1) implicitly, by saying that by diminishing protection, wealth will be created means that I don’t credit the threat of trade secret as destroying more value than the one created by loosening up current laws
2) explicity, when I made the point that making reverse engineering legal would alleviate any potential damaging impact trade secrets may have (that was illustrated with the value that could be created by letting anyone modify and extend Windows).

@”Dale B. Halling”’s post fails to express any statement that could be tested through fact-based analysis, and could then confirm or infirm his point of view. In this respect, it would seem like a logical thing to do to explain why open source do exist and not retort to a dooming prospect of comparing it to “socialism and communism” (even Mr Steve Balmer has stopped comparing open source to cancer). In fact, it is the point that Free Markets will benefit from Free IP Laws.

Okay…

Halling’s article begins by incorrectly identifying scarcity as the salient characteristic of intangibles (instead of non-excludability and non-rivalry) and uses it to construct and dismantle an elaborate straw man argument. Other fundamental and fatal errors, such as the classic post hoc concerning the association of historically strong legal protection with high rates of innovation, appear before the article concludes with an extraordinary, evidence defying assertion and an absurd prediction.

“I’m glad to see someone has connected with my key point”

Rational, empirically informed mainstream “dismal science” has connected with it too, Brian – as I’ve tried to point out.

BTW – I would highly recommend that the people commenting here take a look at Dale B. Halling’s blog – specifically the post on “Scarcity and Intellectual Property.” It’s very relevant to the discussion – particularly the comments from FredericBaud.

http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-of-adoptiondistribution-of-technology/

I would disagree that there have only been a handful of serious patents issues. If you glance through some of the uncontested patents you’ll find large numbers which have been granted on the assumption that a software implementation of a non-novel and total obvious solution is an innovation. Even in the infamous Bilski decision Justice Rader made exactly this point – that particular machine and transformation tests were unnecessary to deal with that case because it could have been simply thrown out on the basis that the Bilski’s claims were obvious.

And while you’re right that these can always be contested in court that’s exactly what we want to avoid. The cost of contesting an infringement action is so high it makes sense to settle. There is now a healthy trade in cross-licensing which, IMHO, is more a market in litigation avoidance than commercializing innovation.

This is not done with malicious intent by the USPTO. They are seriously underfunded. Examination times are paltry. Skill sets need to be updated to deal with this new technology domain (new by PTO standards that is). The system you are describing as “refined” is in fact unable to deal with the onslaught of patents – that’s why the USPTO is exploring new concepts like Peer-to-Patent. But nothing has been done to extend these concepts for sustained systemic change. Please take a look at my comments on this topic – http://blogs.gartner.com/brian_prentice/2009/04/09/patent-reform-ideas-rethinking-the-review-process/

Other than that issue, I think we’re largely on the same page.

>>> “All I’m saying is that there are serious shortcomings in the USPTO which results in too many patents being granted that shouldn’t be.”

I still disagree, many things are obvious in hindsight – not just patents. The system the USPTO has built over centuries is very refined, there are over 7million patents and perhaps a dozen that have caused uproar. Every system has its flaws, but changing an entire system over such a miniscule amount is not the way to go. Besides, even if a patent is awarded, it can still be taken down afterwards and/or defeated in court (such as in an infringement suit).
Any changes need to be weighed against the affect on what patents were created for: to reward innovation. There have been significant changes to the patent system the past ~3-5 years – all in favour of larger companies – the same larger companies that don’t have innovation as their main competitive advantage (they’ve got marketing $muscle, brandname, deployed customer base as more important advantages).

ahem – by “prize big companies will pay” – do you take into account the lost hours every week on bogus meetings, the zero loyalty to employees and layoffs at any chance, working on dead-end or unchallenging projects that make Dilbert a reality, etc…? I lived that “prize” and would rather work every night till 1am to avoid going back to that – at least I’ll see my layoff coming.

IP, WWW, and other related technology were not created in a vacuum – they had significant resources (read: $money and time) invested. Software patents provide small innovators a mechanism to protect their investments (time, money, lost business opportunities elsewhere (such as a regular salary working for a corporation)). Please don’t take away the only protection I have against the Google’s and Microsoft’s, otherwise I’ll need to go back to slaving away working in a Dilbert world – but at least I’ll get to leave at 5pm!