From: peter@ferranti.com (peter da silva)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Organization: Xenix Support, FICC
Distribution: usa
Date: Wed, 7 Oct 1992 14:40:17 GMT

In article <1992Oct6.071314.16966@netcom.com> mcgregor@netcom.com (Scott Mcgregor) writes:
> >> >Can you come up with a single example of how a software patent has had
> >> >any positive effect? 

> >Yes. And, by the way, it has to be due to a patent, not a copyright. And
> >it has to be demonstrably due to the fact that the software was
> >patented.

> To whose satisfaction?

For me, mine. For other people, theirs. Who else could possibly be relevant at
this stage?

> Since all works of software are also inherently
> copyrighted, will you automatically deny ANY offering because they
> have both protections?

That's a problem. You've got to come up with a case where copyright law
was not invoked or was invoked and found wanting. And it's got to be one
of these "patent on the software" type situations, not something like the
Hayes modem patent where it's tha application that's covered.

> What kind of causal chain would you consider
> demonstrably would show this?

Show me and I'll see.

> Perhaps if I knew I could suggest a
> case with that kind of proof.  But if there is no causal chain that
> you would accept then I suggest you are not really being open minded
> to this, and there is no point trying to pursue this line.  

You know that's a bit of an ad-hominem attack, don't you. I'm quite willing
to accept the vailidity of patents I don't like.

> In any case, I am not trying to PROVE software patents are good. That would
> be to take a software patent advocate position, and I don't hold that.

Then why are you discussing this?

> What I am saying is that  software patent advocates have not PROVEN
> they are bad.

You mean anti-software-patent advocates? We're the ones arguing that the
status quo worked. The patent office only recently changed the status quo,
without any review process, and based on a situation that was much narrower
than the current interpretation holds.

> >Yes, but how many software patents have been granted? When did they
> >really start showing up? How many are out there?

> The answer very much depends on what you call a "software" patent.  Is
> the Diamond vs. Diehr patent a software patent?

No.

> Are the XOR and backing store patents software patents?

Maybe. The XOR patent fails other tests.

> You may hold that disaster is a little farther off.

I do hold that position. So far only the LZW patent and the RSA patent are
known problems, because they're clearly patents on an algorithm regardless
of application.

> Legislators may
> react by wishing to wait until there is more clear evidence that the
> industry is dangerously hurt, and not just theoretically could become
> so.  Laws are generally made around very practical requirements with
> costs and benefits clearly in evidence, and not so speculattive.

But the change in patent law as a result of DvD was not made on any such
grounds. It's never been subject to legislative or any other review.

> This is merely to the alleged cause, the alleged affect is that the
> software industry will wither and die.

No, the alleged effect will be that inferior techniques will be used
because they're good enough, and that people will be less willing to
disclose code because they're afraid of getting caught using some patent
they never heard of. And this is happening. No popular window system
apart from Intuition on the Amiga uses guaranteed backing store, and as
a result personal computer performance has taken a nosedive, because the
alternative algorithm involves forcing real-time performance from ALL
applications, or simply increasing processor power 10 or more times so
the problem can be hidden.

> You can only predict that it WILL come, not that it HAS seriously
> undermined the commercial viability of the industry.

Not the commercial viability, not yet, but promoting *commerce* isn't
what the constitution talks about.

> If you distribute source, the source would be subject to the licensing
> conditions of the clearinghouse--namely that if someone else uses it
> and collects revenues a portion is payable to the clearing house.  I
> would point out that this is no different from distribution of source
> for copyright protected programs.

Except I can distribute source to *my* code, and binaries for the libraries.
Many copyrighted libraries come with runtime versions that explicitly allow
this. When you can't tell what's OK to distribute or not you kill source
distribution dead.

> If I distribute GNU sources, the
> recipients are bound by its license agreement if they use it too. I
> see no difference whatsoever from a licensing standpoint. (Or are you
> claiming that GNU licensing is a mess too?

Yes, GNU licensing when applied to anything but complete programs is a mess.
Which is why they have created a new version of the GNU licence for libraries.

> >Well, you can try not *creating* problems in the first place. I'm
> >still waiting for proof that any software patent anywhere has had a positive
> >effect for society as a whole.

> Well, then you start from a biased position.

Not at all. I'm starting from a position that the system was working, and see
no reason to change it, either in favor of stricter restrictions (patent law)
or supposedly looser ones (the GNU ideal).

I am NOT taking an anti-patent position, by the way. Please don't characterise
me that way. I'm taking a position in opposition to a recent unreviewed change
in patent law that radically changes what patents can cover.

> I was born into a world that had them. I
> was born into a world that didn't used to make a distinction between
> a step by step physical process recorded on a clipboard, and one
> recorded in bits in a general purpose digital computer.

How about one recorded in a mathematics textbook? How is LZW any more a
physical process than Euler's method? I was born in a world where neither
of these were patentable. Now one of them is.
-- 
Peter da Silva                                         `-_-'
Ferranti Intl. Ctls. Corp.                              'U` 
Sugar Land, TX  77487-5012           "Heeft u vandaag al uw wolf geknuffeld?"
+1 713 274 5180                       "Tjener, denne ret er stadig levende."
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi,comp.unix.bsd