From srctran@world.std.com  Fri Feb  9 01:39:38 2001
Date: Thu, 8 Feb 2001 20:39:38 -0500 (EST)
From: Gregory Aharonian srctran@world.std.com
Subject: [Patents] How Bessen's paper is being distorted

Jim Bessen in a recent comment clearly states the limited scope of the
conclusions of his paper that have been distorted in this forum:

    - that software patents to date have not a negative impact
    - that the software industry has not been damaged by software patents
    - that software patents are not bad

So anyone using their paper to argue differently is being unethical.

>Not true. The problem is this. Software patents do not have a substantial
>negative impact YET in the U.S. 
>Not true. The problem is this. Software patents do not have a substantial
>negative impact YET in the U.S. 
>Not true. The problem is this. Software patents do not have a substantial
>negative impact YET in the U.S. 

>But this does not mean that the 100,000 patents out there will not
>have a substantial effect in the FUTURE.

To date, software patents have been litigated to the same percentage
levels as have patents in other fields of technology.  It is mostly a
percentage thing in all industries.  So looking at current litigation
trends, future projections for the impact of software patents seem no
different than for patents in other fields of technology.  Nothing
special good or bad about software patents, once again.  Software is
just another area of technology.

>We did not try to show that the software industry has been damaged by
>software patents. We showed that the firms obtaining most of the software
>patents (and this is a small subset) did not increase their R&D as the
>standard pro-patent argument alleges.

So what?  That is just one of the pro-patent arguments.  There are many
others, you provided no context for your subset conclusion. Here's another
as acasual argument as yours - in the period from 1992 to 1998 when over
50,000 software patents issued, the software dominated NASDAQ rose
tremendously in value with the participation of many of the companies
getting the bulk of the software patents, as well as many of the companies
getting a handful of software patents.  So I claim that in return for
issuing all of these software patents, the US got a hughly appreciated
stock market.  Maybe without software patents, these companies would have
lowered their R&D investments.  I will agree with you that arguments good
or bad linking patents to R&D investment levels aren't worth much.

>The economic tally is clear enough from our limited data: society has
>granted a small number of firms subsidies that may be worth billions. In
>return society has not gotten a dime's worth of additional R&D. And in
>addition, there is a significant risk of decreased innovation in the future.

There is no decent risk of decreased innovation in the future.  Find me
some data that even suggests that.  And with regards to subsidies, large
corporations get far larger ones than those due to patents.  A problem,
but a much more general problem.  And some of the billion dollar subsidies
that you complain about are based on legitimate licensing revenues.

>As you pointed out, our paper does not argue that software patents are
>necessarily bad.
>As you pointed out, our paper does not argue that software patents are
>necessarily bad.
>As you pointed out, our paper does not argue that software patents are
>necessarily bad.


>But I think our paper does make a good case against the "stronger
>patents are always better" school. This has been the main argument of
>the pro-patent forces in Europe and these forces have largely avoided
>empirical arguments. As you know, these people squashed Brian Kahin's 
>study of software patent quality. This was my point to Francois.

IBM quashed Kahin's study.  IBM and Microsoft rendered the Software
Patent Institute a joke.  I wouldn't be surprised that IBM is a secret
investor in BountyQuest.  Which should make everyone applauding IBM's
commitment to Linux very wary.  But I think you misrepresent the pro-patent
forces in Europe.  They want to drop 52.2.C mostly to not have to waste
years of court decisions (like we did in the US) to arrive at where they
already are:  with enough connections to the real world, most software
patent applications are sufficiently technical and applied to be patentable,
and not considered to be just "computer programs".  I support efforts such
as Hartmut's focussing on 52.2.C mostly because it is a waste of time to
attack software patents this way.  He prefers to spend his time dreaming
up new ways to insult me, apparently to meet the demand for entertainment
of his colleagues on this list.  His latest insult, likening me to someone
spreading diseases in order to cure them, I found very amusing.

>You have raised another argument, that software IP should not be treated
>differently from other fields. You have a point, but given that patents are
>also screwed up in other fields, I am not sure this alone provides a
>convincing reason for Europe to change its statute  .......

Sure it is a good reason to change the law.  First, change the law to
fully integrate software patenting into the system, and then work on
improving the quality of patent examination procedures across all areas
of technology.  If you got rid of most of the crappy patents issuing in
all fields, not just software, many of the arguments on lists like this
would go away.  It is why I have been arguing for years to improve the
quality of patent examination processes.  I have no problem with the
theoretical basis of the current system, and I like systems that are
consistent and well formed (which "computer programs" in 52.2.C isn't),
but I do have problems with the implementation of the current system,
and want to see it fixed.  I do not think that is an unreasonable position
to keep on arguing, despite Hartmut's many insults.

Greg Aharonian




