Subject: Re: IC's patent-pending technology
From: <stephen@xemacs.org>
Date: Wed, 27 Sep 2006 00:35:41 +0900

Jamie Lokier writes:
 > Thomas Lord wrote:
 > >    BUT, if without too many transaction costs, and with a capped risk, I
 > >    could innovate or author (patent or copyright) on top of Mr. Cameron's
 > >    invention  in  such  a way that I can help to support the price of his
 > >    public license and  get  a  cut of my own.
 > 
 > Imho that is an insight worth drawing attention to.  I would be quite
 > pleased to take that work further and get a bit of reward for myself
 > in the process.  Seems fair; seems like sharing based on invested
 > effort; seems like a motivator.  It's when doing that is effectively
 > forbidden that it seems rather unreasonable.

What in the world do you mean "effectively forbidden"?  The R&D is
explicitly permitted and royalty-free.  If you actually succeed,
patent/copyright the results and charge for licenses to them.  This
enhances their value and captures some rewards for you, too---exactly
what you (and Tom) wrote that you want.

That's about the best deal you're going to get.  Until you've got a
result, you're exactly even with the no-patent world.  Once you've got
the result, you have to pay the costs of getting the patent, which you
might lose if your estimate of the value of your variant is too high.

The remaining issue is to what extent can the prior patent extract
some of the rent that you would have gotten had your patent come
first, and how that affects the incentives given that you probably got
a big leg up on your variant from knowing the existence of the prior
patent.  Very hard to assess.  Note that your patent *per se* is in
absolutely symmetrical position to the prior patent---they can't
infringe your claims any more than you can infringe theirs.  So it
comes down to "how much of their claims would you have come up with
had you got there first?"  But that's a moot point; nobody is ever
going to give a definitive ruling.  Nobody is going to even be able to
say whether you would have got your patent at all if they hadn't come
first in many cases.