Subject: Re: Examples needed against Soft Patents
From: Ben Tilly <>
Date: Thu, 30 Dec 2004 10:13:36 -0800

On Thu, 30 Dec 2004 10:54:31 +0100, Simo Sorce <> wrote:
> 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
> > <> 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!

No, I don't assume that.  I'm saying that if you have innovated,
then you have the opportunity to obtain a valuable patent.

> 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.

If you read what I said carefully then you'd notice that not only do
I not equate patents with innovation, but I question whether
patents are in the end good or bad for innovation.

> 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.

Yes, we've been over this before.  As I think Stephen Turnbull
pointed out, if the patent system worked as designed then
you'd _expect_ patent activity to substitute for R&D because it
discourages wheel reinvention.

Equating money spent on R&D with progress is as bad a
mistake as the all-to-common attempts to measure how
innovative companies are by how many patents they get.

> > 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.

Many believe that preventing duplication of effort is a good thing.

Also there is a possible (I am not saying this is likely!) benefit to
inventing around patents - it results on multiple solutions being
looked at, and the second solution found may be better.

> 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.

This is not the goal of the US system.  But it is very definitely the
goal of certain players in the system...

> 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.

I have no clue what you mean by "controllable forces of nature".

Is electricity such a force?