From: rlk@underprize.think.com (Robert Krawitz)
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Date: 29 Sep 92 10:26:15
Organization: Thinking Machines Corporation, Cambridge Mass., USA
Distribution: usa
	<1992Sep28.202521.28752@rwwa.COM>
	<RLK.92Sep28183832@underprize.think.com>
	<1992Sep28.231847.28826@fcom.cc.utah.edu>
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In-reply-to: terry@cs.weber.edu's message of Mon, 28 Sep 92 23:18:47 GMT

In article <1992Sep28.231847.28826@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes:

   In article <RLK.92Sep28183832@underprize.think.com> rlk@underprize.think.com (Robert Krawitz) writes:

   Intellectual property is *not* worthy of "more/better protection" than
   physical property; I don't think anyone is arguing that.  It is, however,
   worthy of equal protection.

   The patent holder is only permitted to deny the right to make a copy if
   in so doing the copier benefits in such a way as to prevent the patent
   holder from benefitting as much as he would have (hence the legality of
   personal use infringement).

This is still much stronger protection than that granted on physical
property.  If you have a very nice chair, there's nothing to stop me
from making other chairs and selling them at a lower price than your
chairs.  BTW, the personal use issue still hasn't been settled on the
net -- I thought that even that was prohibited on the grounds that it
denied the patent holder revenue.

   The reasoning behind the patent protection granting limited monopoly to the
   inventor is quite clear in it's definition; however, I will restate it
   here:  "To encourage disclosure of new ideas to thus benefit society as
   a whole".  Society derives a long-term benefit from the idea being
   disclosed, even if individuals are denied a short-term benefit.  This is
   usable as a valid argument against software patents, in my opinion, in that
   the rate of change in the industry means that the potential benefit to
   society is amortized across a much shorter time than it would have been
   were it a physical invention.  By the time the idea is public property, the
   idea has generally lost all value.

True.  But even so, I think society would be better served by people
keeping ideas secret (or disclosing them and still making money on them)
and other people having the right to reverse engineer.

If there are to be patents, there should be some scheme (mandatory
nonexclusive licensing on fair terms) to enable other people to use the
invention.  One case of what I consider to be a failure of the patent
system is what's happening with RU486:  Roussel will not sell the drug
in the US due to pressure from antiabortion groups, but their patent
makes it impossible for someone else to step into the breach and
manufacture it.

   This is an argument for software patents as well, since there is a limit to
   the period that the idea may be held in monopoly intrinsic to the idea of a
   patent.  A copyright may be held a much longer time (perhaps even in
   perpetuity if properly acquired and managed).  A patent, on the other hand,
   guarantees that the idea *will* become public, eventually.

But the copyright gives protection only to the specific expression, not
to the concept (although granted Apple et al. are trying to extend that).

   The use of the patented idea for profit without license by a third party
   denies the person patenting the idea of the revenues which his monopoly
   guarantees him for the period of the patent.  The revenues guranteed by
   monopoly are the inventor's sole payment for disclosure (and eventaully
   loss of monopolistic or licensing rights to the device).  This is his
   incentive to disclose which society has agreed to provide him for said
   disclosure, which is deemed to be in the best ineterests of society.  Once
   again, society is taking the long view.

My opinion is that this is a mistake -- that society should not grant
monopolies on ideas for any reason, and that the loss from delayed
disclosure is less than the loss from no one else being able to use the
idea for profit (or otherwise) in the interim.
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