From: mcgregor@netcom.com (Scott Mcgregor)
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: 5 Nov 92 07:47:58 GMT
Distribution: usa
Organization: Netcom - Online Communication Services (408 241-9760 guest)

In article <1992Nov4.152642.13664@murdoch.acc.Virginia.EDU> gsh7w@fermi.clas.Virginia.EDU (Greg Hennessy) writes:
>#>I think that playing "what if" games is pretty damn useless. 
>
>#I'm afraid that judgement that RSA has had a bad effect is also
>#somewhat hypothetical. 
>
>I don't. I am 100 percent confident that Dan Berstein, or someone
>else, would have released a package by now that would allow me to use
>public key cryptology in e-mail if the RSA patent did not exist. 

It is certainly possible.  But I think that it is also possible that
not many people would care. Many mail systems have had cryptology
built in  for years.  But they aren't widely used. In general, it
isn't the debate over whether the particular crypto system they employ
is "secure enough" but the absence of a widespread standard, i.e. not
enough critical mass, that has hampered them.  If everyone were
developing their own variants of RSA with different key lengths, etc.
we might be even further from this.  In any case the ITAR regulations
have put a major damper on the critical mass situation to date.

By the way, you ought to contact RSA if you are interested in this
sort of application, you may find that much of what you want can be
had from them for an individuals use in some cases for free.  In the
not to distant future it will be built in the OS on Macs, and in apps
from Microsoft so it will be effectively free for users of such
systems anyway.

>#We don't really know if the patent has helped [...]
>
>If we don't know that they help, why support them?

Why indeed? And if we don't know that they hurt (and I don't) why
oppose them?   It is very hard to tell whether patents (and I include
all patents here, not just software patents) are net good or net bad.
I think that we can say that they are some of both and the mix isn't
clear. But we have a patent tradition, and given that it is built into
the way many aspects of our economy work, tinkering with it puts the
good aspects of our economic system at risk.  I'm for greater
understanding of their minuses AND plusses, and not for a runaway
train for or against patents, or software patents.

>Are you under the impression that patents are supposed to be good for
>investors and liscensees? They aren`t, at least in the United States. 

I am under the impression, or rather know from direct experience, that
many investors and licensees think that they are good for them and
make actions based upon those assumptions. I know that in the absence
of patents in particular cases, they often make disinvestment
decisions. If such a policy were general instead of specific it might
greatly perturb their current investment schemes, and that could harm
the industry.   Whether they are right or not turns out to matter less
than what they believe, and how the behave based upon beliefs--this is
common in all markets.

>Just because RSA gets more money if they are granted a patent on a
>concept, does not mean that we should grant patents on concepts. 

I agree.  It is also not a reason to oppose them either.

>"I'm not claiming a patent on the concept of breathing, just on the
>USE of breathing."

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".
But patents don't prohibit that, through publication they even
encourage it. That's why I think Bernstein's mental process model
ISN'T prohibited by today's patent law, it is the application of his
mental processes that may be prohibited.  That's what lead to the
whole exchange about whether the application was incidental or not (a
discussion that wound up with us agreeing to disagree).

>And what do you mean that USES are claimed under patents, not usage?

A miskey, I meant USES, but not concepts or "ideas", not "usage". Sorry.

>Well, the law is stupid in many cases, and I prefer to talk in plain
>english.  

>If you are saying that there is a difference between patentening a
>concept and patentening the use of the concept, then I will regard you
>as making sophomoric statements and no longer respond. 

Perhaps that is for the best, if Hennessy doesn't see the difference
between thinking about a thing and doing a thing, and considers it
more plain english to treat them as equivalent rather than distinct.

>Your "distinction" makes no difference, except to lawyers and other
>word splitters.

I think it doesn't to Hennessy. But most of the general public
understands how they can USE an implementation of RSA if it is built
into their Macintosh.  But the unimplemented concept of RSA is totally
useless to them, because most of the general public will never
implement a program for themselves. To the general public there is a
great difference between a mere concept and an realized application.
And to the general public there is a big difference between a mere
invention and a marketted product that they can buy. It is not
surprising to me that readers who don't share this appreciation for
the distinction would oppose software patents--what mystifies me is
how they could approve of non-software patents. 

>#I think all those cases would likely have been about the use of
>#RSA patented processes and not about the concept itself.
>
>Name *ONE* single difference between patentening a concept and
>patentening the use of a concept.

If I could patent a concept I could sue you for infringement for
thinking about it (i.e."making" the concept) or talking about it
("distributing" it.) or selling a book that describes it.  None of
these are prohibited.  

Even more salient is that the concept may have MANY uses, and the
patented USE might be only one.  A patent on USE of a sort routine to
arrange a list  (if such an obvious case were allowable) is much more
limited  than the concept of sorting, which could also be USED merely
consume a certain amount of time, or for benchmarking--all different
and noninfringing uses of the same underlying "concept" of sorting and
even of the same underlying algorithm. 

The RSA patent doesn't prevent ALL applications of multiplications of
large primes, only the application to cryptology, a narrower domain.
Failure to appreciate this difference seems to lead some people to
worry that an algorithm in a patented program would infringe if
independently used to accomplish some completely different purpose in a
completely different program.  It wouldn't, but I think confusion over
the difference between the idea and concept, and a single use, is what
leads some people to this erroneous conclusion 

>Gee, and I always thought that Apple and Microsoft created their own
>ideas, and wrote their own software. Silly me.

Licensing is even more common than people who don't do it realize. It
isn't just large players which license, small players regularly
indulge as well.  But big players major strength is their distribution
channel, if a knock-off copy is easy enough they'd rather steal part
of an existing market rather than pioneer a new one.  This leads to
more competitors, but with fewer over all products to choose from.
Incentives to commercialize new products may lead to fewer
competitors, but more new markets.  The latter is normally considered
the more "innovative" and "progress" oriented situation of the two.





-- 

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
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi,comp.unix.bsd