From: witr@rwwa.COM (Robert Withrow)
Subject: Patents:  What they are.  What they aren't.  Other factors.
Reply-To: witr@rwwa.com
Organization: R.W. Withrow Associates
Distribution: usa
Date: Sat, 26 Sep 1992 16:12:04 GMT

[I trimmed the newsgroups and changed the subject.  Feel free to
ammend the newsgroups.]

In article <1992Sep25.185314.8872@gvl.unisys.com>,
   dave@prc.unisys.com (David Lee Matuszek) writes:

| At one time "inventions" were physical objects embodying
| new ideas, and as such the patent office had to have a working model
| before it would grant a patent.

Inventions have never been restricted to be physical objects:  processes and
manufacturing methods can and have been patented.  What you are referring
to (I believe) is ``reduction to practice''.  An invention (from the point
of view of the patent system comprises two stages:  The ``conception'' and
the ``reduction to practice''.  The first is the cognitive or mental action,
the second is a physical act.  It has always been necessary to *prove*
reduction to practice, but it is not necessary to supply the patent office
with a working model (You might immagine sending a working oil refinery
to the patent office ;-) ).  What constitutes such proof varies.  For
some purposes the simple filing of the patent application serves as such
proof, and is known as ``constructive reduction to practice''.

| Sadly, the fact is that, when it comes to software, I am
| completely unable to distinguish inventions from ideas.

This seems to be difficult to apprehend.  It is for me.  And yet I
don't think this difficulty is specific to software.  Consider a process
patent:  One can point to the machinery implementing the process and say
``that is the invention'', but of course it isn't;  It is only the
``practice'' of the invention.  Nor is the ``idea'' (alone) the invention.
The invention comprises both.

In the case of a software (algorithm) patent one could point to the
computer running the software as the practice, and the software as
the idea, but it isn't quite so satisfying, is it?

| The question to be raised here is whether the Patent Office will
| ever be able to apply this [obviousness] rule competently. 

Software people seem to assume that this problem is unique to software,
but it isn't.  *Every* patent infringement suit involves a claim that
the invention was obvious.  Nor, in my opinion, is it necessarily
more difficult to prove in software cases than it is in---say---
electronics or chemistry.

| However, I think it is perfectly reasonable
| to ban baseball bats in basketball.

Presumably because, in basketball, baseball bats have *no* correct
application?

| Similary, I think it is perfectly reasonable to ban patents in
| programming.

Presumably because, in software, patents have *no* correct application?

This statement comes very close to the kernel of the argument, and I
wish (but have little hope) that it could be discussed precisely and
rationally.  

A patent can be granted to ``whoever invents or discovers any new and
usefull process, machine, manufacture, or composition of matter, or any
new and usefull improvement thereof''.  (which is quoted from the older
patent law, but is consistent, I believe, with the intent of the newer
law).  Later sections discuss what cannot be patented, and discuss the
obviousness issue along with other restrictions.

First, let me hypothesize that there are two anti-patent points of
view, namely:  1) Patents cannot apply to software, and 2) patents
should not apply to software.

It seems to me that to claim that patents *intrinsically* cannot, in
law, apply to software one must claim either:

  a) Software cannot be both of new, and usefull.
  b) All software is obvious.

It is difficult for be to swallow either of these claims.  Perhaps
you or someone has a convincing argument supporting them?

It seems to me that to claim that patents *should not* apply to software
involves some claim that software doesn't deserve protection as
intellectual property.  I, personnaly, dont' understand why software
should lack this protection.

| I think you are starting from
| the assumption that I have already identified something special about
| my program, and I want to determine if that particular aspect has been
| patented.

Yes.  An invention is ``something special''.  If there is nothing special
in your program then it would seem that it contains no inventions, right?

| Programming is a process of continuous invention, and I have in
| general very little idea what parts of my program might be patentable.

The same can be said about any other form of innovation.  Most people
assume that very little of their work is patentable.  This assumption
is frequently wrong.

| Unless someone sues me, I don't think I will ever know.

This is certainly one way to find out.  This disturbs people (I 
wonder why ;-) ).  But it is no different from a guy who invents a
(say) boat-cleaning widget.

| >The same can be said of *any* legal action brought against you, and
| >thus does not constitute a valid criticism of the patent system.
| 
| Yes, it can.  Why isn't it a valid criticism?  I personally think that,
| to the extent this statement is true, it is a valid criticism of the
| entire legal system.

That is exactly what I said.

| But as yet I have absolutely no reason to believe that patent laws will
| be properly applied to software.  Zero.  None.

I agree with you.  But the problem I have is that I believe in providing
protection for intellectual property.  My reasons for believing this are
the same as those stated in the Constitution.  If something like patents
are not available to software writers then the only avaliable protection
(unless you eliminate property rights en-toto) is secrecy.  Secrecy is
a BAD THING for the advancement of state of the art.  People seem to
forget that the protection provided by a patent is given in exchange
for the *disclosure* of the thing being patented.  After the *limited*
time this protection is granted, *anyone* can use the patented thing.
And during the period of the protection the public has access to the
information in the patent to extent the state of the art.

-- 
 Robert Withrow, Tel: +1 617 598 4480, Fax: +1 617 598 4430, Net: witr@rwwa.COM
 R.W. Withrow Associates, 21 Railroad Ave, Swampscott MA 01907-1821 USA
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi