From phm@a2e.de  Sat Jun  2 22:11:38 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sat, 2 Jun 2001 23:11:38 +0200 (CEST)
Subject: [Patents] Re: Konno 1995: The Karmarkar patent and Software -- does math
 patenting work?
In-Reply-To: <20010602194738.A1845@jl1.quim.ucm.es>
Message-ID: <Pine.LNX.4.33.0106022229580.11183-100000@mulix.oas.a2e.de>

> We have to make a balance. If most software patents are trivial patents,
> then their total effect is harmful. So we have to choose between no
> software patents or changing the law to remove trivial patents.

When you talk about a "balance", difficulty/triviality is only a part of
one side of the equation.

On the one side, you have (even according to patent law manuals such as
Krasser 1986):

   need for rewarding the inventor
   (this depends on factors like difficulty/cost of invention,
    cost of imitation, possibility of recouping the cost in time)

and on the other you have

   burden of the monopoly on society
   (this depends on the concreteness of the invention, e.g. on objective
    material restrictions on its usability ==> technicity)

Thus even though it may be extremely difficult to discover a new natural
law or an important mathematical principle (such as the inner point method
of Karmarkar), according to the traditional view nobody should get a
patent on it.

With non-technical innovations, not only is the need for rewarding the
inventor usually lower, and the burden of the monopoly on society is
higher.

This is why we have in traditional patent doctrine both non-obviousness
and technical character as separate notions.  Reducing everything to
non-obviousness is not enough.

Richard Stallman often formulates this in a provocative way when he says:

 Most software patents are harmful because they are trivial
 A few software patents are harmful because they are not trivial

We must not forget that granting monopolies is not the only possible
method for promoting progress of science and the useful arts.  When the
monopoly would be too burdensome, some other ways need to be preferred.
Such as e.g. non-exclusive rewarding systems or public-financed research.
In fact the Karmarkar case illustrates very well that non-exclusive
rewarding works better for this type of innovative advance.

In the case of software and mathematics, you are usually, even with
difficult advances like that of Karmarkar, MP3 or RSA, in the lucky
position that not many people will be able to understand and imitate your
software so quickly that you wouldn't get enough reward by leveraging your
first mover adavantage.  Moreover the great advances are usually a natural
outflow of a network of mathematicians, in which some great sparks of
ideas will appear from time to time, without anyone being interested in
keeping things secret or needing an extra incentive for thinking or
publishing.  What is important is that the network is kept working.  For
that both a public effort and a good cooperation with a business community
are needed.  But the business community is the guest, not the motor of
this kind of development.

Karmarkar just got his idea due to his special background as a descendant
of an Indian mathematicians' family (with a nobel prize winner in it and
with some different ideas that were not common in the US at the time).
He had his one great idea just a few months after AT&T hired him away from
Berkeley.  It was not the result of any investment from AT&T, nor did
patenting offer any extra incentive.

I won't go into Fritz Machlup's "The Economy of Knowledge Production in
the United States" (1962) or ap the model of sequential innovation
(http://www.researchoninnovation.org/) here.  Those provide deeper
economic explanations and further reasons why just looking at difficulty
is not enough.

--
Hartmut Pilch
Federation for a Free Information Infrastructure        http://www.ffii.org/
Protecting Innovation against Patent Inflation	      http://swpat.ffii.org/
For a software patent free Europe PLEASE SIGN http://petition.eurolinux.org/




