[Patents] Hardware/software codesign

[PILCH Hartmut phm@a2e.de]

> However, I must side with Greg. In the economic theory concerning patents=
,
> software is nowhere seen to be conceptually different from other issues o=
f
> intellectual property (biotechnology, textile machines, business practice=
s
> etc.).=20

Then your economic theory is under-developped.
It is true that traditionally economists have focussed on the world of
matter and money and pretended that information is not an independent
category.  They have yet to realise that information has its own
regulatory system which is not The Market.  I'd rather call it The Forum.=
=20

> Nowhere does one make a clearcut conceptual differentiation between
> software/hardware (no, not even in the theoretical part of Bessen and
> Maskin).=20

That is a weakness of Bessen & Maskin and many other studies. Yet even
without a rigid conceptual delimitation, as you say based on "casual
empirism", Bessen & Maskin show that patents are bad for software.

> Actually economics is lacking a good model of knowledge acquisition
> (I 'm racking my brains trying to find soemthing sensible).=20

Exactly.  There are not enough studies in Forum Economics.

> Casual empiricism (Bessen Maskin empirical part) suggests that copyright
> protection seems to have been sufficiently strong to ensure innovation, a=
nd
> that the problems of current patent systems seem to outweigh the benefits=
=2E

Casual empriricism is the preparatory stage for proper theory building.
=20
> I have yet to understand the Technizit=E4ts concept put forward in this g=
roup.

It is not a good idea to use the German word for that, pretending that it
is something exotic.  In German the word is as exotic as in English, and
many linguistically less innovative people prefer to say "technischer
Charakter". So either call it "technicity", which is perfect English, or
"technical character".

> I am yet undecided as to whether I should 1) accept it at a shallow level=
 as
> a rule of thumb for patentability, or whether I 2) completely disagree wi=
th
> its consistency at a more deep (but presumably empirically less important=
)
> philosophical level.

There is no reason to doubt the possibility of distinguishing mind and
matter at a philosophical level.  Economists on the other hand have long
been arguing that patents work well in those areas of technology that have
a high degree of empiry.  Which is saying the same, just in a more
shallow way. =20

> Even if I were to stick with 1), I see no economic arguement why this sho=
uld
> be the basis of a general, optimal patent system.=20

Nobody would say that it is the basis of the best of possible worlds.
People who ask that something be optimal (or science-based etc as Greg
calls it) are usually nihilists.
Any formula for delimiting pantentability must satisfy two requirements:

1 clarity (which also means philosophical relevance outside the patent
  field, as Kolle points out)
2 macroeconomic benefit

There are not many rules to choose from that could satisfy requirement 1.
Thus the rule we choose cannot be compared against some theoretical=20
optimum but only against the other rules that we could choose.

> At best it might be second best given political, social constraints
> which have yet to be precisely specified.

Even without such constraints there are not many rules to choose from.
=20
> I am currently rereading Kolle a few times in the hope that the process
> converges to some understanding.

Also try reading pro-innovation.org chapter 5, Kiesewetter-K=F6binger,
Benkard etc.   Try to apply the rule to specific cases and find if in any
cases it lacks clarity (criterion 1).  If it does, try to improve it.
I found that Kolle's version may still leave doubt in some border cases.
It becomes clearer if you require that the "invention" be based on either
new hardware or new knowledge about natural forces or both.  As an extra
layer of security against any abuse of the rule, we need the general
exclusion of software, as provided in Art 52.2.  Also remember that
equivalence is not a valid argument in the context of which patent claims
should be admissible.  Having a patent does not mean having a guarantee of
absolute control on drawing benefit from an idea.  It always means a
limited control.  E.g. a patentee can't forbid anyone to write a detailed
work documenting the invention plus all related knowhow.  Software is such
a detailed work.

-phm