Re: Back to the basics of patents... (Was: Re: [Patents] OT? : Patent for games...)

[<xdrudis@tinet.org>]

>  The assumption that if patents apply or not in one field, that this
> applies to all fields, doesn't make sense to me.  There are a wide 
> varietyof justifications for market monopolies in the form of 
> patents, but
> regardless of which one you subscribe to it must be tested for each 
> typeof 'invention'.
> 
>

Exactly. For software, games, and all forms of informational creations, 
the question is not at all whether the creation is useful, not even 
whether it is worthy or has lots of merit. The question is: would we have
more of this good thing with patents or without?. If with patents: is
this extra amount of good things more important that the loss of freedom
that patents impose?. 

In economic terms, the balance is good for patents for pharmaceuticals,
provably (I'm no specialist in that field, and I believe we should ask
the people doing research in each field, not me). 

IT is not for software. Because you can protect the expensive part of
software development with copyright. You can't protect the application
of the same ideas, but since software ideas are cheap, that's irrelevant.

You won't have more innovation on software (or games, or any
intellectual activity) because there is no way to compete in software
except by innovation. And the only way not to compete is habing a
monopoly (such as given by a patent). 

For empirical research, in which you need to build laboratories,
experiments and prototypes before you reach a useful idea, you may get
more people doing it if they can protect the application of that idea. 
For research in things that work inside a defined mental model, or
formal model, like math, software, games, social interaction, language,
etc. 
you don't need this investment in measurement and prototypes. 

In other words, when you have a formal model and work inside it you need
a different investment than when you have the real world, nature, and
work with a model that approximates nature, so that you have to verify
your solution works in real world, not only in the model you have. 

So the right criteria for patentable matter is whether the innovation
improves or knowledge on how to use nature and matter for pratical,
repeateable, overseeable purposes. 

>  If the purpose of patents are to create stability to 
> encourage/protecteconomic investment, then this assumption needs to 
> be tested.  Maybe this
> argument applies to medicines, but not to software.  I know that my
> feelings about drug patents are not the same as my feelings about 
> softwarepatents, largely because the question of 'interoperability' 
> and the
> diversity of the size of the players are very different.
>

This diversity of players is a consequence of not needing the same kind
of investement. 

For empirical research you need investment in labs, etc. to get the idea, 
and copying it is coparatively cheaper, so patent protection of
application of your idea is useful 

For intellectual creation you need little investment on the idea and
much investment on realising the idea (coding the software, managing the
innovative business so that it delivers on its promising idea, writing
the proof of your theorem in an exact, sound way, skillfully writing the
novel from the imagined plot, etc.). This is expensive intellectual
investment is either protected by copyright (like with software,
literature, cinema...) or by other means (like business, etc.). Ideas 
themselves do not need protection, and it would only lead to less
innovation.

> 
>  We then need to get to practicalities of administering the 
> system. I 
> doubt there will be an argument to end all arguments on patents, 
> and we 
> will be left with some winners and some losers.  One thing we can 
> say is 
> that nobody believes that 100% of software patents currently 
> granted by 
> the USPTO are legitimate.
>

This is a bit irrelevant. Assume all patents were granted right and 
decide whther the patent system is useful in a given field. Only if you
find it useful, then look at whether the patent system may be made to
perfom close enough to the ideal way. If not, then there is still a
practical reason to discard it in that area, if yes then there is a
reason to fix it. 


>  Is it realistic to expect any patent office to just "get their act
> together"?  Human nature suggests that they will want to become more
> relevant to the economy, so even beyond the other examination problems
> (getting paid to grant patents rather than paid to provide audited
> documentation on grant/denial) we have a built in bias.
>

It is realistic only with changes to the incentive system, probably. 
  
>  Some of these include ensuring that the entire collection of 
> Free/Libreand Open Source Software automatically become part of all 
> patent offices
> searches for prior art.  Will this solve the problem?  I am not a 
> patentexaminer, but I know that I can't keep track of all the Free 
> Software that
> is being developed even in the narrow parts of computer software 
> that I
> follow.
> 

True. But please note the problem is not only novelty, but subject matter.

> 
>  My own favorite is to create a "Fair Use" doctrine in patent law 
> thatwould exclude Free/Libre and Open Source Software from patent 
> infringementclaims, leaving the software patent battle to be only 
> between the
> royalty-based businesses.  We let them fight this out, expending 
> more and 
> more of their business resources on patent litigation -- all the 
> while we 
> out-innovate that entire sector out of business.
>

This would condem the "royalty-based" business. I like free software and
want it to generalise further, but not by imposing patents on non-free
software. We need a cultural change, not a royal decree. 

Anyway: either you have arguments to outlaw nonfree software, or you have 
not. If you have, don't advocate patents for nonfree software, advocate
a ban (I don't think this is wise). If you have not,  you still need to
offer a justification for nonfree software patents, and I can't see any. 

The rigth solution is no swpats, a fair playing field, and let people
decide what software they produce and they use. 

> 
> 
>  I do believe that suggesting that the costs of software patents, 
> both to
> creators and to the patent office, far out weigh the benefits is a 
> veryvalid position to have.  While the "Fair Use" concept does have 
> an added
> side effect of promoting Free Software against proprietary 
> software, it is
> unfortunately an unlikely option.  The "just say no" answer is the 
> nextbest thing.
> 

oops. Sorry, then we agree.

> 
> 
> 
> 
> By the way:  I gave the old "software is just mathematics, and
> mathematical methods cannot be patented" argument a spin around the 
> block(Meaning, I thought about it for a while ;-).
> 
>  I (unfortunately) had to agree with those who don't buy this 
> argument.  
> I thought about how Unified Modeling Language (UML) is being used 
> to model
> many real-life processes, many of which are patentable, and didn't 
> see how
> UML could be distinguished from software.
>

Please don't mix the model with the world. They are different realities. 
In software or math a formal model exists, and our creations work inside
it. No need to test nature. In real-life processes, at least those that
should be patentable, there is a nature, and a model that approximates
(note: approximates, not defines) it. You still need observation
(experiments) to see that your model (whether UML, first order logics,
C, math notation, or plain text natural language, or a patent
description) really captures the useful part of the real world. 

Note that confussing the real world with its description leads to the
possibility of patenting patents, since patents must offer a description
of a real world process or apparatus. The purpose of the patent system
is publicizing this description, but monopolising the described process
or apparatus. You can't do this if you try to take as process or
apparatus  something which is a description itself, pure information
(software, math, UML models).