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| Authored by: Tkilgore on Monday, September 03 2012 @ 06:09 PM EDT |
Your concerns about the commercialization of research in universities and the
threat which it poses to the role of universities as educational and public
service institutions seem to echo my own concerns. Clearly, I am not the only
person who is worried about the future. Interesting to see that.
Moving on to your main points:
> This goes beyond just the money invested, though. Instead, I was trying to
compare genetics and software as areas in which coming up with the right idea
(be it the association between genes and disease in genetics or the optimal
user
interface for a smartphone) is where the vast majority of the effort is spent
in
invention. Devising a medical test for this association or writing a computer
program that realizes the user interface seems (to me) in comparison a
relatively trivial task...e.g. Samsung even admitted that it took them only 3
months to modify touchwiz to more closely resemble the iPhone interface. In
contrast, with the light bulb or with drug research, the difficulty is in the
method development. Just because Pfizer has come up with [redacted] doesn't
mean
that Eli Lilly doesn't need to put in vast amounts of R&D to make Cialis.
Lilly couldn't just look at what Pfizer had done, make a couple minor
modifications and - voila - have a competitor ready for market.
I still do not see how the situation of genetic or pharmaceutical research are
parallel to the situation of software development, though. Let us remember that,
as far as the smart phone and pad computer market is concerned, Apple has
managed to get design patents (for the appearance) and to get functional patents
on such things as
-- a rectangular device which is thin and has round corners, with a rectangular
screen on the front. This covers everything, doesn't it?
-- putting an array of icons on the screen. This dates back an entire generation
in the computer industry, having been done for example in Windows 3.1. So, what
exactly is this? A patent upon doing it now *on a phone*? On a handheld small
computer with a rectangular screen??
-- causing "bounce-back" if someone wants to look at something which
goes over the edge of the display.
-- searching mechanism for text files, presumably a patent for doing this now on
a *small* device which is rectangular in shape, with rounded corners, and has an
array of icons on the front? Or what, exactly, have they succeeded in patenting?
Believe me, there is plenty of prior art for searching text files. Computers are
practically designed in the first place to be able to do things like that, and a
tablet or pad computer or a smart phone is, after all a computer.
And the list could go on. The arguments against being able even to imagine that
it should be possible to patent such things are legion. The first thing that is
pointed out is that many of the patents in question had to wait until hardware
development made it possible to do some of this stuff on a small computer, which
was already done on bigger systems such as desktops. That this was the real
progress (some of it done by Samsung and used by Apple, by the way), and to do
things with small computers and pads and phones which was already done on larger
systems was a natural and organic progression. The patent system simply ought
not to get involved in such things.
> My point (in a nutshell) is that there are varying amounts of inspiration
(ideas) and perspiration (method development) behind ANY invention or
innovation. I'm curious as to whether you agree with this concept and whether a
system that by definition only protects one aspect of the invention process
undervalues the other.
Well, to a certain extent we all have to agree that there is such a thing as
inspiration. For example, there is the old story about Christopher Columbus and
the egg. After he showed his would-be critics how to make an egg stand on end,
it was easy for them to do, too. So your arguments echo that old example.
The problem is, how far can one go in protecting that "inspiration"
without doing major damage to an entire society, an entire country, or an entire
segment of the economy?
Moreover, at least in the realm of software there is not as much of that kind of
thing as an outsider might think. It is quite clear, as I have said already,
that one miserable job has been done with trying to set up a system in which
supposed sparks of genius can be patented -- to the great surprise and
consternation of practically everyone connected with the software industry, and
without consulting the industry about whether it wanted that kind of
"protection" or not. Which it didn't. Many voices have been raised
against this, including, of all people, Bill Gates a few years ago.
Approximately back in 1992, he made the observation that if software and
operating systems had been subjected to the regime of patents from the
beginning, then the industry would not have been able even to get started. No
doubt, he was among other things bitter because Microsoft had just lost its
first major patent lawsuit, which had hit them literally without their having
seen it coming. Also, there is no doubt that his reaction to this realization
was to put it to very bad use. Namely, instead of fighting to overturn the
situation he decided that the right thing to do was to make every effort to use
the oncoming insanity about patents to the best advantage of his company, namely
that Microsoft should make a priority of playing the patent game better than
anybody.
I would ask you to think about the fact that if there had been such a repressive
use of "intellectual property" there would quite possibly never have
been a Mac GUI computer, nor a Windows operating system, and certainly there
never would have been the Xwindows system, which was developed in mainly at
universities, and there never would have been Linux. There never would have been
an SCO lawsuit in which Linux was accused of "ripping off" the
"look and feel" and the "riffs" and the command structure of
UNIX, because there would not have even been any Linux to be sued. Generations
of programmers would have been trained in school without looking at operating
system source code, and would have no more options on graduation than to work as
peons in large corporations, with no real ability to create anything and with no
rights to what they had created even if they had. There never would have been a
GPL license and there never would have been a Free Software Foundation, because
there never would have been the right to duplicate and or improve the
functioning of any existing piece of software, without first humbly begging for
permission from some large company and without forking over a prohibitive amount
of money for the right to produce another program which does the same thing as
some existing one -- and never mind having seen the source code for that
existing program, because that would all be kept in secret.
This is the effect down the road of tightening the screws of patents on software
and tightening the screws of copyright law so that it would apply to functional
code in exactly the same way that it applies to the plot of Harry Potter or Star
Wars. There are those who would love to do those things, because it would reduce
programmers to salaried employees, would reduce computers to consumer devices
similar to TV sets, and would reduce the internet to a "content delivery
system" for feeding pre-packaged "content" to the passive
masses.
Well, most people do not actually want the obvious consequences of the kind of
"intellectual property" regime that I have described above, but those
consequences really do appear inevitable to me. Moreover, there actually do
exist such people who are looking forward to those consequences, either because
they believe that they will get rich along the way or because they believe that
society will, somehow, be more orderly which will be good for everybody, and the
ordinary folk will have more respect for their betters.
The rest of us have to make a choice.
One of the choices is that we have a legal environment in which Samsung can copy
some of the stuff that Apple did and Samsung does nothing illegal. The obvious
rationale is that to take that right away from Samsung would take it away from
everybody else, too, potentially making slaves of the rest of us. In that case
do note that it is still obviously possible for Apple to make lots of money and
be famous as well, and Apple is free to accuse Samsung of being a
"copycat" in public if it wants to.
The other choice is to have a system in which Apple can somehow patent its
"creative genius" which is in fact built upon the work of many other
companies and many other individuals, and sell that "creative genius"
back to us whether we want it or not, and nobody has the right even to complain,
nor to build anything similar, not even to tinker at home in the basement
without violating some sacred "intellectual property" of Apple or
God-knows-who-else. Judging by the results of the court case, this is more or
less what we have right now.
Which of these two choices do you want for your future and for the future of
your children? And if you say that there ought to be some third choice which is
neither of the above then what is it? Where would you draw the lines?
The situation reminds one of a certain principle in criminal law. Namely, the
state, the accuser of someone who is on trial, simply cannot do certain kinds of
things which violate the rights of a person accused. It is considered better if
a few obviously guilty scoundrels and criminals escape because the government
has failed to observe proper procedure. That way, the rights of all the rest of
us are preserved. Here, Apple has accused Samsung of doing bad stuff, and it
does really seem that Samsung has not been totally nice. But the circumstances
are such that even if Samsung did bad stuff, the methods for catching Samsung
are dangerous to everyone else, too. If it is not possible to have a system
which allows Apple to catch Samsung and at the same time to feel assured that
justice is preserved for everybody else, then perhaps we would all be better off
not have a system which allows Apple to catch Samsung. [ Reply to This | Parent | # ]
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