Subject: Re: Novel anti-software-patent article
From: "Stephen J. Turnbull" <>
Date: Fri, 7 Jan 2000 12:38:26 +0900 (JST)

>>>>> "Ben" == Ben Tilly <> writes:

Sorry for the incorrect attribution, I seem to have lost part of the

    >> technology and new technology entering the public domain.  The
    >> expiry times for patents and copyrights should be long enough
    >> for companies to recoup their costs and make a reasonable
    >> profit, but no longer.

    Ben> Agreed.  (Although IMO copyright should last a lot longer.)

Why does everybody hate stockholders so much?  Aren't you all mostly
stockholders yourselves?

<LECTURE TOPIC="welfare economics">
I don't care _how_ much profit the companies make.  What I care about
are the _people_ out on the margin who _can_ afford to pay prices that
amortize the cost of developing new products using the technique, but
_cannot_ afford to defray the royalty and transactions cost of
negotiating a license on top of that.  Corporate profit is not a very
good indicator of this kind of social cost.

I think everybody who uses the Constitution's reasoning agrees on
this.  There are three problems with implementing this desideratum:

(1) Uncertainty means that _failures_ must also somehow recoup costs.
    This can only be done if the successes have large profit margins,
    even spectacular ones as in pharmaceuticals.  (Ben explained this

This is probably not really a problem, except that:

(2) Both cost/benefit ratios and uncertainty vary enormously, by
    industry on average, and by project, even within industries.  In
    principle, you could set terms industry by industry, or even
    patent by patent.  But this increases the ability to finagle the
    system by, eg, getting your company redefined as a drug company.
    Or it increases discretionary power of the (by definition poorly
    informed) Patent Office (I think they probably try very hard; but
    they can't afford enough specialists or Edison-level generalists.)

    Can it make sense to lump software in with pharmaceuticals?  If
    not, how do we deal with it?

I presently favor establishing a separate category of "software
patent" with very high hurdles of novelty and unobviousness (and
eliminating new patents on software until the new definition has
passed through the full legislative process).

(3) Treatment of marketing expenses.  Although the Constitution says
    to "encourage the useful arts", apparently meaning invention, the
    part about the public interest clearly indicates that what matters
    is _innovation_, not invention.  Xerox Star, Apple Lisa, Apple
    Macintosh, X Window System (to mention the ones I know) all had
    precedence, but what put a GUI on my mother's kitchen table was a
    combination of the marketing muscles of IBM and Microsoft.  (And
    big drop in memory and CPU prices, to be honest---but you see my
    point, I hope.)

I'm sure at this point Brian Bartholomew and I part company. ;-)  How
'bout the rest of you?

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