and large corporations are risk averse.
    The big threat to them are the patent warehouses - intel's "patent trolls". They have lots of swords and because the produce nothing they need no sheilds. They can not be negotiated with.
    However, so long as you view ideas as property, I can see no legitimate basis on which you can say you can not buy and hold patents.


  
But you can not restrict connections for the purpose of fostering
ecomonic growth and accept the principles of free markets.
    

I agree that a rational human mind cannot do this.  However legal
systems are not the product of a single human mind.  They are the
result of interactions between many stakeholders each working to
ensure that the legal system provides a legal environment which is
acceptable from their respective perspectives.  Most of these
stakeholders do not particularly care whether the various
philosophical ideas upon which the legal code is based are in
contradiction with each other.
  
    The US political system is actually based on difusing special interests by creating as broad a competition between them as possible. The US is not a democracy - though we keep selling democracy to the world. But we have been slowly weeding out complex and arcane aspects of our political structure under the misguided this improves our system. The simplification of the system has actually made it more vulnerable to being bought by special interests.




I agree that besides other properties, an ideal legal system must
have the property that it does not contain any such philosophical
contradiction.  However I believe that the economics of legal
systems are such that in the absence of divine inspiration it is
not reasonable to expect a legal system without such philosophical
contradictions to become established.
  
    That I can agree with.

    I do not think I have argued that there can be no contradictions - I hold opinions on most everything you can ask me. I hope most of my opinions rest on principles. But some are much better formed than others. And some may contradict. In use contradictions create friction. Friction attracts attention and repairs.

    My big concern is not contradictions, but legal frameworks without underlying values. The fact that my neighbor and I do not share exactly the same values does nto prevent us from establishing a common loaw based on those values that are shared. But when we decide we are going to create a law without any basis in values I am very scared.


Greetings,
Norbert.

  


-- 
Dave Lynch 					  	    DLA Systems
Software Development:  				         Embedded Linux
717.627.3770 	       dhlii@dlasys.net 	  http://www.dlasys.net
fax: 1.253.369.9244 			           Cell: 1.717.587.7774
Over 25 years' experience in platforms, languages, and technologies too numerous to list.

"Any intelligent fool can make things bigger and more complex... It takes a touch of genius - and a lot of courage to move in the opposite direction."
Albert Einstein