Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: <stephen@xemacs.org>
Date: Thu, 5 Oct 2006 19:22:56 +0900

Ben Tilly writes:

 > Please stop trying to guess why I thought so and actually **ASK** if
 > you care.

My bad.

Given that you refuse to claim qualification to judge, my curiosity is
*really* piqued.  Why *did* you think that the Cameron technology is
"oh-so-obvious and has been forever"?  (Please note that those words
are the syntactic referent of your word "so".  Presumably you didn't
quite mean that, but I'll let you disambiguate.)

 > > From the foresight point of view, you proposed a ten year criterion.
 > > The Cameron technology passes.
 > 
 > >From my point of view the question of whether the Cameron technology
 > specifically should get a patent is minor.

Of course any given patent application is minor.  However, discussion
of examples is usually a good way to illuminate general principles;
the Cameron technology was handy.  But I'll use your example. :-)

 > No, I don't understand why I'd have to concede anything in fairness.
 > I'm not redefining prior art.  I'm saying that if your implementation
 > depends in an essential way on technologies that have been on the
 > market less than 10 years, then you won't be granted the patent at
 > all.  It is an additional bar that patents would have to pass.

You'e using the same basic concept of "relevant existing technology",
defining it broadly when a broad definition makes it easy to support
denial, and defining it narrowly when a narrow definition makes it
easy to support denial.  That's true whether or not you use the same
term, and any patent advocate with a room-temperature IQ will call you
on it.

 > The justification for this bar is that with a new technology,
 > obviousness is too difficult for examiners and judges to fairly
 > judge.

That's not a justification for *this* bar, that's a justification for
finding a better way to judge "obviousness".  *This* bar is only
indirectly connected to obviousness.

The connection you draw is plausible, but I have to wonder if ten
years is the appropriate interval in a field like software where the
whole stock of software turns over on average 2.5 times in that
period.  (That number is by memory, originally from the U.S. Commerce
Department and the former Japanese Ministry of International Trade and
Industry.)

It's also not obvious to me that obviousness is monotonic in time.
Specifically, I would guess that any given dependent concept becomes
progressively easier to see for a few years until the "conventional
wisdom" congeals, after which it become progressively harder to see.
(I'm not sure whether this has anything to say about the value of your
idea for regulating patents.)

 > As you can see this criteria is entirely separate from prior art.

Sorry, I don't see it.  It uses the same basic concept.

 > > 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?
 > 
 > Because there are patents that I think are good.
 > 
 > What the patent system is supposed to do is create incentives for
 > ideas which are obvious once you see them, but which otherwise might
 > not come to market.  An example of a patent that I like is
 > http://www.patentstorm.us/patents/5812063.html.

Of course, by the ten-year criterion it doesn't apply to blue and
white flashes (Nakamura didn't invent the blue LED until 1993, and
didn't become "widely available" until the late 1990s).  How does your
criterion deal with that?  (That's a real question.)

I have to wonder whether it applies to any other color, either.  Were
any LEDs of sufficient brightness to produce "flashes" when embedded
in plastic of the right strength etc to serve as a component of shoe
sole available in 1988?[1]

 > You'll note that I came up with a suggestion for a non-adversarial
 > procedure that I think significantly improves the status quo in this
 > regard.

Sure.  But "non-adversarial" is not an advantage AFAICS, it's an
independent property that a process might have.

In fact, my feeling is that adversarial processes have a lot of
advantages here, as long as they're public.  (By obvious analogy to
academia, that being the innovation process I know best.)


Footnotes: 
[1]  And I know of "prior art" for claim 1 that dates at least to my
college days, making it pre-1979.  Cf. the selection "Skinny" from
Alex Bevan's Springboard album:

http://www.artistdirect.com/nad/store/artist/album/0,,341829,00.html

:-)