From: mcgregor@netcom.com (Scott Mcgregor)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Distribution: usa
Date: Thu, 12 Nov 1992 08:05:47 GMT

In article <1992Nov5.163922.2616@zip.eecs.umich.edu> mcnally@quip.eecs.umich.edu (Mike McNally) writes:

>You seem to have either a gigantic blindspot or an intentional tendency 
>to ignore:

I'm not ignoring them. I recognize them.  But I merely claim that they
are only one side of the story. They are the parochial view of an
independent programmer.  There's nothing wrong with that. But what
about the parochial view of a manager with experience with licensing?
What about the parochial view of an investor in high tech companies?
What about the paorchial view of end users who only buy software from
Apple and Microsoft?  What about the management, shareholders and
employees of big companies like IBM and their parochial views?
What about the parochial view of resellers, retailers  and
license companies and even lawyers?  There are different costs and
benefits to each of these parochial groups.

The article in the constitution does not recognize any of these groups
as being more priviledged of consideration. Nor does the actual patent
statutes (with the acception that it implictly grants some
preferences to small companies vs. large, and in other respects to
patent attorneys and agents).  It certainly does not recognize the
case of the independent programmer or businessnesman as being
priviledged, much though such a recognition would personally benefit me.

So it is irrelevant to keep bringing up only the independent
programmer situation when the costs and benefits to others aren't
being considered as well.

>5)  Being an independent programmer without the financial backing of a
>    large software development house, I have neither the legal expertise
>    nor the financial resources to produce an acceptable patent application.
>    A substantial amount of innovation in the field of software comes from
>    small-time, independent programmers who would very often be either
>    forced to compromise their interest in their innovations by selling
>    their intellectual property interests to a firm that did have the
>    resources to pursue a patent or be locked out of protecting their
>    rights to their creation if they were either unwilling to compromise
>    those rights or unable to interest someone in financially backing them.

I am fully aware of this as it is my own situation. I am operating my
own small software and consulting firm. I don't have the financial
resources to get a patent at this time.  I don't have the financial
resources to sell my product at anywhere near what Apple or Microsoft
does either.  I'm looking for that kind of capital. There are possible
investors. Some of those investors might foot the bill for a patent if
it were relevant in this situation.  Some might insist on it as a
condition of investment. If patents weren't available some of the
latter investors would investo only in other high tech areas such as
genetics, or hardware, and it would be tougher to raise capital for
software. Its true that I might have to make some compromises to stay
in business and that I might have to work with other companies who
have more expertise and resources in remarketing and licensing so I
can concentrate on other areas of expertise such as R&D.  But I never
expected that being in business would be otherwise.

>    Patents, with the substantial cost of researching and producing an
>    application, dramatically favor those market players who have the
>    financial resources it takes to get them.  In the software world,
>    the richest players are often not the most productive innovators.

Yes, they often purchase innovations from the smaller players. They
are more likely to do so when there is strong intellectual property
protection.  When there is not they are likely to just copy from
scratch and cut the innovator out of any compensation. Hard Drive
hints that Microsoft has done this on occasion, and I have seen such
activities at my own past employers.

>    I think that reasonable persons will agree that the tremendous amount
>    and variety of innovation produced by the smaller players in the
>    game is a Good Thing. 

Yes.

> I'll leave it to you to figure out whether
>    the public would be well served by a system that puts the independent
>    at such a disadvantage that it would often be no longer worthwhile
>    for them to try to compete.

Unfortunately most of the public doesn't experience the same costs and
benefits that we do.  Getting software from Apple or Microsoft is easy
for them.  Getting it from an independent is considered a pain in the
neck. And if as I noted above the disadvantage is not so serious if
you are willing (or interested) in partnering with financial resources
or one of the larger companies who buy technology.




-- 

Scott L. McGregor		mcgregor@netcom.com
President			tel: 408-985-1824
Prescient Software, Inc.	fax: 408-985-1936
3494 Yuba Avenue
San Jose, CA 95117-2967



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