From: terry@cs.weber.edu (A Wizard of Earth C)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Reply-To: terry@icarus.weber.edu
Organization: Weber State University  (Ogden, UT)
Distribution: usa
Date: Mon, 28 Sep 92 23:18:47 GMT

In article <RLK.92Sep28183832@underprize.think.com> rlk@underprize.think.com (Robert Krawitz) writes:
>In article <1992Sep28.202521.28752@rwwa.COM> witr@rwwa.COM (Robert Withrow) writes:
>
>   Patent law is just such a protection, balancing society's need for
>   technological innovation with the property rights of the inventor.
>
>This is a rather artificial "property" right, IMHO.  It's a much broader
>concept than ordinary property:  if you own a chair, it's theft for me
>to take the chair, but I'm certainly not infringing on your rights to
>use your chair by making or buying one for myself.  Whereas with patents
>you can deny me the right to make my own widget.  Why is intellectual
>"property" (OK, I'm biased, see my .sig) worthy of such greater
>protection than common property?  Why should the patent holder be
>permitted to deny anyone else the right to make a copy?  How does this
>infringe upon the right of the patent holder to use his widget?

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).

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.

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.

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.

The discrepency in the protection offered the artist (by way of copyright)
and that offered the inventor (by way of patent) reflects the value placed
on each by society at the time the protections were instantiated.


I believe that an entirely new category of protection, with the term
limitations of patents and the subsidiary benefits to the author of
copyright should be evolved for software.  We might call this a "software
patent", or not.  Certainly the almost perpetual ownership of software
techniques and processes does not benefit the industry in terms of advancing
the state of the art.

I believe that some processes and techniques will be protected, at the
preference of their authors, as trade secrets (many industrial processes
have been protected this way in lieu of patents in the past).  This would
not deny potential protection in the form of "patent", if the precepts of
the current patent law is adopted, since this gives up to one year post
disclosure to file for a patent.


					Terry Lambert
					terry_lambert@npd.novell.com
					terry@icarus.weber.edu
---
Any opinions in this posting are my own and not those of my present
or previous employers.
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