From: brnstnd@nyu.edu (D. J. Bernstein)
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: 30 Sep 92 09:20:48 GMT
Organization: IR

In article <1992Sep30.035812.124@netcom.com> mcgregor@netcom.com (Scott Mcgregor) writes:
> And so while a
> ban against pure mental patents would not have any effect on physical
> process patents, a ban that extended to this mixed arena could indeed
> undermine a large amount of physical process patents.

This is sheer fantasy. I oppose mental process patents. Last time in
comp.patents you claimed that, under my position, the rubber-curing
patent would be invalidated. In general you seem to claim that my
position would invalidate all process patents. When pressed to defend
your claim, you came up with the following example:

] You can perform the rubber curing process in your mind, imagining  
] suitable vats, valves, connected in appropriate ways, operated for
] appropriate times under appropriate temperatures, and yielding mental
] rubber.

As I said then: ``Indeed. I will fight to the death to ensure that the
process of curing mental rubber is not patentable. If you have any
rubber in your head please feel free to cure it... None of this has
anything to do with Diamond v. Diehr, which dealt with curing *real*
rubber. That's a *physical* process.''

You claim now that you ``said nothing of the kind.'' Sorry, bud:

] Again, the rule would undermine all processes patent,

As I said then: ``No, it wouldn't. I am rapidly tiring of this argument.
You cannot, no matter how hard you try, cure real rubber in your head.
(If you can I'm sure the National Enquirer will run an article on it.)
Curing rubber is therefore not a mental process. Why do you persist in
saying that it is?''

> For Mr. Bernstein, this seems to not be a concern.  He feels that he
> can describe some applications as "inessential" and others as
> "essential". But I don't think that this can be codified, and indeed,
> I think that decisions such as Diamond vs. Diehr (where apparently
> Bernstein would say the physical world changes are essential)

Where, since you obviously haven't been paying attention, the _court_
said that. I'm not the person who invented the phrase ``insignificant
post-solution activity.'' That's a legal term now. The fact that nobody
can codify the meaning of ``insignificant'' doesn't stop normal people
from agreeing on what it means in most cases. That's how law works.

> Similarly, the changing of polarities on a cassette tape or video tape
> would seem to be essential, but not on a disk drive using a
> compression chip.

I find it amazing that you use the word ``essential'' without saying
_what_ the process is ``essential'' for.

When you invent a new kind of tape, how you use the magnets is
essential, because that's the invention. Using the magnets is essential
for the use of this tape. If you didn't have the magnets your tape
wouldn't work.

When you invent a data compression algorithm, how you use tape magnets
is irrelevant. The question of whether you use tape, or disk, or your
head, is irrelevant. The invention has nothing to do with the magnets in
this case. Using the magnets is inessential for the use of this
algorithm.

Is there anyone, anyone at all other than Scott, who refuses to
understand this blazingly clear distinction?

> But if the patent claims instead a method for increasing the
> practical storage limits for a fixed area of magnetic media

Ridiculous. That's not the invention in LZW. That's far, far broader
than what Welch (and Miller/Wegman) invented. The scope of a patent is
determined by the actual invention.

> >> Now real physical effects are happening: digital signals on a control
> >> line in a modem are changing, magnetic polarities in disks are
> >> changing, phosphorescent displays are changing all according to
> >> certain processes.
> >The United States Supreme Court calls such effects ``insignificant''
> >and, rightly, ignores them in determining whether a process is
> >patentable.
> I believe that Mr. Bernstein is merely opining on whether the court
> considers these "insignificant".

I am not. I will give you exactly one reference: the USPTO article in
the Official Gazette of 5 September 1989. Go look it up. Your ``belief''
is garbage.

> >Put differently: If you could make a mathematical algorithm patentable
> >simply by adding ``and then we write the result to a storage device'' to
> >it, then any novice patent lawyer could turn any mathematical algorithm
> >into something patentable. This would defeat the entire purpose of
> >prohibiting such patents.
> Indeed, this is the Diamond vs. Diehr reasoning in reverse.

My comments, above, are a direct paraphrase of Supreme Court statements.
They are not the ``reverse'' of anything. Please learn something about
the law, Scott.

---Dan