Subject: Re: Examples needed against Soft Patents
From: Ben Tilly <>
Date: Thu, 30 Dec 2004 17:40:58 -0800

On Thu, 30 Dec 2004 11:12:11 -0500 (EST), Russell McOrmond
<> wrote:
> On Wed, 29 Dec 2004, Ben Tilly wrote:
> > But this rhetoric is actually _correct_!
>   I see where you are going, so I need a way to "innovate around" this ;-)
>   You are suggesting I talk about a policy of promoting "the best
> incentive" in a subject matter class, not discussing whether one specific
> policy provides incentives or not.

A nice phrase may be to describe patents as,:

  Patents work by robbing Peter to pay Paul.  Paul is standing
  in front of you and claims that he's done something worthy
  of being paid.  You don't know if there is no Peter, or 100
  Peters.  When it comes to software patents, usually Paul is
  lying (60-95% chance), and you're more likely to have 100
  Peters than none.  It isn't worth it.

>   Patents are always a way to provide a monopoly to stop competition.
> Competition also provides incentives for innovation.  Given these two
> potential incentives for innovation are contradictory (one was created to
> reduce the other), policy makers must do economic analysis to find out
> which of these provides the best incentives in a given subject matter.


>   Policy makers must recognize that having too much patenting can stifle
> innovation, otherwise they will fall prey to our actual political
> opponents which are the maximalist ideologues who believe that "If some
> exclusive rights are good, then more is better".


> > Tell that to Transmeta.
>   This is a matter of the tail wagging the dog, the exception changing the
> rule.  We see the same thing in genetic engineering compared to advances
> in traditional plant breeding techniques that don't carry with them as
> strong exclusive rights.

My point about Transmeta is not that it should set patent policy.  It is
that comparing what can be done in software and hardware is not an
obviously stupid economic position.  When you look in the embedded
world, Transmeta is just the tip of the iceberg.

> > For another example, I've heard that cellphone companies find
> > themselves making very non-trivial decisions about how much
> > they should be doing in hardware and how much in software.
> > They can implement it either way, and the economic tradeoffs
> > are not obvious.  Thus the two options exist for them in the same
> > economic context.
>   So?  There are often multiple techniques to achieve the same goals.  If
> you look closely at agriculture you will see that there are techniques
> where the same "go from A to B" can either be patented through genetic
> engineering techniques or only offered plant breeding rights when
> accomplished through traditional (in the opinion of many less risky for our
> ecology and economy)  techniques.

Same as above.  You were ridiculing comparing hardware and
software economically.  I'm pointing out that it is not a ridiculous
comparison to make.

> > I guarantee you that if you try to draw a lot of fine lines between
> > subject matter classes, patent lawyers will try hard to get their
> > products classified in the most advantageous subject matter
> > class, and you'll get legal chaos.  Nobody likes to be the one
> > who wrote a law that resulted in legal chaos.
>   There is already legal chaos far beyond what you describe - what else
> can you call a subject matter class with less than 40% good quality
> patents, and with people skilled in the art working in a minefield where
> their work can be squashed at any point by a competitor with a bad quality
> patent?  Only those with sufficient existing legal and monitory resources
> can survive, killing many upstart competitors.

I believe that you'd get worse legal chaos.  If you like we can
label this as something that we'll have to agree to disagree

> > No, I'm stating as a fact something that is a fact.  What is up for
> > debate is what significance to give to this fact.
>   We are talking about patentable hardware, and you are talking about
> something that can be created by an existing 4GL design system.
>   Please explain how something that is already largely automated in
> software can be considered "useful, novel and unobvious".  The important
> question is the last one -- is it unobvious, or is it something that many
> skilled in the art, using the same design tools, and given the same
> problem could not have come up with as well.

The items are produced to accomplish tasks.  They are clearly
useful.  The design process requires skilled input.  Often this
input will involve ideas that are novel and unobvious.

The result both is patentable and there are patents on such

> > >   You are saying that there is a difference between a process carried out
> > > by a human and a machine, but no difference between a process carried out
> > > by a machine and by policy (information process, software).
> >
> > Yes, and that difference is that we can manufacture machines
> > but we can't manufacture people.
>   This is an issue of technology for you then, not an issue of economic
> public policy where that policy must adapt to meet ever-changing economic
> circumstances.  When cloning and other genetic engineering techniques
> advance enough you believe there should be patents on manufactured people?
> Can you now tell me the difference between exclusive property rights on
> this patented human and slavery of the past?

You're putting words in my mouth.

I'm saying that technology has made the boundary hard to
discern, and we therefore have to figure out how to deal with
that fact.  I'm not saying what solution we should follow.

When we reach the same point in biology, we'll have a related
set of ethical issues to deal with.  I'm not saying what solution
we should follow there, either.

I'm just saying what the practical difference is at this point in
time from the point of view of human capability.

> > Since we can't, I'm willing to ignore that line as a theoretical
> > question for future generations.
>   I am not willing to ignore this question. Current patent laws were
> created at a time when the influence of software was about as relevant as
> the influence of "manufactured humans" are today, and yet this excessively
> outdated law is being used to grant patents on software.

Then you'll have to proceed into that aspect of policy without me.

> > I believe that you're wrong.  More specifically, I believe that there
> > are a large number of patents on hardware that was designed
> > this way.
>   There are many patents on a lot of ludicrous things.  Does the existence
> of the patent on playing fetch with a dog, or the patent on entertaining a
> cat with the "invisible light" from a laser pointer prove anything to you?
> All this proves to me is that current patent systems are seriously broken
> and that society has to currently pay the cost externalities of the legal
> chaos created by this.

I'm not sure that patents on things like cellular telephone
design, or DRAM chips, are obviously ridiculous.