Subject: Re: Examples needed against Soft Patents
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Wed, 26 Jan 2005 14:29:01 +0900

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

    Taran> But it certainly does make one choice more forced than
    Taran> others.

It does not.  "Forced" means that you make the choice based not on its
intrinsic profitability, but rather on the basis of an artificial
external threat.

Patents _do_ involve force, but the force is applied to those who wish
to use the patented technique, not to the inventor who decides whether
to patent or not.

    Taran> If you and I add 1+1 and come up with 2, we have the same
    Taran> knowledge. I may have counted my fingers, you may have
    Taran> automagically determined the number in your head. I can
    Taran> prove my process, you cannot prove yours. If I patent my
    Taran> process, you have to pay me every time you add 1+1. Do you
    Taran> understand me better?

No.  AFAIK your example is contrary to patent law, and I don't see
what it is supposed to demonstrate.  (Amazingly enough, less than 24
hours ago I used a nearly identical example---rather than "automagic",
I used a table look-up---to illustrate the limits of patent protection
in a class lecture!)

Anyway, your usage suggests that you misunderstand the concept of
"patent".  At least in the US I cannot patent my "automagic" process
because it is not describable as a "device", but your patent does not
interfere with me using it.  Furthermore, courts don't deduce the
mechanism by looking at the results, you open up the device.  Only if
the insides are as described in the patent can there be infringement.
(The argument you have in mind is correct for copyright---if it looks
like a copy, then I have to prove that I didn't copy, or I lose.)

    Taran> I suppose to someone who is on the other end of the stick,
    Taran> it would seem more absolute.

No, I'm sorry.  It is _not_ a question of being on the other end of
the stick.  _Grammatically_ what you wrote was _absolute_.  No "more",
no "less", just absolutely absolute.  Getting these things right
matters if we want to convince the Powers That Be.

    Taran> Again, you're not on this side of the stick.

There's that stick again!  So what?  If _you_ would put down that damn
stick, there'd be nothing to keep us apart!  :-)

BTW, it's easy to understand your perspective; it has well-documented
historical precedents such as the reaction of the English peasantry to
the Enclosure Movement.

    Taran> And I don't see how the patent system being discussed gives
    Taran> more value to the end-consumers for the additional cost,
    Taran> and I don't see how this patent system allows for
    Taran> competition outside of the small portion of the developed
    Taran> world which generates these patents.

But who cares what you can or can't see besides you and me?  We don't
have a vote!  There are plausible arguments for both value-addition
and protection of competition, and acceptance of those arguments is
the status quo.  Protesting your own blindness will simply allow the
Powers That Be to ignore all your arguments.

Ie, The Opposition can use it in an ad hominem argument that you
clearly don't know what you're talking about, so they needn't listen
to anything you say.  We must do our homework; the status quo is in
their favor.  Even in countries where the legal system does not yet say
so, the momentum is clearly on the side of willy-nilly converging to
U.S. practice.

-- 
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.