[Patents] monopoly/publicity contradiction?

[PILCH Hartmut phm@a2e.de]

> > What about all the other points?
> 
> I was referring to all the other points.  I think we disagree about
> everything.
> 
> > Such as the monopoly/publicity contradiction that this thread is about?
> 
> I see no contradiction.  Monopoly and publicity are the two sides of the
> bargain in the patent system.  Without the one, you should not have the
> other.  The applicant tells everyone about his invention (publicity), in
> return for which the state awards him/her a monopoly for a limited
> period of time.  The applicant is not forced to accept the deal - s/he
> can take it or leave it.

> > such as the "ludicrousness" of patenting a "technical solution" and at the
> > same time allowing the public disclosure of its description, which
> > consists in a computer program.
> 
> Makes perfect sense to me.

Maybe you didn't get my point: 
The program is both the solution and the description.
To describe a program "invention" accurately, you need to describe it in a
formal language, which can be executed on a computer. 
Programs have a dual nature, which defies the normal distinction between
monopoly and publicity.
Do you understand the point now?
 
> > why is it that such a contradiction is "ludicrous" only if it leads to the
> > granting of less patents?
> 
> Who said that?  I said that it would be ludicrous to reject a patent
> application when the applicant discloses the best means of carrying out
> the invention, but to grant it if the applicant only describes one or
> more complex and expensive embodiments using, for example, discrete
> logic.  Forcing applicants to draft their applications so that they only
> describe complex and expensive methods of carrying out the invention
> would not result in fewer patents - only poorer ones.  Poorer in the
> sense that the public would not be told the easiest and most economic
> method of performing the invention.

Wrong: 
poorer in the sense that the easiest and most economic method of
performing the "invention" would not be patented and therefore be free
to be used, thus removing the incentive to apply for such patents and
thereby resulting in fewer patents.  Moreover, most of those patents
would not only be unassertable but also invalid.  The German Supreme Court
already in 1976 published examination rules for sorting them out, see
the Kolle article of 1977.

What you believe to be a contradiction actually isn't a contradiction.
However the contradictions resulting from the dual nature of a computer 
program are here to stay:

- monopoly/publicity contradiction:
  publication of an adequate description breaks the monopoly  
- prior uses contradiction:
  prior user of computer program gets either everything or nothing,
  depending on whether you treat the program as a product or a process

-phm