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, 10 Nov 1992 23:19:30 GMT

In article <1992Nov5.160500.18105@murdoch.acc.Virginia.EDU> gsh7w@fermi.clas.Virginia.EDU (Greg Hennessy) writes:
>Unless the usefulness of the monopoly is clear, it should not be
>granted.

If patents involving software hadn't been granted yet, and we were
debating whether we should start, then I think that there would be
more of a burden on those who support them to prove their usefulness
than for opponents to prove the lack of usefulness. But as Bernstein
has pointed out, patents involving software go back to the early 70s
and late 60s, over 10 years before Diamond Vs. Diehr and 20 years
before today. Now from an academic perspective I don't have a problem
with people debating from level ground.  But what I have been
understanding is that anti-patent advocates posting here are
interested in more than an academic debate--they are interested in
changing public policy.  In such case, the status quo, even if
misguided has to be the starting point, because it is the one that
Congress and the courts will start with. 

>#But there is a great deal of difference as has been discussed here.
>#Thinking about something, talking about it, improving it, mental
>#performance of it would be prohibited by a patent on the "concept".

>I find this to be a strawman arguement. I have *NEVER* heard anyone
>claim that patends cover what you can think about.

It has been my interpretation that the "mental process" test is
PRECISELY concerned with what you can think about, and not what you
DO.


 If this, what I
>consider a strawman arguement, is what you consider the difference
>between patenting a concept and patenting the use of a concept, I'll
>continue to use the simpler phrase, and you can do the translation
>yourself. 

I don't follow how it clarifies things to say a "concept" is patented,
rather than the use, especially if you only then only mean the uses.
Of course, posters can use language any way they want. And we are free
to disagree.  But I don't see how this use gets us closer to something
that a policy maker in congress needs to consume to make an educated decision.

>Since the patent is the only thing that is keeping it unimplemented,
>perhaps we should get rid of the patent, nes pas?

First of all it isn't unimplemented. You can buy implementations from
RSA Data Security.  Soon they will be bundled with Macs and Microsoft
product and you won't have to buy them. Second of all, it isn't clear
th what is keeping them from being widespread is patents. Patent Free
Alternatives (especially private key solutions) exist and are widely
available domestically (but not for export).  Some of these are posted
to the net or built into free software like elm.  If the need for
encryption were so great (even for something that would keep only
noncrypto professiohnals out) and patents were the only thing keeping
them from being used we ought to expect far more widespread usage of
these alternatives than we do. But we don't and presumably something
other than patents is causing that (I suggest ITAR, NIST, performance
concerns and lack of a critical mass of suitable recipients, but
decide for yourself). Might these same limitations limit sales of PKE
software too? 

>the purpose of patents is to give incentive for publishing ideas (rather
>than keeping them secret) and much of the research in software is done
>by universities, and people at universities already publish. (Helps
>with little things like tenure.)

We disagree. The constitution doesn't say that the purpose has
anything to do with publication. Universities are not mentioned
in this context in the constitution nor in the relevant patent
statutes.  The purpose given is the advancement of "progress". An
interpretation of the word progress as it appears to have been used at
that time is consistant with not just publication, but
commercialization of new inventions. This interpretation is also
consistant with the statutes that congress did establish.  Congress
has also found ways to encourage publication--through federal grants
to universities with publication requirements, and through awards. If
this was the only goal, patents would hardly be necessary.  But such
awards and grants do not give additional incentive to speedy
commercialization as patents can sometimes do, and it may be for this
reason that congress felt is useful to augment awards and grants with
a patent system.  

This interpretation is further strengthened by the
constitutional phrasing "the useful arts".  Why "useful" arts? Why not
arts in general? A thing is not made useful by knowing it alone (all
that publication provides). It becomes useful by being made, applied
and used. Patents encourage inventors to go beyond mere invention and
publication to these steps as well. Other methods do not. 

If I agreed that the purpose of patents was mere publication or
invention,  I would think that balance would weigh much more against
them. But I do not think that is a proper interpretation of their purpose.

>I don't agree with any of these statements, which simply proves we use
>the same words to mean different things.

Yes, I am in disagreement with the description of a patent as
something that applies to a concept, as opposed to the the
manufacture, sale and use of some device or process. I think that
patent law and court interpretations support this exclusion of patents
applying to concepts. 

>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. 

Go back in time. Before RSA, ALL encryption was based upon
PRIVATE keys.  The literature taught that it had to be that way and
that key protection was very important. RSA was the first PUBLIC Key
system. It broke the mold. It showed that regardless of whether the
underlying algorithm was based upon multiplication of large primes, or
ANY OTHER "one way trap door" function that PUBLIC key systems could
be built and be made arbitrarily secure.  The innovation wasn't so
much the use of multiplication of large primes, but of using PUBLIC
keys.

In a sense it is true that anyone who implements a PUBLIC key
cryptosystem WITH ANY ALGORITHM violates the patent.  But that is
precisely because what is being claimed is the PUBLIC key.  No PRIVATE
key cryptosystem violates the RSA patent even if it uses
multiplication of large primes.  

>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.

If I were to use the analogy, I would put it this way:  "For
countless centuries, man has used flame to cook food: wood, gas, coals
have all been used as fuel.  Now, RSA has invented a new stove. It
cooks without flame, using electric resistance. They've been granted a patent
on cooking using electricity.  It covers any materials that the "burner"
is made of. It covers any shape electric "burner".  But it doesn't cover any of
the pre-existing flame systems. You can still buy and build a gas
oven. You can create another new flameless system using microwaves. 

This is what the RSA patent has done.  Private key cryptosystems are
not obsolete. You can still invent new ones, sell them and use them.
Some limited patent protection may be possible for new private key
system innovations. RSA's patent doesn't inhibit nonPUBLIC-key
systems. Private key systems are  unaffected. If you were clever
enough to come up with a KEYLESS system that wouldn't be prohibited
and you might be able to get broad patent protection on that idea.

>#The RSA patent doesn't prevent ALL applications of multiplications of
>#large primes, only the application to cryptology, a narrower domain.
>
>Ah, but I can't even use some "non-multiplication of primes" to do the
>cryptology becasuse the cryptology is patented. Or as you would say,
>the sue of the cryptology is patented.

Actually its is even more narrow. The use of non-multiplication of
primes is only restricted with respect to PUBLIC key cryptography.
Use in other systems is not at all restricted.

>Well, the LZW patent was in terms of data storage on disks. But IBM
>claims that *ALL* uses of this compression is covered, but they won't
>charge royalties unless you build a gizmo with it.

I claim to be the inventor of a pocket chess set. I may claim that all
pocket chess sets not authorized by me have been manufactured solely by
theft or receipt of my trade secrets, and that anyone possesing one is in
possesion of my stolen property. I may choose to sue anyone making one,
selling one or using one if I find out. But I promise not to sue
anyone who sends a monthly check for $8000 for as long as they make,
sell or use one.  How many chess players, set manufacturers and retail
stores  are quaking in their boots, even though many can't afford a
defence in court?  

Competitors to IBM should be more afriad of IBM because it has great
distribution channels than because it has patents. 

>So, even though you *claim* that algorithms are only covered in small
>areas, large companies are saying the exact opposite.
>
>Why should I beleive your intrepretation instead of IBM's?

You should contact a lawyer rather than believe either of our
interpretation. If you do I think they will point out that IBM has a
financial stake in getting you to volunatarily fork over more money
through a threat that is really a bluff. They won't find that I have
any stake in telling you otherwise.   More importantly, they can go
beyond the general case and talk to the specifics of your case.  Is
there something about your use that seems clearly different from the
patent claims? Is there prior art, or a conflicting patent that you
could use to undermine their patent?  Some other reason they shouldn't
mess with you?


>I realize how often it happens. You claimed that they *ONLY*
>liscenced, which means they would NEVER produce.

Some company's license and market while others produce.  A local mom
and pop grocery store doesn't do research to find out what people
would like in a new breakfast cereal. They don't develop and test
potential new breakfast products. They don't manufacture and package
cereals. They don't figure out how to do regional warehousing and
shipping to get it fresh to your store.  All they do is sell you goods
that they didn't research, develop, manufacture or ship. They charge
you money. They charge you for shop lifting if you try to steal boxes
off the loading dock and give them away in the parking lot. They free
the researchers, manufacturers, wholesalers, and others from having to
deal with the general public. The wholesalers, manufacturers and
researchers all get money back from the stores for their efforst and
they can research and manufacture new innovations as a result. And the
grocery stores provide a place for the general public to find products
they want. 

Licensing companies don't research, develop or manufacture the
products they license.  They may not even ship product.  But they
provide a place for the public to acquire product. The researchers,
developers, and manufacturers don't have to become experts in the
areas of public relations, etc. They can focus on production. The money travels
back to the producers along the same kind of chain.  A licensing
company may look like a litigation company when it sues for what it
sees as the equivalent of shop lifting. 

Failure to see how licensing companies facilitate product distribution
(i.e. benefit the end user) is being blind to what makes a grocery
store a benefit to its community and not just an extra cost burden.

-- 

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



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