Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: "Ben Tilly" <>
Date: Mon, 2 Oct 2006 11:36:30 -0700

As loathe as I am to see this thread continue, I'll respond to one
point that I found interesting.  (And so it continues...)

On 10/2/06, <> wrote:
> Norbert Bollow writes:
>  > 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?

I believe that Norbert means that it doesn't achieve its stated
objectives.  The stated objective of the US patent system is, "To
promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries."  At least that is what the US
Constitution says, and that is where Congress gets its authority to
pass laws involving intellectual property.

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

As I stated above, the stated objective is as outlined in the US
Constitution.  I suspect that Norbert, like myself, believes that on
balance the patent system does not achieve that objective.  However
quantitatively demonstrating it is not easy.

>  > 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).

I do not think that (a) is involved.  However he has a very good point with (b).

When a market is just developing that makes certain lines of
innovation natural, you're going to see lots of people begin
developing along those lines of innovation.  We don't need patents to
motivate this work, and introducing patents into that situation is
likely to create more friction than useful additional innovation.
Also given how young the market is, obviousness becomes hard to

However if someone comes up with a new idea in a mature market, the
fact that nobody has done it before pretty much demonstrates that the
idea was not obvious.  And it is very arguable that patents are needed
for a new entrant to survive in that market.

It is hard to distinguish innovations that are being driven by current
market conditions from ones that come out of the blue.  But one proxy
is to look at the dependencies for the patent.  I'd like the patent
system a lot more if it, for instance, said that you cannot patent
anything that depends on a technology which is less than 10 years old.
 (I'd also like the patent system more if it wasn't insanely broken,
but we're talking theory now, not practice.)  For instance this would
have blocked the insane number of "do X on the web" patents that we
saw during the dot com era.  Sorry, but most of those were obvious.
And the fact that nobody claimed it yet just means that nobody claimed
it yet.

On the other hand if there is no prior art for your idea and it
depends on technologies that are at least a decade old, the odds are
much better that it is not obvious and market incentives are not
sufficient to get people to find it.