From: mcgregor@netcom.com (Scott Mcgregor)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Distribution: usa
Date: Tue, 6 Oct 1992 18:00:47 GMT

In article <1arkvkINNqk1@early-bird.think.com> barmar@think.com (Barry Margolin) writes:

>And in many cases (e.g. free network distribution), the software developer
>is the distributor.

In such cases I think that the individual is at greater risk,
precisely because they are mode acting as a distributor at that point,
and not as an individual developer. I am not aware of any case where
an individual acting as an inventor was sued for unintentionally
"making" a patented invention which they did not distribute to others.
While such a suit is possible within the law, the fact that it hasn't
occurred in one hundred years or 4,000,000 patents suggests it isn't a
very large risk.

>I'm aware of the issues of software reuse, software ICs, etc.  This is why
>I made the distinction in my post between simple "nuts and bolts" level
>devices and larger components such as specialized libraries, fancy widget
>sets, etc.  I'm not sure precisely where the line should be drawn, but I
>think that it should be high enough that copyright and trade secret
>protection would be adequate.

>>Not just this but to encourage their commericalization. An award for
>>published inventions might be sufficient to encourage their
>>publication without commercialization, but the value of a limited
>>monopoly can only be reaped by commericalizing.
>
>Commercialization isn't the purpose, it's the mechanism.  The purpose of
>patents in the US (as stated in the Constitution) is to encourage invention
>(by which they meant the publication of inventions as well), and the means
>is to make it easier for inventors to commercialize what they publish.

The purpose stated in the Constitution is "to promote the PROGRESS of
science and useful arts" (emphasis mine).  I believe that it is quite
compatable to interpret PROGRESS to mean not merely publication, but
widespread adoptions, or commercialization.  Further, given the means
specified ("exclusive right to their respective writings and
discoveries") this is more in keeping with the interpretation of
PROGRESS that I have given than mere publication alone. But, I will
agree that this is subject to different readings and interpretations
between us on which no facts are likely to decide the matter in one
way or another.

>In another post you brought up the fact that some investors wouldn't put
>money into hypertext because Ted Nelson's publication made it impossible to
>patent the technology.  Ted Nelson wasn't interested in patenting
>hypertext, yet he invented it and published it anyway.  Seems to me that
>the goal was reached without using the mechanism.  

Which goal? The goal of the idea being published? Yes. The goal of
being commercialized to the point where the large mass of society
could use it? Not for ten years.  This is exactly my point. Progress
(for society at large) does not come from invention alone, but from
invention plus commercialization. A great idea that you can't buy or
apply benefits you naught. 

>In fact, had Nelson patented it, you might not have been able to
>commercialize it, either (it depends on whether you could afford his
>license fees). 

Perhaps I could not. But Nelson would have had an easier time raising
money (since this was the major objection that investors gave me).
Nelson might have been able to commercialize the invention himself ten years
earlier, or someone else willing to pay his royalty fees might have
been able to do so. In which case we might have had a commercial
hypermedia system ten years earlier, at untold benefit to  the mass of
computer users who couldn't or wouldn't program the system in Literary
Machines for themselves, but who eagerly adopted hypercard when it was
commercialized. 

-- 

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


Xref: sparky comp.org.eff.talk:6168 misc.int-property:1108 alt.suit.att-bsdi:426