From: Zhahai.Stewart@f93.n104.z1.fidonet.org (Zhahai Stewart)
Newsgroups: comp.org.eff.talk
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Date: 10 Nov 92 01:49:06 GMT
Article-I.D.: puddle.18090.2B009BF8
Organization: FidoNet node 1:104/93 - Adelante, Boulder CO


 >I think handing out monopolies on the basis of "we don't know that
 >they hurt" is very bad public policy.

 AWoEC> I would agree here *if* the monopolies were non-
 AWoEC> revokable.  They aren't.  If
 AWoEC> a court finds the patent should not be upheld, it can get rid of it.

 IE: turn it over to the lawyers

 >What I mean when I say that RSA has patented the concept of public key
 >cryptology is that if anyone implements a pkc system REGARDLESS OF
 >WHICH ALGORITHMS THEY USE (Such as TRW did), then RSA would claim
 >infringement. 

 AWoEC> I could personally sue you for painting your head 
 AWoEC> blue (even if you have
 AWoEC> never done so) because it restricts my religious 
 AWoEC> freedom.  I would probably have equal cause-of-action.  We are 
 AWoEC> devolving into the concept of risk rather than the legal issues.  
 AWoEC> This is fine, as long as we recognize that
 AWoEC> this is what is going on.  I think, however, this 
 AWoEC> speaks more to the issue of legal system reform, not patent reform.

 OK, so the legal system under which software patents is in tremendous need
 for reform.  I doubt that any of us expect that reform in our lifetimes.
 But since this particular problem is with the system under which software 
 patents would operate, rather then the ideals behind software patents per
 se, we shouldn't worry about it?  Somehow I don't get a warm fuzzy feeling 
 about the situation.

 >RSA (in my mind) built a new stove, then claimed a patent on cooking.
 >Even if I invent a totally new stove, I can't cook with it.
 >Thus, "cooking" is patented, as I use the terms.

 AWoEC> RSA built a new stove, patented a new stove, and 
 AWoEC> will sue you for building
 AWoEC> a stove like theirs *or* for cooking, the first 
 AWoEC> being legally defensible, if
 AWoEC> RSA truly has the views and motivations you say 
 AWoEC> they do, and they act in a
 AWoEC> fashion consistant with those views and 
 AWoEC> motivations.  

 So maybe "cooking" isn't patented, it's just claimed to be patented, and
 with enough legal work we could prove it wasn't?

 AWoEC> The point is that probability of litigation taking 
 AWoEC> place, and probability
 AWoEC> of litigation terminating in a judgement are two 
 AWoEC> very different things.

 Less so to people without large legal budgets.

 AWoEC> Thus RSA has *not* patented public key 
 AWoEC> cryptography.  If you choose to grant
 AWoEC> the them the ability to act as if they had by not following through on
 AWoEC> litigation, that's your choice.  If you can't 
 AWoEC> afford to fight a "truly just
 AWoEC> cause" withing the framework of the legal system, 
 AWoEC> the fault is with the
 AWoEC> legal system.  The patent system has *not* granted 
 AWoEC> RSA the liberties you say they are taking.

 I believe that there is a fine but meaningful point of legal philosophy 
 behind your contention.

 But I think that in the real world, the effect of legal intimidation is
 much more of a real factor than your "pure philosophy" approach suggests.

 One of the most convincing arguments, to my mind, regarding the negative
 effects of software patents is that it would move a large portion of the
 human efforts, fiscal rewards, and practical control of a vital and
 healthy industry away from the developers and innovators, in into the 
 hands and pockets of the legal profession.  For every N hours of real
 programming or design work, there would be M hours of legal work, and
 then K hours of wrangling, etc.

 "Thanks for meeting with me about whether function BT_revise_notes() does
 or does not use techniques which might infringe on patents 5,675,435 or
 maybe 5,712,546 or even 5,654,290!  Or at least be close enough that
 the legal battle would cost more than finding a different technique.
 Of course, patent 5,712,546 is licenceable for $7.50 per user, as
 defined by a 7 page document drawn up by their lawyers; that doesn't
 fit well with our intended model of licencing per site, but maybe with
 a few days work our lawyers can work something out with their lawyers.
 And I think that our legal department, with proper resources, could
 overturn 5,675,435 if function BT_revise_notes() was eventually held
 by the courts to be too close to using the claimed techniques.  Let's
 hope the code reviewers don't think it's anywhere near 5,712,546 - 
 those folks have one hot legal staff, and we don't want to take them
 on until the new legal dept budget comes in next quarter, if ever!  
 Tell you what, I'll get back to you with a legal research budget proposal
 by the 15th; you draw up a proposal for researching and rewriting
 the function to use some other technique, and we'll see which approach
 appeals more to upper management.  Hey, if you come up with a new
 technique, you should free up some of your time to spend with our own
 legal department to try to come up with an airtight patent claim, and
 then our legal eagles can go after some of the other guy's cash!  Oh,
 while I've got you here, are you ready for depositions on the Ashers
 case? - we may need you in court for a while at the end of the month.
 What?  Yeah I know you've been planning to get to the NewComm project,
 but that will have to wait anyway; all our legal code reviewers are
 loaded down now, and the new hires won't come online for another month.
 You should have plenty of time to help with the legal stuff this month."

 Um, I don't see that as enhancing software productivity.  I do see it
 providing a lot of work for very highly paid lawyers, with every dollar
 being taken away from software development (marketing, whatever).  And
 I see it making worse use of the remaining fraction of the pie, wasting
 the time of the innovators and developers with legal hassling that is
 parasitic to the innovation process (ie: it does not create anything, 
 it just encrusts it with legal Rococco!)

 Unfortunately, your every response to the problems pointed out with 
 software patents (in the message I quote anyway), seems to devolve down
 to "we can turn that over to the lawyers to fight that out; if the result 
 is nevertheless bad, it's only because the legal system is bad, not 
 because the software patent idea is bad.".  That is, your "solution" to 
 software patent flaws seems to be a major jobs program for lawyers.  Your 
 "solution" is in my consideration actually one of the primary problems 
 itself.

 If I had any doubts about the advisability of software patents, you would
 be helping me decide against them!  <grin>
    ~z~


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