Subject: Re: termless copyright and patents
From: <stephen@xemacs.org>
Date: Tue, 26 Sep 2006 12:27:02 +0900

Before I get into negative comments, I have a suggestion for your
consideration.

How about weakening the patent system in the following way?

    Every patent claim must include a list of search keywords, which
    are part of the claim (ie, keyword spamming will invalidate the
    claim).  If the *conventional* descriptions of the infringing
    practice do not intersect those keywords, the infringer gets a
    limited grace period in which to either license the patent or
    invent around it.  (A *conventional* description means one which
    is supported by citations from the technical literature or public
    marketing efforts prior to the date of the patent.)

Obviously there is a fair amount of work to be done defining
"intersect" and determining the grace period.

Aside from the obvious incentive for patent holders to make their
patents searchable, there's another interesting side-effect: there's
exceptionally strong pressure on the patent-holder to come to terms
early in the grace period, because the longer the patent-holder holds
out, the more the infringer is likely to have invested in, and the
more probably his success, at "inventing around".  (The legal wording
for "invent around" will simply be "cease practicing"; "invent around"
is used to evoke the economic incentives created.)

A variation on the theme would be to allow patent holders to amend the
keyword lists, in which case the grace period would start from the
date a keyword was added.

I admit that this does add further scope for inefficient litigation
(ie, over the applicability of the keyword lists).  But I think that
pragmatically it could be implemented, and could dramatically improve
searchability.

Thomas Lord writes:

 > But for the tweak to scope (a tweak the courts might well arrive at
 > on their own given just a tiny amount of discretion over punitive
 > damages)

They really don't have that discretion.

 > my proposal *strengthens* the patent system by creating
 > more options and more incentives -- all while carving out a space in which
 > software folks can play quite nicely.

But why would they want to?  That's Bezos's point (although Ben Tilly
has an even better point---"a business method innovation should pay
off immediately in reduced costs---and I've seen it happen scores of
times! ---so why bother giving it a patent!"  [Feel free to criticize
my paraphrase, Ben, but I think it's close.]  To the extent that
economic incentives are driving the process of developing software,
people will apply for patents[1] (even if they're socially
undesirable), and I see no particular reason why they should take less
than the whole patent.

For example, note that even if International Characters decides after
only five years to offer the Covenant terms to *all* implementations,
*the exemption of patent sharks from protection still applies*.  That
is, the International Characters patent still is a fishing license for
sharks.  They might not want to use it (legal action is expensive),
but I bet the FSF or the "Behelendorf Patent Liberation Foundation"
would be willing to pay "good and valuable consideration" (or even a
whole $1!) for that license.

 > Shorter terms, etc. are not *imposed* by my proposal, they are made
 > an option and there are positive incentives for choosing them.

I don't see such economic incentives, without weakening conventional
patents or making limited patents too easy to get.  Anything you can
do with a limited patent you can do with a conventional one.


Footnotes: 
[1]  I may be projecting here; while I was a grad student I applied
for (and got) the maximum GSL every year, while in every election from
1980 to 1992 I made at least one decision to vote for a candidate
primarily because his opponent was advocating weakening the means test
for GSLs. :-)