[Patents] Black and white

[Bernard Lang <Bernard.Lang@inria.fr> (Bernard Lang)]

actually some studies indicate that patents are used more as a
bargaining tool in power struggles than as a mean for protecting
innovation (for which industrial secret is preferred).
  Hence there is a strong incentive to patent preferably trivial, or
non critical, techniques (preferably broad) rather than the really
useful and innovative ones, which remain secret.
  In other words, in such circumstances, the patent system fails its
purpose of encouraging and publicizing innovation, and actually may
slow down innovation through the obstacle of trivial patents.

  Of course, this is an argument against other forms of patenting than
just software, and the study I have currently in mind concerns the US
semiconductor industry
http://jonescenter.wharton.upenn.edu/papers/2000/wp00-16.pdf ;(by Hall
and Ziedonis, from the Wharton school business) :

« R&D managers in semiconductors consistently reported that patents
were among the least effective mechanisms for appropriating returns to
R&D investments. »
  Most important are: lead time, secrecy, manufacturing or design
capabilities.

« There remain little systematic evidence on how a shift toward
stronger patent rights affect the innovative activities of firms in
the context of rapidly changing, cumulative technologies. »

I wish to point out, especially for Greg benefit, that this is not
criticizing patents in general, but patents in industries with
specific characteristics, emphasizing the point that the effect (and
hence the usefulness) of patents is variable and depends on many
factors, which should be weighed.

   By killing the flexibility of the patent system, its legal
evolution, and particularly the TRIPS agreements, have largely
impaired the economic usefulness of the tool.


Bernard

On Mon, May 07, 2001 at 08:35:17PM +0200, PILCH Hartmut wrote:
> > If it turns out that in some cases current copyright offers less
> > "protection" than seems appropriate, there are several ways to solve the
> > problem:
> >
> > (1) fiddle around with copyright:
> >     - whenever someone publishes a source first, put the burden of proof
> >       on the plagiator.  Require that he must do something really original
> >       and creative, based on understanding underlying problems but
> >       completely "reinvented", not just transscribed to another form
> >       if expression.
> >     - be more strict during the first few years of copyright than during
> >       later years.  be more strict when the copier is aiming at a
> >       competing product than when he is striving for compatibility
> > (2) formulate the above and some more principles into a specialised
> >     software copyright (sui generis approach)
> 
> Of course there is also the possibility of just finding other means to
> finance research.  E.g. accept that the best research is public-financed
> and usually less more important research comes out of the R&D departments
> of companies, where it is usually financed by advantages in oligopolistic
> competition.  Oligopolistic competition is the basic rule of modern
> "market economy", with or without patents.  And large companies are forced
> to conduct such research, with or without patents.  Bessen & Maskin showed
> that software patents did not induce more research even in the large
> patent-holding companies of the field.  And others such as Fritz Machlup
> and Greg Aharonian have pointed out that this applies to most hardware
> fields as well.
> 
> > Patents are not a heritage of human history, shaped by many arbitrary
> 
> Sorry, this "not" was a bad typo.
> 
> > factors. I can see no reason in the world why the patent system should
> > carry any merit with itself that might qualify it for being applicable to
> > software.
> ...
> 
> 
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