Path: utzoo!utgpu!news-server.csri.toronto.edu!cs.utexas.edu!asuvax!noao!arizona!sunquest!terry
From: terry@sunquest.UUCP (Terry Friedrichsen)
Newsgroups: comp.arch
Subject: Re: Patents and Architecture
Summary: Patents   the good, the bad, and the ugly
Message-ID: <4742@sunquest.UUCP>
Date: 28 Jun 90 01:51:39 GMT
Organization: Sunquest Information Systems, Tucson
Lines: 94

karsh@trifolium.esd.sgi.com (Bruce Karsh) writes:

> [ ... ]
> If you invent something new, you have a right to do what you see fit
> with the invention and you have a right to ask others to pay to be
> allowed to copy it.  You even have a right to prevent other people from
> copying your invention.

I don't read any of the discussion here as objecting to this point.  The
problem is the folks that take advantage of the (comparative) ignorance
of the lawyers and patent examiners to patent things that everybody
already knows about.  Two points here:

1)  The several patent attorneys I have talked to all believe that an
electrical engineer is qualified to examine software patents.  I don't
doubt that some of them are, but to a lawyer, electrical engineer ==
computer expert == software wizard.

2)  You can patent almost anything, old or new.  Just try it; write up
a description of some clever piece of software which embodies a process
which is well-known to the industry.  Then give it to a patent lawyer to
cast into the appropriate "legal description".  After that, even YOU
won't recognize what in blazes is being described.  The patent examiner
doesn't have a chance.

> [ ... ] 
> Since patents require full disclosure of the invention, the invention
> becomes "obvious" after it has been disclosed.  That is one of the
> primary purposes of a patent.  So it doesn't do much good to argue that
> a patented invention is obvious.  If you want to invalidate a patent,
> you have to find prior art.

Picking a nit here:  you do not "have" to find prior art.  You cannot
patent things that are "obvious to an ordinary practitioner of the art".
But if you think that is a phrase DESIGNED to start arguments, you're
right.  Who's ordinary, and what's obvious?

> [ ... ]
> Could we please "put up or shut up" about their obviousness?

If several other folks were using the techniques YEARS ago, it sounds
like it was probably an obvious idea.  That, unfortunately, is up to
(expensive) litigation to decide.

> [ ... ]
> Therefore, instead of complaining about patents, I'd encourage software
> engineers to go out and invent new things and patent them.  It'll be
> good for you (or your company), and it'll be good for the field.

Inventing new things and patenting them is great, as long as the patent
embodies the legal qualities of novelty, utility, and unobviousness.
The problem is that there are a lot of "bad apple" patents out there,
especially in the software field.

> Have people noticed that certain new window systems look almost exactly
> like the Macintosh?  They don't look that much like NeWS or like UWM.
> They look like the Macintosh.  If I were one of the designer's of the
> Macintosh UI, I'd be upset about having my design stolen.  Why didn't
> software designers create a new look instead of rote-copying someone
> else's?

(It sounds like the folks who wrote NeWS and UWM did just that, by your
own admission).

Not such a good example.  The Mac folks stole the ideas from Xerox PARC.
What's worse, an old Byte Magazine article quotes some Apple folks as
admitting they got lots of ideas from PARC.  That's why Xerox is suing
Apple these days.

Additionally, after much tromping in and out of court, Apple's original
176 points of similarity between the Apple UI and the Microsoft Windows
UI were reduced to just two:  moveable icons and overlapping (vs. tiled)
windows.  Anybody wanna argue that these two things are so unobvious as
to be patentable?  (I'm not contending here that patents were or were
not infringed; in fact, the suit was not even about patent infringement.
I'm just pointing out that the Mac UI is probably not a good example of
nifty keen-dog inventive patentable super-good-stuff software.)

> We need new inventions in software architecture.  Let's stop copying the
> old inventions and start creating new ones.
> 
> 			Bruce Karsh
> 			karsh@sgi.com

I might add "let's stop patenting old inventions and start creating new
ones", too.

Bruce is right on about the spirit and intent of patent law.  It's just
that the abuses really get my goat.

Terry R. Friedrichsen
TERRY@SUNQUEST.COM
uunet!sunquest!terry
TERRY@SDSC.EDU  (alternate address; I live and work in Tucson)