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From: karsh@trifolium.esd.sgi.com (Bruce Karsh)
Newsgroups: comp.arch
Subject: Re: Patents and Architecture
Message-ID: <63036@sgi.sgi.com>
Date: 28 Jun 90 10:23:58 GMT
References: <4742@sunquest.UUCP>
Sender: news@sgi.sgi.com
Reply-To: karsh@trifolium.sgi.com (Bruce Karsh)
Organization: Silicon Graphics, Inc., Mountain View, CA
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In article <4742@sunquest.UUCP> terry@sunquest.UUCP (Terry Friedrichsen) writes:

>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.

This is a real problem.  As the volume of software patents approaches the
volume of electrical and mechanical patents this will have to change.  But
it's no reason for concluding that software patents are a bad thing.

>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.

This just isn't true.  The patent examiners are not dummys.  The language
of a patent's claims are sometimes hard to read because they are more precise
than the writing we are normally used to.

>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.

You mean that they claim to have been using it years ago.  Were they keeping
it a secret?  Patents are supposed to discourage secrecy.  If its useful
and they didn't publish it and they didn't make a product out of it, then
how sympathetic should we be if someone gets a patent.

>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.

It's a young field and there will be some mistakes made.  Since software
patents were discouraged for a long time, there may also be some problems
with the patent office not being completely aware of what are really
inventions and what aren't.

But even so, usually I think I hear a lot of sour grapes.  After the patent
is issued and after somebody is successful with it, people think "I could
have done that".  Maybe so, but if so why didn't you.

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

I agree.  The computer software field is a giant opportunity for inventors.
The government will now help protect our software inventions.  With a good
patent you can attract investors so that you can bring your invention to
the world.

I suspect that there are readers right now on comp.arch who will create
software inventions, patent them and start companies to bring these inventions
to the world.  Some of these companies will set up R&D organization because
a) the founders will be software inventors who are sympathetic to software
R&D, and b) the patents will run out soon and they'll need to develop
improved products before then.  This is a great thing for the software
field.

Probably other readers of comp.arch wont want to do this.  They may have
created a software invention which they don't want to pursue.  They may now
be moved to publish a description of their invention to prevent someone
else from patenting it.  The publication of these inventions is also a
great thing for the software field.

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

As we get more precedent and experience with patents, the abuses will decrease.
Other fields of intellectual endeavor have had patents for a long time and
it has been good for them.  If lots of good patents are filed, the bad ones
will have a much harder time getting past the examiners.

			Bruce Karsh
			karsh@sgi.com