Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: <stephen@xemacs.org>
Date: Tue, 3 Oct 2006 18:10:30 +0900

Ben Tilly writes:

 > 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, [...]"

Sure, that's the objective of the patent system.  But most people do
not doubt that the patent system does to some extent promote progress,
at least in some fields.  Now, Norbert specifically said the "stated
objectives of the *software patent system*".  If you applied that kind
of logic to IT, there wouldn't be any IT in the sense of CIO (how many
IT departments post *any* revenue at all to the accounts? they're all
so deep in the red, fire 'em all right now!)

I presented reasonable evidence that the stated objective of the
*software* patent system might be mere Emersonian consistency.  For
better or worse, the law in the U.S. is generally built on principles
of consistency.  So the horrible software patent system gets a free
ride vis-a-vis general principles on the (assumed for the purpose of
this paragraph, only) success of the general patent system.

The law and the economy are not software (as anybody who has done
requirements work knows!)  You cannot arbitrarily modularize them, and
fix the modules individually, nor will the political system treat
demands that it do so with respect.

 > 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.

But that's what I ask for, is a quantitative measurement.  Nor do you
have to show "on balance" in my case---as a member of the Cult of the
Invisible Hand, all you need to do is show that the net benefit is not
so big.  Now, there's no a priori reason why the burden shouldn't be
on the pro-patent lobby to provide it, but the politics and status quo
are such that it's on the abolitionists.

Can't we try for an achievable reform instead of the acid trip of
abolition?  The need for reform is easy to document, in fact,
politically you probably don't even have to (except to push IBM &cie
further in the desirable direction).

 > > 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.

You don't believe in demand-inducing innovations?  How do you classify
the (3M variety) Post-It note, or spreadsheets, or the web browser
(yeah, right, J. Couch Potato is going to get his giggles by down-
loading 10MB DNA visualizations and CERN preprints over his 1200 baud
line), or the general idea of killer app?

 > However he has a very good point with (b).

Well, I admitted that, and of course you think so!  (b) is the ideal
workflow for hackers with itches, so in an environment of free
software, it's likely that you're going to observe innovations that
address current needs, not innovations that elicit needs that people
didn't know yet.  Eg, the Cameron technology, which we've been told
several times is oh-so-obvious and has been forever.  Consider your
dependency criterion: is SIMD ten years old yet? Unicode is, and XML
is getting close.

 > 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.  For instance this would have blocked the insane number of "do
 > X on the web" patents that we saw during the dot com era. 

*guffaw* It's harder than that to unbreak an egg.  Here, just cite Ted
Nelson and you've got a couple decades leeway.

 > And the fact that nobody claimed it yet just means that nobody
 > claimed it yet.

That's elegant enough to be worth saying.  In fact, I've quoted you so
everybody will see it again. :-)