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From: mouse@thunder.mcrcim.mcgill.edu (der Mouse)
Newsgroups: sci.crypt,comp.compression,misc.legal
Subject: Re: Software Patents, Another Side
Keywords: software patents
Message-ID: <1991Jun30.224339.7572@thunder.mcrcim.mcgill.edu>
Date: 30 Jun 91 22:43:39 GMT
References: <7792@cactus.org>
Organization: McGill Research Centre for Intelligent Machines
Lines: 129

In article <7792@cactus.org>, ritter@cactus.org (Terry Ritter) writes:

> My point is that the current state of software distribution has a lot
> in common with the original purpose of a patent system.

Well, it has a lot in common with the things the patent system was
designed to correct.

> It seems passing strange that many programmers are willing to support
> trade-secret protection (which hides new ideas for as long as
> possible), and yet oppose patents (which are inherently public and
> have a limited term).

Patents don't really have a limited term in terms of software.  The
field is approximately 1.5 patent-lifetimes old: before about 1965,
there was really no software industry to speak of.

> In practice, trade-secrecy is little protection against big firms,
> who have the resources to disassemble a lot of code, but is fairly
> effective at hiding information from independent individual
> programmers.

Only when the individuals don't bother.  I think a larger factor is
that the large firms aren't scared of the potential consequences.  If I
write something and Microsoft uncompiles it, I have no effective
recourse (see my paragraph marked with [#] below).  If I uncompile
something of theirs, I will probably be bankrupt shortly after they
notice, from legal fees alone.  (Ditto if I don't but they think I did.)

> Many postings have used the fear-based arguments advanced by the
> so-called "League for Programming Freedom."  These include the fear
> that individual programmers will be unable to function in an
> environment of patented ideas.

(As a side note: the LPF is more than anti-software-patents.)

Which they will.  Since the patent office does not enforce the
statutory criterion of unobviousness in the case of software[%], it is
impossible to determine whether any given program infringes a patent
without a large number of (very expensive) patent searches, something
an individual or small organization simply does not have the resources
to do.

[%] Witness the XOR and backing-store patents, and probably others I'm
    not aware of.

> [Patents] almost never impact the use of programs which individuals
> write for themselves.

Well yes; if I write a program which uses a patented technique, and do
not distribute it, it will almost certainly never be noticed as a
violation of the patent.  The problem is the second clause of the
condition: "and do not distribute it".  It means that I must not[%]
distribute anything, even for free, without multiple patent searches,
under pain of being bankrupted by lawsuits from corporations like
Microsoft, Lotus, AT&T, etc....

[%] Well, if I were in the US.  Canada does not have software patents.

> So we are left with those programmers who wish to use patented
> inventions in their own work, and then publish that work, without
> arranging licensing agreements.

Even determining whether licensing is necessary is prohibitive.

> We are talking about distribution, not research, nor individual use,
> but rather sales (money), or impact upon sales (free distribution).
> Can book publishers pick up articles from writers and publish them or
> even give them away (free) without compensating the authors?

Invalid analogy; that's copyright, not patent, law.  Most of the people
squawking about software patents have no problem with software
copyright.

> Hardware companies have had to live with hardware patents for many
> years, but only rarely fail because of patent disputes.

Hardware patents (a) generally do conform to the unobviousness
criterion and (b) are generally more specific, more along the lines of
what I think the patent system was intended for.  Hardware patents tend
to be for a specifically-described device and anything "substantially
similar".  And that clause is being taken much more broadly in the case
of software.

> Would small software firms be better off without software patents?
> Competition against the giants is a far greater risk and expense, and
> a patent is exactly the sort of thing that could help restrain those
> giants.

[#]
In theory.  If I hold a patent on some technique which Lotus chooses to
use, again I would be bankrupted by legal fees before my case is even
fairly started, *even if I have a won case*.[%]  The legal system is
not a justice system; it hasn't been for quite some time.

[%] Again, in the USA.

> Is Software Different?

Yes, in many ways software is an essentially new world: a world of pure
pattern.  While other worlds of pattern existed before (mostly other
creative works where copyright applies), the significant differences
are that (a) patent law has never applied to those worlds and (b)
similarity between programs is measured at a much higher level of
abstraction than similarity between, say, books.

> Software can be open literature in the same sense as mathematical
> formulae; similarly, simply reading the schematics of a patented
> machine is not a patent violation.  But, clearly, the main purpose of
> software is to select hardware operations; that is, it is INTENDED to
> make actual physical changes which may be like those of a patented
> hardware system.  Because of this, it is difficult to argue that
> software does not intrude upon on the patent rights which we expect
> to apply to hardware.

Except that the patent rights which apply to hardware are interpreted
less broadly.  To pick an example, it is as if someone had managed to
patent any mechanism for toasting bread, instead of some particular
mechanism for toasting bread.  Or to bring the analogy closer, as if
someone had patented some particular toaster, and then argued that
anything that produced the same effect - ie, toasting bread - was
covered, all the way from a stick over a campfire to a high-power laser
at 30 paces.

					der Mouse

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