Subject: Re: Examples needed against Soft Patents
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
Date: Fri, 31 Dec 2004 20:57:20 -0500


Ben Tilly wrote:
> 
> On Fri, 31 Dec 2004 04:56:49 -0500, Seth Johnson
> <seth.johnson@realmeasures.dyndns.org> wrote:
> >
> > It's supported more than you might think.  For instance, I hold
> > that the manner in which patent practice has excluded certain
> > subject matters at the outset, reflects the fact that certain
> > things were understood to be intrinsically unbounded, inherently
> > the common good of mankind (logic, scientific laws, rationality,
> > etc. -- abstract, general and ideal things).
> 
> I believe that those things were understood to not be humanly
> invented.  By contrast a useful piece of software is humanly
> invented.  The distinction is subtle, and a correct answer will be
> hard to pull from the historical debate because people tend to
> not clarify questions that they didn't think of.


It's not as if nobody had a thought for the nature of knowledge! 
:-)

The distinction you bring up is actually just another way of
acknowledging the same basic truth.  Discovered principles,
whether empirical or pure, are not humanly invented.  They are
also intrinsically common goods, and many would observe that both
results derive from the same nature I cite.  And they have always
been understood as such.  That's actually a point that's
perennially revived throughout history, and it's not about to go
away . . .


> > > For a random instance, US patent 1,647 issued in 1840 seems to
> > > be about something that's pretty abstract.  (That's the patent
> > > on Morse code.)
> >
> > Yes, what's happened is, many things were patented that might
> > have been suspect to some folks at the time, but now are much
> > more plainly suspect.  The Morse code patent we now can see in
> > terms of symbolic processing -- that it's a set of symbols that
> > can be used like code to be automated.  But at the time, it
> > seemed much more like a particular technical solution to a
> > problem.
> 
> Do you have documentation that people at the time questioned
> whether Morse Code should be patentable?


No.

But I'm a little lost here, wondering why you call for
documentation given what I'm actually saying, not to speak of the
fact this is a forum of like-minded advocates.  I will do due
diligence at a time when I am required to dispatch the foe.  I'm
actually not convinced that having documentation will be all that
critical when that time comes.  It really only requires the
policymaking fora to open up, when they have been scrupulously
kept privileged the past twenty years.  Then put the point
across, and it delivers.

I've already observed similar effects.  When the Commerce
Department was considering sanctioning "content control" in the
broadband Internet here in the States, NY Fair Use brought about
a gathering of information freedom representatives with them, and
I essentially said very similar things, pertaining to copyright
("copyright doesn't cover information" actually goes very far). 
And we stopped content control in the broadband Internet!  But
then again, I did find a couple of historical references helpful
(the efforts of the first Register of Copyrights, Thorvald
Solberg, at the turn of the century as he confronted player
pianos, radio, motion pictures, etc.; and the Feist Publications
Supreme Court finding).


Seth


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