Subject: Re: Examples needed against Soft Patents
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Fri, 21 Jan 2005 17:49:23 +0900

>>>>> "Taran" == Taran Rampersad <cnd@knowprose.com> writes:

    Taran> Let's say I take PGP, and I make it better. Super-whamodyne
    Taran> better. But I only use it within my company. I have an
    Taran> advantage that (oddly enough) FLOS gives. So let's say
    Taran> instead of playing the patent game, I decide to keep it a
    Taran> trade secret. Then someone else comes along and does the
    Taran> same thing, but patents it. Presently, it does not seem
    Taran> likely that someone could stand up in a court of law and
    Taran> say, "That cannot be patented, it is our trade
    Taran> secret!".

You're right, they cannot.  That's _exactly_ the social benefit of
patent!  As constructed in modern legal systems, patent ==
publication.  In return for giving up the protection of secrecy, you
get the protection of law.

    Taran> The point that 'intellectual property' laws are supposed to
    Taran> empower creators - yet it takes away the capacity to have
    Taran> trade secrets,

It does not.  It makes trade secrets somewhat more risky, since the
very fact that you kept it secret means you cannot claim your
technique as prior art (in the U.S., anyway).  But if it's difficult
to deduce from the public side of the UI any of what is happening on
the private side of the UI, trade secrets may still be very useful in
practical business.

Furthermore, note that in that situation you are not very likely to be
vulnerable to a patent, even if you are using a patented technique.
The reason is subtle: you _can_ freely use a patented technique as
long as your use was not "claimed" in the patent application.  If, on
the other hand, the patent _does_ claim your application, then it is a
"good" patent because we have assumed that your usage is non-obvious.

    Taran> Now, if patents were only awarded to Flesh and Bone people
    Taran> instead of legal entities, I imagine there would be a lot
    Taran> less patents. But now it's an arms race and a cold war.

No, no, no!  Totally wrong analogy.  Arms race/cold war, in the best
of circumstances, is a process of taking resources and locking them up
in unused stocks.  In the worst of circumstances, the arms are used,
which results in _further_ destruction of stocks and human life.

The whole point of patents is to make them _public_ and _transferable_
so that those who can invent but not manage can sell the inventions to
those who can manage but not invent.  Thus a certain stock of
knowledge is thereby released to everyone who can find a profitable
use for it, instead of only to a couple of spiteful individuals who
choose to withhold their knowledge from the world.

Assuming the patent system works efficiently, of course.  We know it
does not, and we need to find something better.  But your line of
argument takes us in the direction of a spite economy, where we
deliberately beggar-our-neighbors for the sake of profit.  Double-
plus-ungood IMHO.

-- 
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.