Re: [Patents] Cryptographic patent... and research.

[Russell McOrmond <russell@flora.ca>]

On Wed, 9 Jul 2003, David GLAUDE wrote:

> I can understand that MP3 compression tell us something about the force 
> of nature since the filtering of sound that human do not hear is not 
> something that can be done without real testing.
> 
> I don't see how LZW tell us something about force of nature.
> 
> And RSA, even if great tell us nothing about nature, is not technical 
> but just a great formulat that should be free as E=MC^2.


  This is one of the reasons why I don't agree with some of the legalistic
discussions in this list about whether something is 'technical' or not.  
I don't believe that there is an easily determined difference between MP3
compression and LZW compression in whether patent monopolies should be
offered.

  Patentability should not rely solely on technical analysis of the
subject matter any more than it should rely only on legal interpretations
(of laws that were created before much of the art under consideration
existed).


  We should always go back to first principles to analyze any public
policy.  If you believe that patent monopolies should be granted as some
sort of moral right, then you get stuck with the current situation --
technical or not.  In this case both LZW and audio compression would
receive patents.

  I don't believe that government enforced protectionism (against
competition), forced business models or royalties constitute a legitimate
moral right but are examples of economic privilege.  There are aspects of
moral rights which I do believe should apply to methods (patents) as much
as expressions (copyright), such as recognition of the inventor/creator.

  If on the other hand patent policy is an alternative to trade secrets
that offer public disclosure, or as an economic incentive for innovation,
then you need to do analysis of each different subject matter to determine
if this policy goal is being met.

  If a given subject matter has alternative incentive models and
alternative disclosure models, then it becomes highly questionable whether
the patent incentive/disclosure model should be the only model protected
by governments.

  Even though a requirement for government incentives in the form of
software have not been demonstrated at all for software, Free/Libre and
Open Source Software offers an entirely different incentive/disclosure
model.  Governments should be offering as much (if not more given other
public policy advantages)  protection for FLOSS incentive/disclosure
models in software as is currently being offered for the (incompatible)  
patent model.


  There also should be analysis of the functioning of the patenting system
itself as it relates to patent quality.  If something of the nature of the
market for a given subject matter is such that patent quality can not be
offered at higher than 90-95%, then it is questionable whether patents
should be offered at all.

  Whether it is the patent office or the subject matter that is the
problem, the onus should be on the patent lobby to prove a functioning
patent system in a given subject matter before patent monopolies are
offered.  Currently we have 5-40% validity, depending on what study you
trust, of USPTO granted software patents which is itself justification
enough not to offer patent protection on software.

  This test of the mechanics of the patent system is a practical analysis
that has absolutely no connection to whether or not the subject matter is
technical or not, but should have a huge bearing of whether subject matter
should be patentable or not.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/