Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: <stephen@xemacs.org>
Date: Tue, 3 Oct 2006 02:30:04 +0900

Norbert Bollow writes:

 > >  > If an "incentive void" exists, the first step should be to
 > >  > identify as exactly as possible what categories of innovations
 > >  > are part of that "incentive void".
 > > 
 > > First, in the U.S. and Japan, the status quo is the other way 'round.
 > 
 > Not really:  There is not currently a functioning

Yes, really, in the sense of the politics necessary to get any changes
made.  Malfunctioning by your standards is not a showstopper from the
point of view of the big players; they believe it can be reformed to
their benefit, as far as I can see.

 > But currently the status quo is that a software patents system
 > exists but it doesn't achieve its stated objectives.

Don't you mean that you think that it doesn't achieve the objectives
you think it should serve?

For example, in the U.S. the software patents system was created by a
court which decided that there was no legal ground for distinguishing
between hardware and software, and issued a decision requiring the
USPTO to abolish that distinction.  The court's objective---to
rationalize this wart in the application of the law---has been
achieved, without doubt.

You can say that's more dumb than rational, and I tend to agree.  But
that is the way that the American justice system tends to view these
matters, and in that sense the patent system is "successful".

So what are these "stated objectives" that the system doesn't achieve,
and by what criterion did you determine that failure?

 > > plunk into that void.  Tell me, how would you distinguish it from all
 > > the XML technology that everybody and his sister is working on?
 > 
 > Therefore, the distinction which I find is between features for which
 > there has been a market for quite some time now (cool, non performance
 > sensitive, XML-based features) and a feature for which the market is
 > only now developing (efficient unicode character conversion).

As far as I can see this reduces to the assertions that (a)
demand-driven innovations, not demand-inducing, innovations are the
ones that matter, and (b) demand will bring forth the corresponding
innovation in a timely way; there's no point in having it in advance.
I think both assertions are quite questionable, (a) more so than (b).

 > > We already have that.  In the U.S. it's called the NSF, in Japan the
 > > JSPS.  In Europe I'm sure you have one too.

 > Please provide details of why you believe that NSF and JSPS are
 > already doing what I'm proposing.

Basic research has been alleged to be underfunded by commerce for
millenia, most recently on this list by simo.  Thus the government
research foundations clearly are aiming at an incentive void.
Although they claim that they fund interesting proposals, in practice
the good ones do not; they fund researchers with a track record of
producing interesting results.  This isn't exactly what you proposed,
but it's similar enough that it seems likely that the results would be
the same: developers would be attracted to big wins "interesting to the
government referees", and distracted from getting product to market.

 > > That's the whole difficulty here.  Patents are not really about
 > > rewarding world-class innovations; as we have known for generations,
 > > those are their own reward, in fame, in fortune, or both.  The point
 > > is rather to provide incentive for documenting, accumulating, and
 > > promoting a large mass of small innovations.
 > 
 > But isn't "documenting, accumulating, and promoting a large mass of
 > small innovations" precisely what Microsoft, and all the companies
 > which try to compete with Microsoft, are doing?

Only if you drastically twist the meanings of "document" and "promote".

 > I don't agree with your assertion that an "incentive void" exists in
 > this area.

But that's not my assertion.  My assertion is that I see some evidence
that it does exist, and no conclusive evidence that it doesn't.  It is
therefore premature to jump to the conclusion that abolition is the
best policy for anyone except the FSB lobby.