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: Sat, 3 Oct 1992 20:26:48 GMT

In article <1992Oct3.105257.5327@netcom.com> mcgregor@netcom.com (Scott Mcgregor) writes:
> Fees are associated with the listening audience in the radio case. If
> I play a song in my own home and don't have an audience I'm not going
> to get hit up for infringement. There is no reason why a software
> patent clearinghouse couldn't charge based on your revenue. If you
> don't sell much it wouldn't be hundreds of dollars a month it would be
> dollars, or maybe cents. Or even free.  Such small use cases probably
> aren't work administering, so let them be free. On the other hand if
> you are a one man company selling $100,000,000/year via mail order,
> maybe you should pay a bit more.

OK, so what if I'm writing software and distributing it on a non-cash
basis (public domain, shareware, freeware, GNUware, ...)?

> >More successful, unless you're thinking of something like an Escort or
> >a Volkswagen. A good program can easily sell a million copies. 

> Programs that *SELL* a million copies typically aren't one man gratis
> operations.

No, but they may have started that way. And by the time the money
is coming in it's too late. The software's already out there.

> And ironically $100+ programs like Lotus 1-2-3, and
> MS-Word are more widely used than "freeware" like GNU Emacs. This is
> because to the general public promotions and distribution channels are
> very important to acceptance.  Getting that kind of widespread use
> (via commercialization) may be a societal benefit.

But software patents don't contribute to that use. That's based on
copyrights, licenses, and contracts.

> >Can you come up with a single example of how a software patent has had
> >any positive effect? 

> Perhaps, what would you  accept as a positive effect?  Would you
> accept as a positive effect that a small software house was able to
> secure money for distribution of its product because of a patent?
> And that because of that you can easily buy such a product today?

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.

> What about a single example of how absence of a software patent had a
> negative effect?  How about a case where because company couldn't show
> adequate intellectual property protection to investors and so it took
> them 15 years to get funding, 10 years of which there was no
> alternative, even though they were regarded as "pioneers" in their
> area?

Demonstrate that that's all that stood in their way.

> > Software patents are a change in the status quo. 
> I don't agree.  I think that awareness of the ability to patent
> software by treating it as a process is the change.  Moreover this
> change occured ten years ago. The software industry has grown more in
> that last ten years than in the rest of its history combined.

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

> You
> posit an effect that so far is taking over ten years coming,

It's already started. Look at the XOR patent, and the Pike patent.

> >Read the Mythical Man Month. There are reasons large projects and team
> >projects have serious problems.

> Read it years ago. Good book. But it still suggests that millions of
> lines of code won't be written by a hobbyist in a year.  So claiming
> that millions of patents will be in the code is fallacious. 

Thousands would still be too many for a hobbyist.

> >Well, I've certainly beaten 10 seconds per line of good code in the past.
> >Not long term. But even if I'm off by a factor of 100 it's still a much
> >bigger problem.

> Not so big. Now you are talking 10,000 lines (still 1 line every 20 minutes
> no sleep or weekends!).

> Say 10-100 lines to every subroutine (or other
> useful measure of patentable algorithms).

My subroutines run 4-40 lines, typical. 100 lines is way too big except
for things like interpreter loops. And the longer subroutines almost certainly
involve several hits.

> Now you are talking 100-1000 potential hits tops.

I'll buy 2-4000.

> Most of your code is probably in a few special areas, so
> a one key word search might cover 10 algorithms in one search.

Based on the patents I've seen so far, keyword searches would be pretty
unlikely to come up with anything but false positives. I don't think the
Pike patent uses the term "window" anywhere, for example. You gotta widen
the searches, and read the patents to see if they might apply. Right now,
there aren't that many. It's probably doable, if time consuming.

> >> Not at all, but I would like to suggest that if it is slowing us, it may
> >> be because so many are focussed on brute force solutions,

> >Now that's a complete non-sequiter, and a straw man. I'm not talking about
> >brute force solutions, 

> Not a non-sequiter. It is a "brute force" solution to treat the
> licensing problem as a large number N independent and length licensing
> negotiations. But it is not the only way. A clearinghouse solution 
> replaces N independent licenses negotiations with one simple license and no
> negotiation necessary.

What is it you're licensing? pixel = pixel XOR mask?

And what happens when you distribute the source? You potentially
contaminate people using a different clearinghouse?

The whole thing is a mess.

> If  Peter wants to focus only on technical problems, to glorify
> them and disparage all other problem solving endeavours, thats fine.

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.

And I'm not saying the legal system is unimportant. I strongly support
software copyrights, and have had heated discussions with many of the
people opposed to patents on this topic. I'm simply saying that software
patents (patents on algorithms per se, as opposed to patents on applications
of an algorithm to a problem) are solving a non-problem.

Also, this distinction between object and application exists elsewhere in the
patent system (reference my previous message about Watt and the treadle:I can't patent the crank in general, but I can patent the application of the crank
to steam engines).  Why not here?
-- 
Peter da Silva                                          `-_-'
Ferranti Intl. Ctls. Corp.                               'U` 
Sugar Land, TX  77487-5012           "Heeft u vandaag al uw wolf geknuffeld?"
+1 713 274 5180      "If you want PL/I, you know where to find it." -- Dennis
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