Subject: Re: Examples needed against Soft Patents
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Wed, 12 Jan 2005 18:27:10 +0900

>>>>> "Laurent" == Laurent GUERBY <laurent@guerby.net> writes:

    Laurent> Well, the US constitution amendment dealing with
    Laurent> monopolies on immaterial things looks quite in the
    Laurent> "economy" area to me:

Yeah, I've read it many times, and even quoted it on this list.  Big
deal; the question is not what the Constitution says about why it
authorized Congress to create these franchises, it's what the
legislature has done to implement them in law, and how the courts have
interpreted those laws.  Implementation has almost nothing to with
economic thinking, except where it can be snuck in through the back
door via right-thinking regulatory agencies which have been delegated
some arbitrary amounts of power reserved to the Congress.

    Laurent> How do you measure "Progress" except by using "economy"
    Laurent> concepts?

According to the Contitution, you don't need to measure it; that is a
"factive" statement, ie, it assumes that some non-infinite degree of
IP will promote Progress.  The rest is up to the judgment[sic] of
Congress.

    Laurent> I see no difference between Napoleon and common law here.

The juridical extension of past practice wrt patents to software
patents probably could not be accomplished in France; it would require
legislation.  Bernard, do you have a comment?

    Laurent> Anyway, a small personal contribution on the technical vs
    Laurent> non technical debate, one slightly different way to
    Laurent> distinguish would be by studying the following question:

    Laurent> Q: How much does it cost per user for a great number of
    Laurent> users at the patent granting date to be able to use your
    Laurent> invention assuming access to all other inventions to
    Laurent> date?

    Laurent> If the cost is low enough,

That's clearly contrary to the intent of the Constitution; the purpose
is to promote Progress, which is clearly benefit-related, not
cost-related.

-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
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