Violence is associated with cocaine largely because of its contraband status. If you remove the crime part of cocaine, you greatly reduce the incidence of victims.
Firstly they exist for technologies which could be made secret, but would benefit society more if they were made open.
But no informed, self-interested inventor is going to volunteer such information if the benefit for themselves is better as a trade secret. That's the point I'm making. Patents do nothing to interfere with trade secrets. There is the possibility of 'guilds' arising and keeping everything black box, but that does nothing to prevent independent engineering or reverse engineering. If you are afraid of trade secrets, then push to reduce the protections of trade secret law, and limit the terms of NDAs.
You are correct that that is a version of the free rider problem but you are ignoring the key difference. Extending a market for a product that already exists is not the same thing as inventing a completely new product.
I know they aren't the same, but both have the free rider problem, and interfering in this case would be ridiculous. It's ridiculous in the case of inventions as well, but we've been told medieval fairy tales about patents so we don't question it because it's 'common sense.'
Here is a better example. Developing a new drug to combat a disease costs many millions of dollars.
That's not an example of how we deal with the free rider problem outside of patents because it isn't outside of patents. You were asked to explain why 'inventors' are special snowflakes that deserve legal monopolies when everyone else has to deal with the free market.
By external incentive, I meant one outside of the free market system. Their salary is their incentive for doing their job, and if they never innovated, they would not be employed.
Giles Sutherland Rich, the judge responsible for a lot of the patent mess we had now, a man who practically saw patent worthy subject matter in his breakfast cereal, acknowledged that the expected ordinary progress of workers without incentives should never be patented. You acknowledge that the progress would happen, you just won't admit that the progress that happens without patents is so substantial. The reality is that most innovations are not patented because they are incremental changes that aren't worth filling out the paperwork for, let alone the various fees.
Regarding the free rider problem, I would recommend Mark Lemly's paper on the matter, where he points out that patents act very differently from physical property, where the free rider problem has been widely studied.
That is nonsense because you are applying a retrospective view of the problem. If it was so easy to accomplish and so obvious then why wasn't it done previously?
There are several possible reasons. The problem or the solution may not have been available before or may have been impractical. For example, the Raspberry Pi has enabled people do a lot of really cool things. The Raspberry Pi doesn't have superior functionality to computers that previously existed, but it is a lot cheaper. Someone could use a general purpose computer for practically every application it is seeing now, but a lot of them would be ridiculous since you are dropping hundreds of dollars.
Remember, even with something obvious, somebody is going to be the first to do so.
You are basically implying that an engineer of average skill is unable to develop anything innovative.
The ordinary undertaking of ordinary engineers do not need external incentives. They would make those innovations without the patent incentive.
Length of time it takes to solve a problem has little to do with the level of innovation involved
While the actual level of time spent is not indicative of the level of obviousness, the expected time for completion is. If any engineer in the fields could come up with the same solution in 6 hours, then it's obvious.
Given his history, it might be that they want to avoid the wasted time with the appeals that he would file, so they pass the buck to the next head of the patent office so that asshole isn't their problem. Seemed like it worked for quite a while.
Or somebody else figures out how to do it, as would be the case with virtually all things patented. If you can keep something a secret, you'd be a moron to get a patent. Talking about patents as the solution to trade secrets is idiotic, and nobody every brings to the table weakening of trade secret law, which would actually do something to solve this concern.
The free rider problem demonstrably does not prohibit people from starting businesses or continuing ones that already exist.
Actually, it can. Say I open up a pizzeria in a country where pizza is not popular. I spend a lot of time and money advertising and selling pizza to these people and start to build a successful business. Once it becomes popular there, Pizza Hut builds several franchises there.to capitalize on the newfound market. That's the free rider problem, and it applies to a business absent technological innovation.
Patents further the advantages of large companies more than independent entities by their very nature.
Regarding trade secrets, patents do nothing to reduce them as getting a patent on anything that could be kept a secret more than 20 years would be very foolish. If you intend to undermine trade secrets, then aim to get trade secret law pulled back.
More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process.
No, the first step in both is the use of an existing machine used for a purpose it was was commonly used before previously. You have the various sensors in the catalytic converter that are the input to the digital computer and the unspecified means through which PSA count is made into the input of a digital computer. The digital computer runs and algorithm in both, then it outputs the information in a way that communicates with a human, a displayed number and an alarm.
This goes back to what I was saying earlier: you're essentially rewriting the claim to remove any machine elements and then say that the resulting claim, stripped of patent eligibility, is magically ineligible.
You are taking a patent ineligible claim and just throwing 'on a computer' into it. 'On a computer' is the epitome of a post-solution activity. There is no meaningful description of how the PSA count will be input into the computer, the process of which might actually be patent eligible. Instead, we have a generic electronic element that puts an analog input in digital form and then outputs information to a display. The only potentially novel element is the formula.
First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.
Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm. In fact, if we consider a human an electronic device, the brain a processor, and one's mind's eye as a display, your patent works pretty well as a mental process without modification.
Now, of course, you'll say, "but they had wars! That's different!" but that doesn't address Switzerland, which is why I threw that in as an example.
My criticism of your choice would be comparing countries with much lower GDP as if they were valid points of comparison, and acting like a patent system ranks anywhere remotely near the top of the important changes made in that time. As for Switzerland, there were doing quite well in a number of industries before they had patents, and they adopted patents basically because the much larger Germany didn't like competitive markets.
Additionally, you can look even to the computer industry - the pace of innovation in hardware and software is hugely accelerating compared to the 1970s, before software was patented.
It's actually fairly consistent over time, but it's not linear growth, but instead exponential. Moore's law and all that stuff. Far more important than patents were advances in telecommunications. Technological progress strongly mirrors biological evolution, and trade and communication are how ideas have sex. We've seen very compelling evidence of this as countries that adopt isolationist policies end up falling behind. China being one of the most prominent examples.
On the contrary, the economics of trade secrets have been heavily studied, and there really is no doubt that destroying them is a social good. That leaves you two options - encourage people to voluntarily destroy them via patents, or seize them via Marxism.
That theory is just a ridiculous retcon created as other rationales have weakened over time. If something could be practiced effectively as a trade secret indefinitely, there would be no good reason to get a patent. Furthermore, patents are often used in conjunction with trade secrets to compliment them. A company can patent the parts that would be easily reverse engineered, and delay the reverse engineering of the other parts by blocking similar entries in the market.
Even if patents did destroy trade secrets, that doesn't mean that their existence is a net good, as the burden of a legal monopoly might outweigh the burden of a trade secret.
I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.
Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution activity.
But that impenetrable fortress shouldn't be expanded outward either.
It wouldn't be expanding, it would be returning to where it was before the CAFC went bonkers with their interpretations of SCOTUS precedent.
Your question presents a false dichotomy. Private companies and FOSS are not mutually exclusive, and in fact, most FOSS development is done by someone working for a private company.
As for convincing, it's important to remember that this is not a debate facing software experts, but judges, and there's no compelling reason to exclude government funded research. Perhaps separating it would be appropriate, but there's no reason to ignore it, especially since useful government research is going to be FOSS.
The start of a field is an incredibly nebulous topic since most fields have branched off from other fields,, and again, at the level you are talking about, almost all of it is going to be academic or government funded. And just for the sake of clarity, the CERN stuff was itself FOSS. I don't know why you feel the need to dismiss government funded research because it's fundamental to this conversation. One form of subsidy (direct funding) produces things that another form of subsidy (patents) doesn't. Even if the free as in freedom market couldn't deliver this degree of progress by itself, why use patents to bolster the market if they are merely a second rate tool?
Web servers started out open source, but since that work was government-funded it's a bit tangent to a debate about software patents.
Again, where is the support for that notion? I see that Apache, which would probably be the goto example, was based off a CERN project, but said project seems to be on about the same scale as WorldWideWeb. FOSS and proprietary software both tend to build on those kinds of things fairly equally, so the only real argument that would bring here is that core research often happens outside of the private sector, which is a pretty good argument against software patents.
Granted, you may be right about the very start of these fields, but that's a pretty pointless question. If we go with the very start of a field, it would probably be almost entirely academic.
As for CMS, Drupal and Wordpress would probably be the most notable heavyweights. Neither had a substantial government backing AFAIK.
You can probably get the broad concepts in a short while, but I doubt you are going to get much useful. Truly reverse engineering would probably be much more expensive than simply observing and trying to replicate the behavior. However, as you mentioned, the software field moves fast. The time it takes to study, replicate, and properly test will give a pretty decent head start. The reality is that most innovations and most patents cover fairly trivial concepts where release cycles by themselves are what is going to provide most of the real world advantages.
It's important to remember that software patents were practically non-existent before the 90s. Microsoft was a behemoth, and it only had a handful of patents, and not all of them were even software related.
Regarding the claim that most fields start off as proprietary, I would disagree. First of all, the notion of a software business is a fair bit newer than the business of licensing software. In pre-WWW market, proprietary software did tend to be dominant (although it's worth remembering that the notion of Free Software is circa 1984, so the model was hardly around). However, in markets that have emerged since then, such as web servers or CMS, FOSS has tended to dominate. So, your claim about historical trends would appear to be largely a matter of momentum, not a disparity in ability to innovate.
That GNU/Linux was originally a 'clone' doesn't mean that it hasn't been innovative. Generally, the GNU coreutils are more robust than pure UNIX, and there have been a lot of unique developments in the Linux kernel. The success GNU had before the Linux kernel led to their usage in commercial UNIX systems, and you can't create better software by mere cloning. Your claim is close to saying that a car design isn't innovative because it was trying to be a 4-door sedan.
Also, I'm a bit curious as to your claims that the web servers and browsers are government funded. The only thing I can think of is WorldWideWeb coming from CERN.
Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.
You are assuming that the value of software is largely in the broad ideas, while I would contend that good code is what makes good software and what will probably differentiate it in the long run. You are also neglecting the resources spent reverse engineering, that give the first mover an advantage. You are also neglecting that better code is going to generally be more flexible as needs change.
What if we do know why someone is in so much pain and they need a drug this powerful? There are people that will be in pain all of their lives, the nature of opiates ensures that they will eventually get used to their current dosage, and if they take more of the existing pills, their livers will be destroyed.
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Violence is associated with cocaine largely because of its contraband status. If you remove the crime part of cocaine, you greatly reduce the incidence of victims.
Cold porn is significantly less arousing than hot porn, so you would presumably get less potent erections.
But no informed, self-interested inventor is going to volunteer such information if the benefit for themselves is better as a trade secret. That's the point I'm making. Patents do nothing to interfere with trade secrets. There is the possibility of 'guilds' arising and keeping everything black box, but that does nothing to prevent independent engineering or reverse engineering. If you are afraid of trade secrets, then push to reduce the protections of trade secret law, and limit the terms of NDAs.
I know they aren't the same, but both have the free rider problem, and interfering in this case would be ridiculous. It's ridiculous in the case of inventions as well, but we've been told medieval fairy tales about patents so we don't question it because it's 'common sense.'
That's not an example of how we deal with the free rider problem outside of patents because it isn't outside of patents. You were asked to explain why 'inventors' are special snowflakes that deserve legal monopolies when everyone else has to deal with the free market.
Giles Sutherland Rich, the judge responsible for a lot of the patent mess we had now, a man who practically saw patent worthy subject matter in his breakfast cereal, acknowledged that the expected ordinary progress of workers without incentives should never be patented. You acknowledge that the progress would happen, you just won't admit that the progress that happens without patents is so substantial. The reality is that most innovations are not patented because they are incremental changes that aren't worth filling out the paperwork for, let alone the various fees.
Regarding the free rider problem, I would recommend Mark Lemly's paper on the matter, where he points out that patents act very differently from physical property, where the free rider problem has been widely studied.
There are several possible reasons. The problem or the solution may not have been available before or may have been impractical. For example, the Raspberry Pi has enabled people do a lot of really cool things. The Raspberry Pi doesn't have superior functionality to computers that previously existed, but it is a lot cheaper. Someone could use a general purpose computer for practically every application it is seeing now, but a lot of them would be ridiculous since you are dropping hundreds of dollars.
Remember, even with something obvious, somebody is going to be the first to do so.
The ordinary undertaking of ordinary engineers do not need external incentives. They would make those innovations without the patent incentive.
While the actual level of time spent is not indicative of the level of obviousness, the expected time for completion is. If any engineer in the fields could come up with the same solution in 6 hours, then it's obvious.
Given his history, it might be that they want to avoid the wasted time with the appeals that he would file, so they pass the buck to the next head of the patent office so that asshole isn't their problem. Seemed like it worked for quite a while.
Or somebody else figures out how to do it, as would be the case with virtually all things patented. If you can keep something a secret, you'd be a moron to get a patent. Talking about patents as the solution to trade secrets is idiotic, and nobody every brings to the table weakening of trade secret law, which would actually do something to solve this concern.
Actually, it can. Say I open up a pizzeria in a country where pizza is not popular. I spend a lot of time and money advertising and selling pizza to these people and start to build a successful business. Once it becomes popular there, Pizza Hut builds several franchises there.to capitalize on the newfound market. That's the free rider problem, and it applies to a business absent technological innovation.
Patents further the advantages of large companies more than independent entities by their very nature.
Regarding trade secrets, patents do nothing to reduce them as getting a patent on anything that could be kept a secret more than 20 years would be very foolish. If you intend to undermine trade secrets, then aim to get trade secret law pulled back.
No, the first step in both is the use of an existing machine used for a purpose it was was commonly used before previously. You have the various sensors in the catalytic converter that are the input to the digital computer and the unspecified means through which PSA count is made into the input of a digital computer. The digital computer runs and algorithm in both, then it outputs the information in a way that communicates with a human, a displayed number and an alarm.
You are taking a patent ineligible claim and just throwing 'on a computer' into it. 'On a computer' is the epitome of a post-solution activity. There is no meaningful description of how the PSA count will be input into the computer, the process of which might actually be patent eligible. Instead, we have a generic electronic element that puts an analog input in digital form and then outputs information to a display. The only potentially novel element is the formula.
First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.
Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm. In fact, if we consider a human an electronic device, the brain a processor, and one's mind's eye as a display, your patent works pretty well as a mental process without modification.
My criticism of your choice would be comparing countries with much lower GDP as if they were valid points of comparison, and acting like a patent system ranks anywhere remotely near the top of the important changes made in that time. As for Switzerland, there were doing quite well in a number of industries before they had patents, and they adopted patents basically because the much larger Germany didn't like competitive markets.
It's actually fairly consistent over time, but it's not linear growth, but instead exponential. Moore's law and all that stuff. Far more important than patents were advances in telecommunications. Technological progress strongly mirrors biological evolution, and trade and communication are how ideas have sex. We've seen very compelling evidence of this as countries that adopt isolationist policies end up falling behind. China being one of the most prominent examples.
That theory is just a ridiculous retcon created as other rationales have weakened over time. If something could be practiced effectively as a trade secret indefinitely, there would be no good reason to get a patent. Furthermore, patents are often used in conjunction with trade secrets to compliment them. A company can patent the parts that would be easily reverse engineered, and delay the reverse engineering of the other parts by blocking similar entries in the market.
Even if patents did destroy trade secrets, that doesn't mean that their existence is a net good, as the burden of a legal monopoly might outweigh the burden of a trade secret.
Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution activity.
It wouldn't be expanding, it would be returning to where it was before the CAFC went bonkers with their interpretations of SCOTUS precedent.
Your question presents a false dichotomy. Private companies and FOSS are not mutually exclusive, and in fact, most FOSS development is done by someone working for a private company.
As for convincing, it's important to remember that this is not a debate facing software experts, but judges, and there's no compelling reason to exclude government funded research. Perhaps separating it would be appropriate, but there's no reason to ignore it, especially since useful government research is going to be FOSS.
Your example is almost identical to Parker v. Flook. The requirement for hardware is not an excuse because we need our brains to think.
As for 101, it is supposed to be a low bar, but there's supposed to be an impenetrable fortress around those exceptions.
The start of a field is an incredibly nebulous topic since most fields have branched off from other fields,, and again, at the level you are talking about, almost all of it is going to be academic or government funded. And just for the sake of clarity, the CERN stuff was itself FOSS. I don't know why you feel the need to dismiss government funded research because it's fundamental to this conversation. One form of subsidy (direct funding) produces things that another form of subsidy (patents) doesn't. Even if the free as in freedom market couldn't deliver this degree of progress by itself, why use patents to bolster the market if they are merely a second rate tool?
Again, where is the support for that notion? I see that Apache, which would probably be the goto example, was based off a CERN project, but said project seems to be on about the same scale as WorldWideWeb. FOSS and proprietary software both tend to build on those kinds of things fairly equally, so the only real argument that would bring here is that core research often happens outside of the private sector, which is a pretty good argument against software patents.
Granted, you may be right about the very start of these fields, but that's a pretty pointless question. If we go with the very start of a field, it would probably be almost entirely academic.
As for CMS, Drupal and Wordpress would probably be the most notable heavyweights. Neither had a substantial government backing AFAIK.
You can probably get the broad concepts in a short while, but I doubt you are going to get much useful. Truly reverse engineering would probably be much more expensive than simply observing and trying to replicate the behavior. However, as you mentioned, the software field moves fast. The time it takes to study, replicate, and properly test will give a pretty decent head start. The reality is that most innovations and most patents cover fairly trivial concepts where release cycles by themselves are what is going to provide most of the real world advantages.
It's important to remember that software patents were practically non-existent before the 90s. Microsoft was a behemoth, and it only had a handful of patents, and not all of them were even software related.
Regarding the claim that most fields start off as proprietary, I would disagree. First of all, the notion of a software business is a fair bit newer than the business of licensing software. In pre-WWW market, proprietary software did tend to be dominant (although it's worth remembering that the notion of Free Software is circa 1984, so the model was hardly around). However, in markets that have emerged since then, such as web servers or CMS, FOSS has tended to dominate. So, your claim about historical trends would appear to be largely a matter of momentum, not a disparity in ability to innovate.
That GNU/Linux was originally a 'clone' doesn't mean that it hasn't been innovative. Generally, the GNU coreutils are more robust than pure UNIX, and there have been a lot of unique developments in the Linux kernel. The success GNU had before the Linux kernel led to their usage in commercial UNIX systems, and you can't create better software by mere cloning. Your claim is close to saying that a car design isn't innovative because it was trying to be a 4-door sedan.
Also, I'm a bit curious as to your claims that the web servers and browsers are government funded. The only thing I can think of is WorldWideWeb coming from CERN.
Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.
You are assuming that the value of software is largely in the broad ideas, while I would contend that good code is what makes good software and what will probably differentiate it in the long run. You are also neglecting the resources spent reverse engineering, that give the first mover an advantage. You are also neglecting that better code is going to generally be more flexible as needs change.
I suspect that before the threatening letter goes out, there's is some human employed that could possibly take the blame.
What if we do know why someone is in so much pain and they need a drug this powerful? There are people that will be in pain all of their lives, the nature of opiates ensures that they will eventually get used to their current dosage, and if they take more of the existing pills, their livers will be destroyed.