From: Rafal Smigrodzki (rafal@smigrodzki.org)
Date: Sun Mar 09 2003 - 16:34:55 MST
----- Original Message -----
From: "Christian Weisgerber" <naddy@mips.inka.de>
Newsgroups: list.extropians
To: <extropians@extropy.org>
Sent: Sunday, March 09, 2003 12:38 PM
Subject: Re: Do patents really foster innovation?
> Dickey, Michael F <michael_f_dickey@groton.pfizer.com> wrote:
>
> > I would certainly be interested to hear what extropians think of Patents
(at
> > least, mechanical innovation patents)
>
> Coming from the IT/software/Open Source side of things, I am extremely
> skeptical of patents. The patent system seems to reflect a 19th
> century outlook on a mostly static, mechanical world which is wildy
> at odds with a fast moving 21st century world increasingly dominated
> by software and information.
>
> One of the basic themes on this list is progress and in fact the
> accelerating speed of progress. If you measure the subjective time
> of a patent grant not in years but by the amount of change taking
> place in the meantime, then the current fixed n-year objective
> lifetime means that patents are running for an ever increasing
> subjective time. Back in the 1800s, a time to market of a decade
> may have been realistic. Nowadays, a company may not even remember
> its products of a decade ago. Current patent lifetimes of ~20 years
> are an eternity.
>
> A patent protects against a competitor simply stealing the inventor's
> blueprints and outproducing him. (There are also more specific
> laws against the theft of business secrets, which I'll ignore here
> for the sake of argument.) I think most of us consider that a good
> thing.
>
> A patent also protects against a competitor seeing an invention and
> reproducing it more or less independently. Once you know that
> something can be done, figuring out how to is usually less difficult.
> I think the virtue of this sort of protection is not so clearcut,
> since we are not talking about blind imitation but about people
> being partly creative in their own right.
>
> A patent also protects against a competitor coming up with the same
> thing entirely independently without ever having heard of the
> original invention. It effectively screws out the second inventor
> of his investment. And as progress keeps accelerating, such parallel
> development becomes more and more common. I think this type of
> protection is objectionable. Of course, in practice, it may be
> impossible to prove whether a design was imitated or arrived at
> independently.
>
> Nominally, a patent protects a single invention. This may have
> been true in the steam age, when some tinkerer invented a great,
> fuming foobazler. Nowadays you have to consider that the patent
> protection effectively also reaches out to anything that is based
> on a foobazler or includes a foobazler somewhere as a small part.
> A patent removes a whole path of development from that available
> to the competition. Again, this wasn't such a big issue when
> progress was slow, but with the current and accelerating turnover
> of technology this is an ever growing obstacle to further progress
> in the direction covered by the patent. Obviously this is even
> worse for broad or generic patents that cover methods of doing
> things rather than actual devices.
>
> If you talk to some crypto people, they will tell you that the RSA
> patent was rather more successful in preventing widespread adoption
> of cryptography than US export regulations. You may also have heard
> of talk in Green circles of acquiring patents with the express
> purpose of obstructing biotech research.
>
> Patents have become a part of business, but in ways that do not
> deal with protecting the inventor's investment. There are so many
> patents that have been granted that it is virtually impossible for
> engineers to check whether their product violates any of them.
> Corporations recognize this and try to build comprehensive patent
> portfolios for offensive and defensive action. That competitor
> there cuts into your market? Sue him for patent infringement.
> Simply by being in the same market segment he is bound to accidentally
> run into your patents. Somebody sues you for patent infringement?
> Countersue them, they're likely to violate some of your own patents.
> Big companies, who hold numerous patents, have little to fear. With
> their fat portfolios they negotiate cross-licensing contracts with
> the other big players. For small companies, upstarts, the much
> touted garage inventors, the perspective is very grim. Patents
> that cover only part of a complex product or are so old that people
> already consider the idea as common knowledge can be used as a
> weapon to suppress competition.
>
> A favorite are submarine patents. Take out a patent on an invention
> that lies in the mainstream of technical development. Don't develop
> any product, just sit back and wait some years. By now the market
> is full of products that, unbeknownst by their creators, infringe
> on your patent. Even better if it has become part of some standard.
> Have your lawyers write threatening letters and watch the royalties
> rolling in. This looks like a perversion of the ideas behind the
> patent system, but it is neverless sanctioned by it.
>
> Then there is reasonable licensing. In theory, a patent holder is
> obliged to license his invention to competitors at a reasonable
> fee. In practice, it is not clear what a reasonable fee constitutes.
> And I wish you good luck enforcing this of a patent holder who
> simply doesn't want to grant any licenses. In the times when an
> invention equalled a product, this was of little concern. But
> nowadays an invention may affect thousands of products and a patent
> may keep them from coming into existence.
>
> As an Open Source person, "reasonable licensing" translates to
> prohibition for me. Since I don't charge anything, there is no way
> I could recoup even a minimal license fee. Patents assume that
> every invention and use of an invention takes places in the setting
> of a for-profit business. The patent system punishes the Open
> Source world for stepping outside of this traditional setting. A
> patent effectively removes an invention from the Open Source economy.
> In the Open Source setting, each patent destroys a piece of (potential)
> progress and the path behind it. In this context, patents are
> unmitigated evil.
>
> In short: Although I can understand the moviation behind the patent
> system, I consider it at best as of dubious value and ill-adapted
> to the times.
>
> Like other posters in this thread I come from a particular background
> that necessarily influences my views. For example, I have no idea
> whatsoever how the pharmaceutical industry operates and I can't
> judge the value of the patent system in that context. In the
> computer industry, patents help the biggest players to establish a
> chokehold on everybody else and kill diversity and progress.
>
> --
> Christian "naddy" Weisgerber naddy@mips.inka.de
### You made many good points. I fully agree with you that the current
patent system suffers from many problems. Especially in the case of
software, there are many patents (I am being told) which do not really pass
the "obviousness" test - whether the patent content is truly a novel
development or merely a routine extension of existing methods (like the
infamous "one-click online shopping" patent). One way of assuring that such
patents are not granted would be to have the patent office publish a
description of the patent claims, without explanation of the patented idea
itself, and have the public examine and come up with the idea independently,
within some specified period of time (e.g. 1/20 of the proposed duration of
the patent). If it is truly novel, hardly anybody will come up with the
trick on their own, and if they do, they will share in the royalties (e.g.
1/4 for the second inventor, 1/8/ for the third, etc.). If the idea is
obvious, there will be too many inventors calling in with their independent
derivations, making it impossible to get any royalties at all due to the
lack of an effective monopoly situation. Also, this trick would limit the
duration of patent protection - asking for too long a period would leave too
much time for competitors to call in their proposals.
Another trick might be to limit the number of patents that can be held by
one legal entity (e.g. increasing the price of the patent exponentially with
each patent). This would not impact the lone inventor, but would prevent
companies from amassing patent portfolios for extortion purposes, and would
force them to sell the patents to management companies which would have
strong incentives to license the patents to the maximum number of users.
You could even allow private bidders to force an auction of a patent
(similar to what I proposed in the "Private roads" thread).
You can give the "fair use" exemption to all non-profit uses, including
OpenSoftware projects.
There are methods of making it work.
Of course, companies unwilling to put up with this system could always use
secrecy to shield their ideas. No coercion here.
Rafal
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