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, 13 Oct 1992 05:31:05 GMT

In article <id.OR0U.JXD@ferranti.com> peter@ferranti.com (peter da silva) writes:

>But you have an absolute defense, in that I have never had any access to
>trade secret protected code. AT&T can't play that game too many times.

You still will have to prove it.  If there are substantial
similarities judges and juries may consider it more reasonable that
you did derive your stuff than that you wrote it from scratch. The
consideration in this case is "the preponderance of the evidence" and
both of you might have very little hard evidence (proof by absense of
evidence can be difficult).

>Oh, now you're accepting that a threat of a lawsuit *is* a reasonable
>fear. You seemed to be denying it earlier on.

I'm accepting that the LPF viewpoint and some advocates here claim
that a reason to oppose patents was the threats of lawsuits.  An
alternative which also achieves the same objective of reducing
lawsuits is reasonable to discuss, and that may be a benefit for those
who do fear increasing lawsuits (Yes, I am not one of them, but this
may be an advantage of a clearinghouse to those who do fear them).

>I don't expect AT&T would be a member. They would have their own patent
>pool for defense, so they don't need to join anything like this. If sued,
>they can play musical patents forever. What is their benefit for joining?
>They'd get some money from royalties, but would almost certainly pay out
>muchmore in royalty payments.

It is not at all clear that they would pay more out than they would
receive in. Patent pools (with other large companies) provide even
less royalties (usually none, due to free cross licensing with other
members, which are usually the only ones who would pay). So if they
are in patent pools they are likely to register those patents with
clearinghouse just for the extra royalties they would bring in.  And
this would of course make them available to the smaller members who
aren't members of the patent pools.

>> I don't understand this argument because he CAN distribute it just as
>> freely as under GNU.
>
>I don't *operate* under GNU. I don't have to. I can opt out, and I have opted
>out, and I've said so any number of times. Why do you keep bringing it up?

Okay, forget GNU.  Peter can distribute your sources however he wants.
The can be a member of the clearinghouse or not. It has absolutely
nothing to do with distributing sources.  It only has to do with
whether you want to be free from risk from a lawsuit from members of
the clearinghouse or not. Programmers are free to do join or not.
They are free to distribute sources or not. If they don't join they
are in exactly the same situation they are in today.  If they join
they avoid the threat of a lawsuit. You choose.

>But those risks are *exactly* what this debate is about. 

Yes, here is a system that offers to reduce risks relative to what we
have today. It is voluntary. Peter wants to opt out. Fine. Since it is
voluntary he can. But by opting out he doesn't get the risk reduction.
As an alternative we look at an involuntary system in which those who
want to participate in a patent system won't have that choice. I can
see arguments for both sides.  But it is not reasonable to complain
that a voluntary system doesn't deliver the same benefits as the
involuntary system--if that you only fail to get the same benefits by
CHOOSING to opt out.

>My point is that
>software patents are, and will continue to be, an unnecessary burden that
>hurts innovation. 

I see Peter's opinion.  But that's what it is, just opinion. We
disagree on this.  The question is whether there is possibility of
agreement on alternatives, or whether we have to settle for agreeing
to disagree.

>I'm not arguing that your clearinghouses are a bad idea
>in and of themselves, but that they are only a partial replacement for the
>status quo,  and that the main beneficiaries of software patents are lawyers,
> not inventors.

I don't see how you conclude the lawyers benefit, since there are
fewer litigation suits, and fewer contracts to draft.  In general one
of the advantages of clearinghouses to participants is that they
reduce the legal costs. And in general, this most benefits those who
can least afford legal help and who have least experience negotiating
contracts--the small inventors in this case, and individual composers
and songwriters in the ASCAP and BMI case.  Peter hasn't shown how a
clearinghouse would benefit lawyers in any way, he just claims it. I've
demonstrated that there would be fewer such cases, both by reasoning
from the fact that licenses are automatic not individually reached,
and by comparison to other clearinghouses.


-- 

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



Xref: sparky comp.org.eff.talk:6404 misc.int-property:1175 alt.suit.att-bsdi:486 comp.unix.bsd:7293