[Patents] monopoly/publicity contradiction?

[Bernard Lang Bernard.Lang@inria.fr]

On Wed, Dec 20, 2000 at 04:04:54PM +0000, Steve Probert wrote:
> To some extent the system should be proportionate and self-regulating -
> in industries where the research costs are very high (eg
> pharmaceuticals), the patents will be more valuable.  (So licencing
> costs will be higher etc.)  OTOH, where the development costs are lower
> it will often (but not always, I accept) be cheaper to work around a
> patent.  In such cases the patent will be worth less.

what if the patent covers a communication protocol given that

 -   network effect will force everyone to use it (no way around)

 -   the value comes from the user community and not from the invention

 -   incentive for disclosure is unneeded (it has to be observable)

> I cannot speak for lawyers, but I can assure you that many Patent
> Examiners are programmers themselves.  In my group, all the Patent
> Examiners who deal with software applications either write computer
> programs in their spare time or have been employed as programmers before
> they became patent examiners.  They usually have a pretty good idea
> whether something would have been easy or time consuming for a
> programmer.  However, they might express the communication problem the
> other way around - it's very difficult to persuade programmers that just
> because an invention is "easy", does not make it any less patentable.

  I know that easiness is not an issue, since vrey trivial devices are
patentable ... just no one thought about it previously, or bothered to
tell.

  But someone made the point that the very role of programmers is to
invent ... and being in a world of intangibles, they do that much more
often than, say, mechanics.  So the patent system (potantially) gets
in the way a lot more often, becoming a hindrance rather than a help.
The issue is also that since the money involved in creating and
distributing programs is orders of magnitude smaller than in other
industries (I am excluding marketing costs, which no one is obliged
to), the patent system creates a significant economic disturbance (see
open source software) while it remains mostly marginal or small in
other technical areas.

Change of topic

 Strangely, there is one issue that seems never to be addressed.  The
role of patents as a publication disincentive.  I am not talking about
source code that is kept hidden in an attempt to escape infringement
detection.
  I am talking about the fact that innovation is sometimes based on
fundamental research work, that is unpatentable.  It may be of
advantage to keep the research confidential for 2 reasons:
   1- to get the patents on derivative techniques, before anyone else
   2- more importantly, to make sure that others do not get such
      patents which would enable them to prevent you from benefitting
      from your own research.

  and I suspect this is quite common.  On the other hand, without
patents, there is less protection, but also less risk.  And in the
case of software, the real research cost is usually near zero in the
part that is patented.

  I suspect this issue did not really exist in the early time of
patenting, since techniques were less dependant on fundamental
research.  I am wondering whether this has been analysed by economists
(probably)>

   Bernard

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