Subject: Re: Examples needed against Soft Patents
From: Simo Sorce <simo.sorce@xsec.it>
Date: Thu, 30 Dec 2004 10:54:31 +0100

I hadn't enough time to fully read the thread but got to this message,
If previous messages already pointed out what  have to say or confuted
it, I apologize.

On Thu, 2004-12-30 at 04:13, Ben Tilly wrote:
> On Wed, 29 Dec 2004 19:20:01 -0500 (EST), Russell McOrmond
> <russell@flora.ca> wrote:
> >   Much of the current lobbying work on the pro-sw-pat side is based on
> > manipulating the idea that "patents exist to provide incentives for
> > innovation" to suggest that "where there are patents there are by
> > definition incentives for innovation, so it is unnecessary to study this".
> > Once we get policy makers to ignore this rhetoric and do the studies I
> > believe they will come to the same conclusions we have.
> 
> But this rhetoric is actually _correct_!
> 
> The possibility of getting a patent is an incentive for innovation.
> That is dead obvious - a patent is something valuable that you
> can get if you innovate.  That value is an incentive.  Attempting to
> debate this is a losing proposition because you can be made to
> look stupid.

This statement IS the problem.
You assume that patent = innovation, without any question!

This is simply not true. The fact that the patent system was thought to
stimulate innovation doesn't mean it is always successful or the best
instrument. Otherwise we had only patents and not copyright.

In facts patents chill innovation in specific sectors. Empirical
studies, as you probably know, show that innovation has dropped
dramatically in some companies when they started the patent game. A lot
of their previous investment in R&D went into the legal department
instead.

In the software case, innovation is highly progressive, the patent
system just put a 20 year stone on each development path a patent is
recognized to have chances to held. Nobody except, perhaps, the patent
owner go on trying to innovate that path because there is a tax to be
payed. I found this just a logic argument, very strange people do not
get at it. Generally I found out that people that do not get it are
people that never really was directly involved in programming, even
software houses managers often do not understand at all the technical
side of their own business.

> The *problem* is that others can use patents in ways that inhibit
> innovation.  The question is which effect matters more.

No, this is the direct effect, not a side effect. Whether you
aggressively use a patent or not once you patented the problem
(unfortunately this is what happen in the software field, the problem
get patent not the solution as in each other field) nobody will research
the problem again, research re-flourish if the problem get slightly
modified by new factors, but that's not so common.
In the US the problem has been mitigated by the fact that it took some
time to make the software patents stand firm and most of them are kept
by giant players, who, by definition are unaffected by patents because
of cross-licensing practices.

If the goal of the US system is to give a research monopoly to big
players raising impenetrable barriers for newcomers then probably the
patent system applied to software is a very effective measure.


Another humble opinion on the hardware vs software debate:

It does not make sense to draw a line between hardware and software.
The right line is between controllable forces of nature vs. logic.
If I patent a new device that solve a problem by using in a new way a
controllable force of nature, it does not matter whether most of it is
hardware or software controlled in the end. The patent will be given on
the process the control the forces of nature and that will be
concentrated on the specific physical actions taken by the device to get
the effect.

If I make a similar device (from the physical POV) and then change the
motherboard of the controlling part substituting 99% of it by software
on an FPGA then the patent still holds, as the claim is about the
physical process (if you fail to properly file the patent then that's
your problem not a law problem).

If you grant a patent just because logic is cabled in hardware but no
evident new way of controlling forces of nature is involved, then we
just have a (bad) software (logic) patent.

Circuits are protected by so called design patents that are at all
effects a lot more similar to copyright (as it should be).

So when you drive a line on logic vs new physical effects than you get a
lot easier line to draw a line very difficult to shift by lawyers.

Simo.

-- 
Simo Sorce - simo.sorce@xsec.it
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