[Patents] "fork vs leaves" or "worlds 1, 2, 3"

[phm@a2e.de (PILCH Hartmut)]

> It seems as you have not really understood about the tree
> concept yet, I will try to make that somewhat clearer.

I am not sure whether I understood it.

Patents of true inventions (i.e. innovations in applied natural sciences,
involving new insights in physical causality, pertaining to material
embodiments) also often come in genealogies that look like tree
structures.

You have one "basic patent" and many patents on some further advances
around the basic patent.  A common clichee is that the forks (basic
patents) will belong to western companies, while the leaves (or subforks)
will be the result of a Japanese counter-strategy that allows the Japanese
to get free or cheap licenses on the basic patents.

In the above-stated clichee case, the patent on the fork actually did not
prevent development of leaves but rather incited it.

This doesn't mean that this is a great mechanism for inciting innovation.
Machlup has some good arguments on why this is wasteful seen from an
overview perspective.  But I don't think that these arguments allow you to
set up a rule saying that fork patents are particularly harmful while leaf
patents are ok.

Many of the fork patents (basic patents) actually have a particular R&D
merit behind them.  I was recently dealing with a base patent that had
disclosed a new magnetic material with a magnetic density of a few 100
times that of anything known before.  It had taken quite a lot of
experimenting to find that, and the ensuing leaf patents were
comparatively trivial.

Moreover, I have the impression that the "fork vs leaf"  argument applies
to software copyright as well as software patents.  By making software
free, you enable it to become a fork instead of only a leaf.  The "open
source" can become a "living source", while proprietary software is
crippled and will usually die immediately if the marketing department
decides so.  Information has the potential of being a living social
structure, while neither material embodiments nor natural laws have that
potential.  Both are determined dead ends.

In Karl Popper's terms you would say that information evolves in "world 3"
while material embodiments and natural laws belong to "world 1".  Patent
law has traditionally excluded worlds 2 and 3.  In the terminology of
the German Federal Court of 1969-81 they were formulated as

world 1: world of things (Welt der Dinge)
         controllable natural forces (beherrschbare Naturkraefte)
world 2: interspersed activity of the human intellect
         (zwischengeschaltete menschliche Verstandestaetigkeit)
world 3: rules of calculation and organisation
         (Rechen- und Organisationsregeln)

worlds 2 and 3 were also lumped together as "world of the mind" (Welt des
Geistes).

Today, patent inflationists lump worlds 1 and 3 together as a world of
objectivised solutions, i.e. "practical and repeatable solutions"

        Mark Schar 1998 "What is Technical?"
        http://swpat.ffii.org/vreji/papri/grur-schar98/

They fail to see that world 3, although objectivised and no longer part of
the subjective human mind, is even more alive and faster moving than world
2.  It makes no sense to just exclude world 2 and patent everything around
it.

Maybe that is what you wanted to say with "fork vs leaves".

-phm