Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: <stephen@xemacs.org>
Date: Wed, 4 Oct 2006 17:52:40 +0900

Ben Tilly writes:

 > On 10/3/06, stephen@xemacs.org <stephen@xemacs.org> wrote:
 > > Ben Tilly writes:
 > [...]
 > >  > > 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?
 > 
 > What I meant is that I do not think that (a) was involved in Norbert's
 > statement.  I'm not saying that demand-inducing innovations are not
 > important.  Just that they are orthogonal to what Norbert was
 > saying.

Ie, he doesn't believe they're important.  I really don't think
throwing away what is potentially the biggest benefit of a patent
system (each innovation being made earlier) is kosher.

Asking the right questions is almost always the hard part.  IMO, doing
so before anybody else does is what deserves the patent, not the
comparatively straightforward work that goes into answering them.
Doing so years before anybody else was going to even more so, but
unfortunately predicting futures that no longer *can* happen is even
harder than predicting futures that *will* happen, so we can't use
that as a criterion.  We're left with "first-past-the-post".

 > > 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.
 > 
 > That is not why I thought so.

I know that is not why you thought so; you thought so because reading
the description you find it easy to believe that asked for that
technology you'd come up with it.  But you didn't, nor did Tom, nor
Jamie.  So let's not talk about hindsight; it *is* orthogonal to the
issues.

From the foresight point of view, you proposed a ten year criterion.
The Cameron technology passes.

 > > *guffaw* It's harder than that to unbreak an egg.  Here, just cite Ted
 > > Nelson and you've got a couple decades leeway.
 > 
 > According to Wikipedia, the first software release for project Xanadu
 > was in 1998, so that egg remains broken.  Besides, all you need to do
 > is say that "depends on" in this case are dependencies for the actual
 > implementation.

You *really* don't want to go there.  That is the biggest breakage in
the current patent system: the fact that only patents are considered
prior art.  That's for pragmatic reasons: they're easier to search
than the whole CS literature for the examiners.  But you want to
enshrine even worse breakage in the defined procedure?!  Do you really
want the only thing that counts as prior art to be art that's actually
released?  You do understand that to get the interpretation you want,
you'd have to concede that in fairness?

There is no shame in just wanting patents to go away.  That's an
honest, and perhaps the most correct, point of view.  Why not stick to
that?

 > But I did have a point.  Which is that there is a world of difference
 > between ideas that nobody has claimed because nobody has gotten around
 > to it, and ideas that nobody has claimed because they really aren't
 > obvious.  The patent system is supposed to reward the latter and not
 > the former.  The problem is that the two can be hard to distinguish.

That's a structural problem, that we expect patent examiners to be
experts in technology rather than arbitrators among competing
experts.  Adversarial procedures have been proposed for a long time,
but few patenters like them for obvious reasons, and patent opponents
are chasing the will-o-the-wisp of abolition, so there's too little
grass-roots support for it to overcome the status quo.