Subject: Re: Examples needed against Soft Patents
From: Taran Rampersad <cnd@knowprose.com>
Date: Wed, 26 Jan 2005 16:42:28 -0500

Stephen J. Turnbull wrote:

>>>>>>"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.
>  
>
In a business sense, inventors are forced to patent. Failing to patent
is a liability. Jamie Lokier made a similar point in response.

>    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.)
>  
>
No, it's actually an oversimplified expression. I think perhaps you
misunderstand the concept of "patent". You see, while it's all nice and
fun for the people who hold patents, people who do not hold them are
subject to the laws regarding the patent. The fact that you believe that
my example is outrageous actually makes my point.

You see, it's not about winning cases most of the time. A lot of people
see the world with the legal system coming to save them when they are
wronged, but the truth of the matter is that if you are broke in the
example I have given, and I have armies of lawyers, you LOSE. You can't
win. You might have legal legs to stand on, but I can swish you around
in so much legalese that you'll never profit. Now if you have oodles of
money, we simply waste some time coming to an agreement. Yes, it makes
sense on an intuitive level that you and I are simply adding 1+1 in
different ways. But you can't *prove* your method; I can *prove* mine.
You can't patent *thought*, you can only patent a *process* - and by
patenting the *process*, it creates all sorts of fun legal and business
problems.

This isn't too different from what SCO is doing with IBM right now, only
with Copyright law instead of Patent Law. This is the world we live in,
not an ideal world where the legal system cannot be leveraged by money.
That's where law and business meet.

>    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.
>  
>
Your response makes my point in a way. But I must ask you - who do you
think that the 'Powers That Be' are?

>    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!  :-)
>  
>
I don't have the stick. You do.

>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.
>  
>
Interesting, I'll read up on that. But relegating my perspective to one
you are familiar with does not make my perspective the one you are
familiar with.

>    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.
>  
>
Who are these 'Powers that Be'? Assuming that the status quo is actually
right is not a scientific basis. Making the situation better than the
status quo is of scientific basis. However, when errors are made it's
important to discuss all aspects of the status quo that are
questionable. I find the status quo highly questionable, as do others -
but they have their reasons, and I have mine. Some of these reasons I am
exploring here.

>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.
>  
>
True. But at the end of the day, I'm talking about how it is possible to
make a flawed system better, and the 'Powers that Be' are actually the
groups I probably consider to be the problem - the people who hold the
stick and are wandering around whacking people with it. I don't accept
the status quo as you see it.

Calling it the status quo is a reality, but if we're just going to cling
to the status quo, then we don't need patents. Why? Because we've lost
our will to innovate. Maybe I know enough about the legal system to know
that it has evolved into this monstrosity that it is - which doesn't
protect innovation through commoditizing it. There are valid uses for
patents, but that's not what started this discussion - it's the invalid
uses for patents.

I'm not going to argue law with lawyers, and I won't argue economics
with economists. But I will argue for my rights to innovate and choose
how to use my innovation, and the present system takes rights away from
me and artificially inflates some things - which I note you removed in
your response.

-- 
Taran Rampersad

cnd@knowprose.com

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