🚀 go-pugleaf

This discussion is getting out of hand.  I did not intend this, and I am
sorry for the extent to which my comments contributed to it.

It seems to me that, in order to get anything out of the discussion, it
will first be necessary to deal with the things which get in the way.
It will necessary to set limits simply to avoid a generally useless
experience:


 1. The undefined phrase "software patents" can and does take on various
    meanings in discussion, and this contributes to an inability to
    confront any real differences.

 2. It is necessary to bound the discussion.  If one problem is that it
    is impossible to "accept" that an independent re-invention of a patent
    does not also give patent rights, then we are discussing patents in
    general, not "software" patents.  If this only comes up because it
    happens to interfere with the perceived result of *software* patents,
    it will be almost impossible to resolve.  And if it cannot be resolved,
    there is virtually nothing left to discuss.

 3. It is necessary to accept what a patent is, and to clearly distinguish
    between an "idea" and a "patent," and, especially, a *software*
    patent.  The fine fuzzy feeling that one has "had" a particular idea,
    but was not able to clearly enunciate or specify that idea, indicates
    that the idea was not sufficiently precise to patent.

 4. It is also necessary to accept that patents are economic tools.  Many
    strange liability possibilities would be handled almost automatically
    in licensing negotiations.  But requirements which would seem fairly
    modest for a running business would be considered unacceptable for
    freeware (even when someone makes money from its support).  The
    question then arises whether solving this problem would lead to an
    acceptable compromise, whether inconsistency across software could be
    tolerated, and what effect consistency would have on hardware rights.
    If there is only one fixed position, there is no discussion.

 5. Selecting particular bad examples of patents is not particularly
    helpful because we would naturally be forced into examining only the
    *worst* of the patents, and never even find the rest.  We would "never
    see the forest for the trees."

 6. If particular patents *are* to be examined, then it is necessary to
    *examine* the *specific claims* of that patent (in the context of the
    body), rather than hand-waving generalities around.  A "casual"
    discussion of a patent is pretty much a waste of time.  Copies of the
    patent from the PTO would take a month or two.  So expect this to be
    tedious and contentious, and far less exciting than simply branding
    the patent as ridiculous.
       It is really irritating to see repeated statements about what
    some patent "would" or "does" cover, without a considered and
    unbiased examination of the facts--which both sides should accept--
    to back those statements up.  It is not appropriate argumentation
    to make a whole series of claims, then ask the opponent to do
    research to refute a now long-forgotten but generally accepted
    point.  In any case, *I* find it unacceptable.

 7. There are multiple "reasons for the existence" of patents.  Because
    patents are subject to man's fixed laws, it is unreasonable to
    expect that every patent will support all, or, occasionally even
    *any* of those fundamental reasons.  Even a heinous example is
    only an indication that the system did not work *in that case*.

 8. Our society under law is constantly torn between "the good for the
    society" and "protection of the individual."  It is unreasonable to
    expect that there will be no conflicts or examples of strain in any
    law when applied to real life situations.  Problems which occur are
    not necessarily examples of overall bad law.

 9. In order to have this discussion, there must be some way to compare
    worth, in order to support agreement on what is to be kept and what
    to be changed.  If we are discussing "software patents" and find that
    in order to prevent them we must damage "hardware patents," then we
    are talking about a large chunk of the patent system. The point is
    that, if this is the discussion, it is a far different proposition
    than simply "software patents."
       Frankly, to this point, it has been breathtakingly easy to argue
    that all those hardware guys (and their industry) will be better off
    even *if* we have to eliminate their patent environment.  Any
    reasonable discussion must consider this to be some amount of risk
    for all of us.

10. It will probably *never* be possible to show that a patent was or was
    not "required" for any particular development; this is a "post hoc
    ergo propter hoc" fallacy.  Presumably it might be possible to have
    *testimony* on a specific patent, or on the general dynamics of an
    industry.  But whatever the testimony was, its opposite side would
    probably brand it as biased or an improper generalization, so such
    testimony is probably worthless.  This limits the entire ability
    to make a case as to the utility of patents, not because there is no
    case, but simply because one can only guess what "might" have
    happened in each untaken alternative.  In that respect this sort of
    discussion must be simultaneously less informed and more demanding
    than a court of law.

11. It must be possible to separate personal principles ("rights") from
    those which are recognized by society.  The problem in doing this
    is that, if things are to change, then these are one possibility.
    The problem with *that* is that these may not be consistent with the
    rest of our laws.  Clearly, *all* "rights" are eventually limited,
    if not by society, then simply by colliding with other "rights."

12. It is necessary to accept that the *feeling* of a "right" of ownership
    applies equally well to both parties in a variety of legal situations.
    These feelings are rarely resolved even by a court decision, so it is
    unreasonable to expect that they would be resolved here.  If it is
    necessary to resolve those feelings in order to have a productive
    debate, there can be no such debate.

13. Eventually, it all comes back to the definition.  I believe the
    current practice of the PTO is now consistent with respect to
    "software patents" and "hardware patents."  If "software patents"
    are seen as "bad," then there must be a proposal for change, and
    this must specify some *particular* change in the law.  Only then
    might one examine the ramifications of such a change.  But if the
    definition keeps wandering to cover various things previously
    uncovered, then the whole worth of the previous discussion is lost.
    Typically the definition will wander back again and then nothing has
    been accomplished at all.


In my case, long messages are the wrong format for debate:  Too many words
must be written (correctly!), and then read (correctly!) in too short a
time.  Issues keep slipping from one comment to another, and no arguments
are ever really joined (let alone resolved).

I believe it would be easier to resolve the issue in court, or even in
congress, than to resolve it here.  And I do not feel that there is much
desire to *resolve* the issue, but instead only to *win* a particular
point of view for which any alternative is unacceptable.

So, feel free to go on without me.

 ---
 Terry Ritter   cs.utexas.edu!cactus.org!ritter   (512) 892-0494