On Mon, 2011-08-08 at 10:05 -0700, Cédric Beust ♔ wrote: > On Mon, Aug 8, 2011 at 5:00 AM, Kevin Wright > <[email protected]> wrote: > > > That's certainly a worthy goal, but nobody has proven that > patents actually translate to a better deal for inventors. > > > Now, here is an angle that hardly ever pops up in these discussions, > thanks for bringing it up. And I am certainly more sympathetic to > discussing this than the tired (and incorrect) "Software patents > stifle innovation" (the US seems to be innovating just fine, despite > the flaws of its system).
A big problem is going to be the "first to file" rule, which means that the real inventor is extremely unlikely ever to win anything from the invention. This is especially the case if the inventor is a one man band or SME (unless the person happens to be a multi-millionaire). Another issue is the cost of enforcement for one man bands and SMEs; they basically do not have the resources to enforce patents. There are cases, so there is evidence. > * The fashion industry is remarkably successful, despite > the fact that clothes are classed as utilitarian (a > debatable point, for many designers), and so can't be > patented. > * Software innovation is working just fine in other > countries, despite the lack of patents. > Not so sure about this. It seems to me that a crushing majority of the > commercially successful software innovations that have been happening > for the past decades have originated in the US. Note that I inserted > "commercially successful" here, since it's the only one that really > matters in this debate. Obscure inventions that never generate any > money are not impacted by software patents since nobody bothers > fighting over them. Two reasons for that: USA is a fairly good place for innovation, and many innovations happening elsewhere have been snapped up by the US giants and shipped back to the US. There are cases there is evidence. So to say "crushing majority" is in one sense not wrong, but in another sense is a "how to lie with statistics". > Also, I think you will be hard pressed to find examples of countries > that are 1) active in the CS field and 2) don't have some sort of > software patent laws (the US and Europe are out, obviously, which > doesn't leave much). Technically in the UK software patents are not permitted. The UK is no inactive in the CS field. > * Linux has spread into places and enabled technologies > that simply wouldn't have happened if it had been > encumbered by the need to pay license fees. > Linux was indeed invented outside of the US and what was one of the > first things that its creator did when Linux started taking off? Move > to the US. Nothing to do with software patents. Specious argument. > Yes, innovation still continues in the US, but this doesn't > demonstrate that the patent system meets its stated goals, > innovation could well be happening *in spite* of patents. > > > Fair enough. All I'm saying is that the system can't be as broken as > abolitionists are claiming, the solution to this problem cannot be > "Let's abolish all software patents". Uuuurrrr.... yes it can. Just stating a position doesn't make it true, whichever way you want the argument to go. > The burden must surely be on showing that patents increase > innovation, and that they don't simply slow it down, or have > no effect (other than to line the pockets of lawyers and > trolls). Without evidence-based proof in either direction, it > seems illogical and irresponsible to argue for the continued > existence of a system that burdens taxpayers with the cost of > administering the patent office. > > > This is where we differ. Innovation is happening, so the system is > working, although maybe not optimally, therefore the burden of proof > is on people who want to change it. They need to prove things will > improve if we listen to them, and so far, they haven't produced much > besides endless circle jerk discussions on Hacker News and Slashdot. This is just two poles in a position where people seem to selectively find data, and edit arguments, to support their position. Kevin is right because I agree with his position but the argument above is specious because there is never going to be any objective data because the system is already in place and the null hypothesis can never be tested. I disagree with Cédric, so he is wrong, but more importantly, there is never going to be any objective data because the system is already in place and the null hypothesis can never be tested. So let's just forget all this "burden of proof" in this situation, is it a bullshit, specious argument technique worthy of only the most casuistic of sophists. The only actual data we have is that the USA has software patents and most other places don't -- at least not in the same way. The USA revolves around lawyers and court in a way the rest of the world doesn't. The USA has the large corporates and they either have patent warchests or they are rapidly buying in to them because to stay in business as a large corporate you have to play the game. If all the corporates decide to stop the game, then it can stop. If just one decides to continue then they all have to continue. Most of the English speaking market areas are dominated by the USA big corporates so that means corporates outside the USA also have to begin to play the game, at least in the USA. Only when the non-USA market is important compared to the USA market will anything change. That time is coming given the rate of expansion of the Chinese and Indian economies and the poor performance and debt ridden-ness of the USA and EU economies. Only politicians can change this situation, and only then will it happen if vested interest allows it to happen. Currently vested interest is using patents as tools of protectionism, so they are happy. This situation is now far beyond innovation and invention, it is about big corporate power games. Innovation is only of interest when earning per share demand it, which is generally not very often. Innovation is about small guys doing stuff and keeping the big guys off their backs until they want to make a trade sale and exit. Patents are an unnecessary encumbrance, or only needed as part of the exit strategy to make sale more interesting. The people who really benefit from software patents are the lawyers, and USA lawyers in a USA context at that. So if the USA wants to keep them fine as long as the USA doesn't insist on extra-territoriality of its legal system on everyone else -- cf. PATRIOT Act and the abuse of investigative powers in violation of local laws in the EU (whole other rant). Basically the big corporates need to keep the software patent spat local to the USA and leave the rest of the world to evolve in their own way, and find new ways of innovating -- in their own way. <rant/> -- Russel. ============================================================================= Dr Russel Winder t: +44 20 7585 2200 voip: sip:[email protected] 41 Buckmaster Road m: +44 7770 465 077 xmpp: [email protected] London SW11 1EN, UK w: www.russel.org.uk skype: russel_winder
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