[Patents] monopoly/publicity contradiction?

[Ram'on Garc'ia Fern'andez ramon@jl1.quim.ucm.es]

On Wed, Dec 20, 2000 at 04:04:54PM +0000, Steve Probert wrote:
> I don't really want to express an opinion because I think that would be
> wrong for me as a Civil Servant and an official of the Patent Office. 
> What I would say is that the patent system has never differentiated
> between inventions on the basis of how much the underlying research
> cost.  It doesn't even distinguish between those inventions that are
> truly valuable and ground-breaking, and those that are [comparatively]
> trivial and insignificant. As the law stands, we would not be able to do
> so even if we wanted to. Only if an invention is known or obvious can we
> raise a legal objection.

Thank you very much. This is *really* my point. I could not say it
better.  This is why I am against software patents: most inventions in
software are easy inventions, and the law does not distinguish between
valuable and trivial inventions.

> 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.  In other words
> what I am saying is that the value of a twenty year monopoly varies
> depending on a number of factors, one of which is the typical cost of
> research in the field.  

There are so big incentives in having a monopoly that allowing easy
patents as a mechanism to exclude competition is enough. Lawyers will
take care of writting the patent in the most broad language posible,
so that it will be difficult to circunvent.

> Setting arbitrary thresholds based on research
> costs would effectively discriminate against individuals and smaller
> companies in favour of the bigger companies who will always spend more
> on research.  

I don't see any problem. If an invention is cheap, it would happen anyway.
Why should a monopoly be granted to the individual or company that had to
solve that problem before them? And if we look at who is supporting software
patents it seems that it is rather more beneficial for large companies.

> And who would decide how much money needed to be spent to
> make a particular invention?  (I presume you would not be content to
> determine the fate of a patent application on the basis of how much was
> actually spent.)

I agree that it would be difficult. But what alternatives do we have?
If there is nothing better, let us exclude computer related inventions
from patenting since most of them are trivial.

> 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.

Wouldn't be the right thing to change the law, so that those easy inventions
are not be patentable?

Ramon