From: mcgregor@netcom.com (Scott Mcgregor)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Date: Tue, 29 Sep 92 07:41:00 GMT
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Distribution: usa

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

>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?

Law is the imperfect balance of costs and benefits to difficult real
world situations.  Your example covers the case where you have the
knowledge to make your own chair. But do I have the right to create a
chair in my locked workshop and hide it in my locked house and not
share with you how it was designed?  If so, and if there was something
VERY unique about my chair, and I found that you had one that was
exactly the same, might I not suspect that you had been trespassing in
my locked workshop and house?  Sure it is *possible* that you came up
with the same idea yourself, but the more unique the idea the lower
the likelihood of that coincidence in the eyes of the average
reasonable person. So, should trade secret intellectual property be
protected because of what it imputes about physical trespassing etc.?
How about in Copyright?  Sure it is POSSIBLE that the Beach Boys Surfing
USA sounding like a Little Richard song was a coincidence, but the
judge and jury weren't persuaded, because the coincidences were too
striking.  The claim of unique re-invention is suspicious even in
copyright law.

Now why was I keeping that chair a secret.  Presumably because I
thought it conveyed some advantage to me. But wouldn't society as a
whole be richer if many more could share it?  And presumably the more
innovative the more they would benfit--but what's (monetarily) in it
for me to share it? Some monetary reward might be just the incentive
to get me to share--could be an NFS grant, could be a patent, or maybe
something else. In the grant case your appointed representatives get
to take your taxes and give it to someone based on what they think the
value is.  How much money do you want to part with for these secrets?
How will you feel if your representatives choose the wrong things to
invest in?  In the case of the patent a few people (those capable of
re-invention) give up some freedom so that all of us can get access to
the secret.  If it turns out to be unimportant we aren't out a lot of
money like in the grant case, and the loss of freedom for the few less
and less the less important the invention.  Now the cost (both to
potential re-inventors and to the public) is higher if the invention
turns out to be really important, but then that increased importance
perhaps justifies the increased cost.  

Patents need not be the only reward system we use to encourage
innovation. But it has the advantage that it's true costs to society
are balanced against the true benefits in a real market situation.
Grants rely on our ability to predict the future, and awards and
honors after the fact may be to uncertain to induce upfront
investment.

The point about "stealing the chair" makes most sense from the point
of view of inventors talking to other potential inventors.  But
consumers outnumber inventors in this nation by a great many, and for
most of them if an idea isn't commercialized by someone else, it won't
ever benefit them.




-- 

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


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