Subject: Re: Examples needed against Soft Patents
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
Date: Fri, 31 Dec 2004 05:20:01 -0500


Small clarification below . . .

Seth Johnson wrote:
> 
> Ben Tilly wrote:
> >
> > > > > I do not believe that I started or ended with the conclusion that
> > > > > patent lawyers wanted a new type of monopoly.
> > >
> > > < SNIP >
> > >
> > > > > It is true that the line of reasoning was intended to result in a
> > > > > specific conclusion (that if you accept patents, there is no obvious
> > > > > reason to say that you shouldn't have software patents), but the
> > > > > intention has no bearing on whether the reasoning is valid.
> > >
> > >
> > > Ben, you have accepted a change whereby patent lawyers have
> > > started asserting numerous misguided ideas that basically come
> > > down to the notion that what's novel, nonobvious, etc. must be
> > > patentable.  But in fact certain things were excluded at the
> > > outset, regardless of how innovative they might be.  If we had
> > > not excluded pure abstraction, patents would never have been
> > > established in the first place.  A king giving one person an
> > > exclusive right to a pure abstraction would have been such an
> > > affront to plain reasonableness, that that would have been just
> > > the most direct demonstration to all those privileged enough to
> > > be engaged in any form of science, of that king's tyrannical
> > > character.
> >
> > I'm amused at this characterization of history.
> >
> > FYI, both patent law and copyright law started with various
> > kinds of nobility handing out various kinds of patents.  Many of
> > these patents were on things that were quite abstract, like the
> > right to publish a particular book for a period of time.
> 
> That's not abstract in a problematic way.  Everything has an
> abstract side and a concrete side.  We can only countenance the
> idea of a patent *because* the abstraction in claims to which we
> grant patents is an abstraction *about a concrete process* -- it
> has inherent limits (and non-ideality) in its concreteness.  That
> is, the idea of hooking this concrete, empirical gizmo up to that
> concrete whizbang.  Very general and abstract in a sense -- all
> gizmo plus whizbang processes are covered -- but only gizmo plus
> whizbang processes.  Both empirical and pure abstractions do not
> afford the sort of limits that would imply that people can
> accomplish things in different concrete ways.


In the last sentence I meant to say: "However, both scientific
laws and pure abstractions do not afford the sort of limits such
that patents on them would allow people to develop innovative
concrete solutions."


> 
> A particular book is a particular expression.  Not a problem,
> because people can express the same ideas in other ways, just not
> copy what's original about how that book puts things.  We have a
> similar way of allowing exclusivity that's not out of hand with
> patents, simply by the way we exclude certain subject matters
> prior to considering novelty, etc.
> 
> > As for whether giving patents on abstract things would be
> > cause for rebellion, there's a lack of perspective.  This is a
> > period of history where nobility could (and did) execute people
> > just because they disagreed on, say, religion.  And many kings
> > (and queens!) did.  Review why, for instance, bloody Mary got
> > her nickname.
> >
> > Compared to that, a few unfair patents were small potatos.
> 
> I didn't say a king wouldn't have done it.  Just that it would be
> pretty obviously tyrannical (and foolish).  So it's really not
> something that's a part of the patent tradition.
> 
> :-)
> 
> SEth

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