Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: <stephen@xemacs.org>
Date: Tue, 3 Oct 2006 23:20:11 +0900

Norbert Bollow writes:

 > With "breakthrough insights" I mean very non-obvious insights on how
 > to improve existing practice.

I *know* what you mean by "breakthrough insights."  My point is that
nobody except the anti-patent lobby believes that patents should be
limited to such (eg, very few drugs are break-through insights;
rather, most are discovered by trawling through thousands of tonnes of
Amazonian muck and dropping droplets on Petri dishes full of
bacteria), and there's absolutely no foundation in U.S. or Japanese
law for such a policy.  Dunno about the EU.

 > > Nor are they about "creating marketable products".  They're about
 > > following through and actually doing the marketing.
 > 
 > No. Patents are about demanding royalties from competitors (and
 > sometimes even preventing them from selling their products), totally
 > independently of the quality of your products and your marketing.

Exactly.  And they're *still* about following through and actually
doing the marketing.  What you're missing is that one patent does not
a product make.  If your products and marketing suck, your competitors
can use an inefficient workaround to provide minimal functionality,
and whup your sorry butt into bankruptcy on the basis of overall
superiority.  Then they pick up your patents at distress-sale prices.

The only time "working around" is impractible is when the patent
pertains to a genuine breakthrough insight.  But even many FS
advocates will concede that they could swallow patents for those, if
they could be limited to those.

Your prize suggestion is theoretically reasonable.  Nonetheless, both
theory and long experience suggest that markets are far more accurate
at evaluating marketables than prize committees are.  The patent
system proposes to take advantage of this accuracy, at the expense of
granting monopolies as you describe them.  There is no theorem that
says that one outweighs the other.