From xdrudis@tinet.org  Sun Nov  4 23:51:30 2001
From: xdrudis@tinet.org (Xavi Drudis Ferran)
Date: Mon, 5 Nov 2001 00:51:30 +0100
Subject: [Patents] More on why business methods are technical (fwd)
In-Reply-To: <200111031712.MAA11119@world.std.com>
References: <200111031712.MAA11119@world.std.com>
Message-ID: <20011105005129.A447@golem>

El Sat, Nov 03, 2001 at 12:12:51PM -0500, Gregory Aharonian deia:
> I agree with Hartmut that there is one key essential argument behind all
> of these discussions on the patenting of software, hardware, business
> methods, genetics, etc.  The key issue is in Hartmut's words, this idea
> of "controllable physical forces", or my preference, "patenting 
> non-physical processes".  This issue is what is underneath the partially
> thought out semantics of the EPO's Pension Patent decision - that
> business methods don't achieve a technical effect - with one view of
> technical effect being a physical result in the claimed process.
>
I'm happy to read you dialoguing again. 

> How you answer the question depends on your view of the evolution of
> society and laws.  Hartmut prefers to stay in the past, when most
> inventions and case law was grounded in "physical" inventions, such as
> those traditionally thought of as mechanical.  This was a time when such
> inventions made up a large part of the economy, and therefore not
> surprisingly were the basis for much case law for patenting.  For
> example, about 20 years ago in the United States, half of all patents
> were mechanical, 35% chemical and 15% electrical.  Going back further I
> suspect even more patents were mechanical and less electrical (the
> electrical being where the boundary blurs between physical and
> non-physical).
> 
> However, presently about 30% of US patents are mechanical, 35% chemical
> and 35% electrical (and I suspect similar percentages hold up around
> the world).  We see clearly that the role of the mechanical, the
> physical, is diminishing in importance to the economy.  Indeed, daily
> we are flooded with talk of the global information economy, the global
> service economy, etc.  I wouldn't be surprised one day to learn that the
> farms of America, farming being very mechanical and physical, were being
> run by one human and a large number of computerized machines.
>

So in the industrial society, when the principal economic activity was
(chain) production of big amounts of physical goods, the (minority, scarce)
creativity in developing new ways of doing so was awarded limited monopolies. 
Maybe because of that, or for some other cause, things have evolved 
so that increasingly the principal economical activity is creativity 
and knowledge work, information economy or whatever they call it. 
You seem to be taking the lesson that if patents were good for the 
industrial economy when applied to physical processes they'll be good 
for the new information economy when applied to logical thought. 

I disagree. For me the fact that creativity is now the main activity 
in this new information economy, it needs freedom from interference 
by granting monopolies on it, just as no monopolies were granted for 
mere production of goods in the industrial age. Production of goods 
was what people did for a living, and needed no incentives. Incentives
would have been perturbing, and free market was left alone in production.
Incentives were reserved to the scarce activity. To the creativity 
needed to improve the system but that might be undervalued  because 
it was not a profitable investment. Setting up a factory was a more 
profitable investment that discovering a new manufacturing process, 
although society benefit more from the later, so monopolies were awarded 
to those that left the local optimum aiming for the global one. 

Now that creativity has become the main ecomical activity, it should
be left uncumbered by patents, and monopolies should only be awarded 
for some activity that is not profitable on its own but desirable 
for society, for anything that leads to a global optimum and away 
from local optimums. I don't really know what that could be if it 
exists, maybe environmental protection, fair play, sustainability, 
social responsability, public health, global peace
 or something else, although I tend to think 
of things that should be compulsory instead of simply stimulated 
by awards such as monopolies. 

In any case, I don't think programmers should be awarded monopolies 
for new algorithms in the new economy any more that production line 
workers were awarded monopolies for tightening bolts in a new unit 
of the current model of car in their factory. And the same goes for 
economists who find new auction models and in general any knowledge 
worker who finds new solutions to problems by thinking about it. 
 
Does that mean that patents make no sense in information economy?. 
Yes. 
Does that mean that all patents should be abolished?.
Possibly no, because information economy is not the only economy we have. 
There are several different systems in existence, there is 
an industrial economy, an information economy and some others, 
and patents may be good for the industrial economy, so if they 
want them let them have them. 
But most people in information economy do not want patents in their 
respective fields, so we should avoid them. 

And the borderline that Hartmut proposes is the best (for its  
effects) and the soundest (for its internal coherency) that I've 
heard of, so I say go for it (or better, stick to it). 

> So the dilemma is this - to we allow the patent system to evolve to handle
> the types of processes, in this case "non-physical", that are becoming the
> predominate part of the economy, or argue as a fundamentalist - that the
> patent system was spawned in a mechanical/physical world, and should never
> evolve?
>

Let us let the patent system evolve in the information economy as 
dinosaurs did. Evolution is merciless.
 
> I doubt anything Hartmut says will convince me to abandon my position,
> and I doubt anything I way will convince Hartmut to abandon his position.
> The question for the rest of Europe is which position makes most sense
> for the European economy.
>

The question for Europe is to listen to professionals involved instead 
of to wannabe monopolists and wannabe colateral beneficiaries.  
 

-- 
Xavi Drudis Ferran
xdrudis@tinet.org


