[Patents] monopoly/publicity contradiction?

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

On Wed, Dec 20, 2000 at 12:15:49PM -0500, Gregory Aharonian wrote:
> Similarly, the number of ads for (new) software products also tends to
> continual increase, as everyone and their brother tries marketing their
> latest software package.  Overall industry sales are doing quite well
> suffering mostly from piracy.

For public relations reasons, patents aren't used for suing as much as
they could be. (I think that I already brought this argument to this
list). It is imposible to do anything in software without infringing
IBM patents (example: cut and paste in an editor). Fortunately, IBM is
responsible enough to use most of its patent portfolio for defending
against patent lawsuits only.

The most important impact of patents in software is that many
companies have to pay a patent tax for operating, thus producing more
expensive products. For example, Lucent collects license fees-taxes to
any software company in Sillicon Valley. Or the WAP tax that Geoworks
is collecting: a protocol and file format whose only value is that
it is the one that everyone else is using.

> Not to say that software patents aren't having economic impact (trust me
> I know), but rather that I doubt very highly their impact is any 
> different from another industry.  All industries have stupid patents
> that are used to harass others, I probably see more of this in the
> biotech world.

You already know that you and I disagree in this point. I insist that
trivial inventions are more frequent in software that in other
fields. But let me just strike your attention on Steve's words:

> [Steve Probert <steve.probert@patent.gov.uk>]
>   It [the patent system] 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.

See now? The problem with stupid patents is not the examination process.
The problem is in the law. Anything that is above "obvious" is patentable.
Futhermore:

> [Steve Probert <steve.probert@patent.gov.uk>]
>   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.

Are you convinced now that the problem of easy/stupid patents is not with
the examiners, and that the problem is in the law?

Ramon