Subject: Re: Examples needed against Soft Patents
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
Date: Wed, 12 Jan 2005 22:54:33 -0500


Actually, the following paper explains that in the vernacular of
the time, "progress" meant "spread," not "quantitative
improvement" in an economic sense:

Search for author Malla Pollack at:

> http://papers.ssrn.com/sol3/DisplayAbstractSearch.cfm

That will get you a link to "What is Congress Supposed to
Promote?" and the following link:

> http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID304180_code020401140.pdf?abstractid=304180&mirid=1

I converted an early draft to text, here (but don't forward that
link or swamp my poor dialup server):

ftp://RealMeasures.dyndns.org/Promote.txt


Seth


"Stephen J. Turnbull" wrote:
> 
> >>>>> "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
> University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
>                Ask not how you can "do" free software business;
>               ask what your business can "do for" free software.
> 
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