Path: utzoo!attcan!uunet!lll-winken!lll-lcc!ames!mailrus!cornell!uw-beaver!fluke!kurt From: kurt@tc.fluke.COM (Kurt Guntheroth) Newsgroups: comp.misc Subject: Re: Back to Intellectual Property (was: Re: Free Free Flow) Message-ID: <4492@fluke.COM> Date: 19 Jul 88 16:00:54 GMT References: <9160@cisunx.UUCP> <1801@uhccux.UUCP> <807@netxcom.UUCP> <1804@looking.UUCP> <1812@looking.UUCP> <826@dlhpedg.co.uk> Sender: news@tc.fluke.COM Organization: John Fluke Mfg. Co., Inc., Everett, WA Lines: 81 WARNING! I AM NOT A LAWYER! USE THIS INFORMATION ONLY FOR DISCUSSION. YOUR MILEAGE MAY VARY. VOID WHERE PROHIBITED. USE UNDER ADULT SUPERVISION. > From: cl@datlog.co.uk (Charles Lambert) > Let me ask a naive question (not rhetorical, I don't know the answer): > how does the right of patent differ from the right of copyright? > It seems to me that patent is far more appropriate to software than is > copyright, because software is more machine than artistic conception. > Copyright seeks to protect the whole product, whereas patent seeks to > protect the original inventions within a product. Audi Motor Company Copyright seeks to protect intellectual property, mostly books, but also art work and music, from copying. Copyright protects your right to control distribution of a work you have expended substantial creative effort on, since often distribution is much simpler than creation. Copyright does not protect the idea itself. That is, if you write a cookbook, copyright does not protect you against somebody using your recipes to open a restaurant, even if it competes with a restaurant you own. Somebody cannot publish your cookbook, or take some of your recipes and put them in another cookbook, but the recipes themselves can be used. If maintained, copyrights extend for a very long time; something like 75 years. Patents protect "utilitarian objects", and processes. Patents were established to increase innovation, by offering a term of exclusive license for an invention in exchange for public disclosure of the invention. Since the invention is disclosed, anyone can examine its principles of operation and potentially improve upon them. Patents prevent any use of an invention without license from the inventor. The term of a patent is much shorter. It is something like 17 years, but I think there are circumstances in which it can be extended. Until recently, patent protection did not seem to apply to software. The patent law specifically prevents you from patenting a chemical formula or a law of nature and algorithms were viewed as laws of nature. However, it has become possible to patent the application of an algorithm to a specific domain. For instance, it is not possible to patent the bit shuffling done by the DES encryption algorithm, but it is possible to patent the application of that algorithm to encryption. When viewed in this way, tying an algorithm to an application, all but the most basic algorithms are probably patentable. For instance, the application of spreadsheet-like manipulations of data to building automated financial reports (sorry, too much prior art to patent this now.) The thing that makes patent protection so valuable is that the idea of your invention is protected. It is difficult for a competitor to modify your idea slightly and market it. So, it looks like patenting software is a great thing, right? Well, lets think about it. If your software is a "utilitarian object", certain evil things happen. For one thing, you are liable for its use. This includes warranties of fitness for use and merchantability. That means, if you sell, say, a spreadsheet, there is an implicit warranty that it will work properly. If a bug in the program causes a customer to lose a great deal of money, the author is potentially liable for that amount. There is of course an infinite amount of legal detail here concerning how liable the author would be and how careful the customer should have been, but the point is clear. If software is patentable, then it is a utilitarian object. If it is a utilitarian object, it is susceptible to laws concerning liability. On the other hand, if software is intellectual property, like a recipe or book, there is no implied warranty. If a recipe is not flavorful, it is not the problem of the author, except inasmuch as it diminishes the value of the book. The purchaser certainly has no recourse to get their money back. The term of copyright protection is much longer too. Another advantage of copyright over patent is that copyright is pretty easy to establish. You have to be the first one to publish a thing, which can be proven by sending it to the Copyright office. Determination of copying is (relatively) mechanical, involving comparison of the two texts or works of art by a court. Patents can sometimes be broken. If the patent claims are deemed to be too broad, a court can throw some claims out, and much of the protection evaporates. If someone can show "prior art", that they had invented the same thing, they can use the invention without license. If they can show that the invention was obvious "to a practicioner skilled in the art", the patent may be discarded, and again your protection vanishes. So patent protection is powerful, but dangerous. Now some questions for any legal beagles reading this: Can you control the treatment of your specific piece of software by anything you say on the package? Can you say "This is intellectual property" or "This is a utilitarian object"? Is it determined by whether you select patent or copyright protection? Can you have both protections simultaneously, or does one counteract the other?