From: mcgregor@netcom.com (Scott Mcgregor)
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi,comp.unix.bsd
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Date: 9 Oct 92 01:08:00 GMT
Article-I.D.: netcom.1992Oct9.010800.18225
Distribution: usa
Organization: Netcom - Online Communication Services (408 241-9760 guest)

In article <id.8NWT.UN@ferranti.com> peter@ferranti.com (peter da silva) writes:

>> Not really, only every software distributor.
>
>I'm not sure there is a reasonable distinction.

It is very simple. Did you sell or give the software to someone else to use? 
Then you are a distributor.  If you don't you are just a manufacturer
(if you built it yourself) or a consumer (if you acquired it from
someone else). These are pretty easy to determine distinctions, well
known in the law. 

>> And in any cases less
>> onerous licensing mechanisms such as clearinghouses are possible.
>
>Unless you want to distribute source.

Even if you want to distribute source. Distributing source has nothing
to do with it.  If you distribute GNU source, the person who accepts
it from you is just as much bound by their license as you are.  It
isn't freed from restrictions because it passed through your hands.
If you want to distribute clearing house sources go ahead. As a
clearing house member you are entitled to do so. When you do so, you
merely put a license agreement on your sources that says basically the
following: "The attached sources may include materials governed by the
patent clearinghouse. Permission to use is granted to recipients of
this distribution from clearinghouse members. Redistribution rights is
granted to clearing house members subject to normal royalty rates in
effect for that member. Others who wish to redistribute may join the
clearinghouse to be protected from infringement suits by the clearing
house. Distribution by non-members shall only be subject to
infringement if the material contained herein includes patented
material. A complete list of patents held by the clearing house
membership is available by writing to the clearing house..."

The above restriction does encourage every redistributor along the
way to join the clearing house. Of course, for non-commercial
redistributors the membership fee may be zero, so there is benefit to
be had for little or no cost. Those who are commercially involved in
redistribution may be subject to larger royalties because they are
tied to revenues, but then they can also better afford them, and their
fees reward the original contributors.  People who want to opt out
still can, at no more risk than they would have faced if the clearing
house hadn't existed (since the recipient can't be sure that there
isn't copyrighted AT&T or GNU code that has been put in in an
undocumented manner.  

>> Also individual widgets, objects and the like.
>
>Yeh, but those (a) aren't algorithms, but implementations of algorithms, and
>(b) copyright works fine for them.

a) It is okay with me if you call them implementations of algorithms.
In my opinion that is all that can be patented anyway, not the
underlying algorithm. Presumably it is okay that these be patented
because they are implementations and not the algorightms themselves.
Right?

b)  copyright does not always work fine for them.  Copyright may be
intentionally and easily re-engineered around (except for artistic
aspects). Copyright also applies only to the representation, NOT to
underlying process or utility. Only utility patents and trade secrets
can address this.  But if part of the invention is in its public user
interface, trade secrets may be impossible to enforce.  Only a patent
would secure to the investors some reassurance that they would be able
to commercialize their invention before intentional copy artists came
after it.  Such assurance may be necessary to raise sufficient capital
to achieve widespread distribution and use, and ultimate benefit to
society.   (There's also the case of "Design" patents vs. copyrights
but I believe that's another issue).

>Because it's cheaper to do that than to (a) research canned applications,
>(b) contact the supplier, and (c) purchase them, for anything but substantial
>libraries and modules (Motif, for example, or operating systems).

Cheaper modes of distribution and licensing could address such things.

>You want to encourage their re-use, make it cheaper to use canned code instead
>of making it more expensive to grow your own.

Clearing houses and similar mechanisms could well be a means to do
that. They are fully compatable with anonymous FTP and source
distribution and the informal and commercial distribution mechanisms
we have today, and they may be both more efficient and able to carry
many more pre-tested re-usable components than the ad hoc systems we
see now.


-- 

Scott L. McGregor		mcgregor@netcom.com
President			tel: 408-985-1824
Prescient Software, Inc.	fax: 408-985-1936
3494 Yuba Avenue
San Jose, CA 95117-2967
Newsgroups: comp.org.eff.talk