[Patents] Re: American Inventor Coalition

[phm@a2e.de (PILCH Hartmut)]

erik josefsson <erikjosefsson@usa.net> writes:

> i came to "Intellectual Property Creators" and found
> http://www.heckel.org/Heckel/ACM%20Paper/acmpaper.htm
> where it says:
> 
> "The problems that the patent community sees are these:
> (a) the difficulty and expense of prior art searches;
> (b) patents being issued with inadequate examination;
> (c) imprecise claims making it difficult to know whether
> infringement has occurred; and
> (d) the length of time the examination process takes."

These are only internal problems of the patent system.  External ones
are not even addressed, the simplest one of them being that even when
applying the standard of "novelty and inventive step" correctly to the
satisfaction of the "patent community", you end up with mostly trivial
patents, especially when you admit logics (programming, business etc)
into the realm of patentability.
 
> and the basic solution is suggested:
> "PTO fees should be reduced, especially for smaller entities, and the PTO
> should receive a higher level of funding to improve its ability to examine
> patents so it can issue better quality, more timely, patents in software and
> other technologies."

The former is against sound economics.  As W. Siemens always said when
he argued for "conservative patenting" in the 19th century: what
industry needs is a rapid disclosure of those inventions that are
economically important, and a high cost of patents to guarantee that
the blockade, which patents inevitably bring, occurs only when they
are really economically important.  And when that is the case, small
inventors can afford the price just as well as large inventors.

Meanwhile I have a protocol of discussions of 1882, where W. Siemens
continuously argued this point of view and, even then, with
conservative patenting in place and the system only 9 years old,
patent offices well funded and prior art fairly overseeable,
complained about rampant "patent fraud".  They were also already
discussing about whether the examination process was really a good
idea at all.
 
> But the question is if the problems (a) to (d) could ever be
> solved for the software industry when
> (a) prior art is produced at a speed of >1000000 lines of code per day 
> (b) potential examinors skilful in the art stay in the art
> (c) imprecise claims is what makes patentlaywers tick (do you still use the
> Freeman-Walter-Abele test over there?)
> (d) will allways be a problem if you want quality
> 
> And if they could, what would it cost?

In that place Heckel seems to be arguing like a lobbyist who proposes
some money grave, a barrell without a bottom, for sinking public funds into.
 
> Also an interesting suggestion is made:
> 
> "It seems that the PTO should compete with the NSF and other organizations 
> for
> federal funding on the basis of their cost effectiveness in encouraging
> innovation."

That is a correct suggestion, and its consequence can imho only be a
radical cutdown of the system, including of course a ban on
logical/mathematical patents.

Did Heckel ever read Machlup or some of the many other studies in
patent economics?  Apparently not.

> but in the end the reasoning becomes to strong for my taste:
> 
> "It would be interesting to evaluate the results of federally funded science
> to determine which projects are worth the cost. Some projects seem to have
> become like those welfare mothers, who generation after generation, are
> entrapped in a governmental support system."

Machlup in his book "The Knowledge Production in the United States"
(1962) of course did such an evaluation.

The fact that some public projects only draw money but don't produce
value on the market does not mean that these projects don't produce
significant value for the national economy.

On the other hand, the fact that some private projects can, thanks to
the patent system, generate money on the market, does not mean that
they produce anything more than obstruction to the national economy.
 
> Which makes a strange connection to the german law that Hartmut mentioned 
> that
> would turn german universities into patent factories.
> (http://liberte.aful.org/pipermail/patents/2001-May/001796.html)

Yes, indeed.  You seem to have found a very good example of the
alliance between patent ideology and market fundamentalism, which has
nothing to do with any serious economics, but is a very potent
movement, even when its terms are not explicitely stated as by
Heckel.  This kind of thinking, just like the "small inventor" myth
cultivated by Bresse and others, strikes a chord of resonance with
basic human desires and ineradicatable fantasies like

- I want to be able to jump directly into the first league
  (df lottery, Chinese imperial examination system)
- I am a great genius and by means of the patent system I will get the
  deserved place in the first league
- There should be no politics in this world.  Everything should be
  decided by some anonymous and objective mechanism, such as the
  market, and all I should have to do is to plow my small acre

It seems that one important function of organisations like the
"inventors' coalition" etc is to cultivate these potent myths, which
are close to what W. Siemens, in accordance with the economists of his
time, rejected as "inventor romanticism".

Regards

-phm