From: terry@cs.weber.edu (A Wizard of Earth C)
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 21:35:54 GMT
Distribution: usa
Organization: Weber State University  (Ogden, UT)

In article <1992Nov5.160500.18105@murdoch.acc.Virginia.EDU> gsh7w@fermi.clas.Virginia.EDU (Greg Hennessy) writes:
>Scott Mcgregor writes:
>I think handing out monopolies on the basis of "we don't know that
>they hurt" is very bad public policy.

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

>You also need to be aware that many of us who oppose software
>patents understand the first sentence. As to the second sentence, 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.)

They don't publish sources; they publish papers about sources.  Look at the
Ficus and MARUTI papers, and then try to get sources.  I have a favorite
applicable quote here:

	One of the things that concerns me is the persistant tendency
	to emphasize too heavily ... the importance of relationships
	between universities and industry as a means of getting ahead
	competitively [promoting advancement].  The validitiy of this
	linkage is far from clear.  If universities are really the
	key ... why did we grow faster than other countries during
	the late nineteenth and early twentieth centuries when our
	universities were mediocre, and why is our productivity
	lagging behind other nations now that our universities and
	their scientific achievements lead the world?

			-- Derek Bok, _The Changing University_

One of the major universities that *does* publish sources is under attack
right now (UCB/CSRG) by a commercial company (AT&T) not because of any
patent issues, but because of copyright and trade secret protections.  The
attack has also effected two other major universities that *do* publish
sources (CMU and MIT) by causing the withdrawl of particular sources that
are threatened by the suit.

Copyright protection is renewable any time a code change occurss (only
new code should be covered by a new copyright, in my opinion), and trade
secret protection can be held indefinitely.

>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. 

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

>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.

RSA built a new stove, patented a new stove, and will sue you for building
a stove like theirs *or* for cooking, the first being legally defensible, if
RSA truly has the views and motivations you say they do, and they act in a
fashion consistant with those views and motivations.  I can't accept the
action against TRW as evidence of this without examining their cause-of-
action.

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


>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.
>
>So, even though you *claim* that algorithms are only covered in small
>areas, large companies are saying the exact opposite.

Again, you are not making a distinction between the claims of the patent
holder and the protection offered the patent holder by virtue of the
patent.  Threat of litigation and the probability that such litigation
will be upheld are two very different things.

>Why should I beleive your intrepretation instead of IBM's?

You should believe his interpretation because IBM could profit from the
interpretation you ascribe to them, whereas there is no direct profit
motive evident on Scott's part.

Don't confuse problems with the civil law system with problems with the
issues being litigated within the civil law system.  Yes, it is necessary
to take these into account for risk assessment if you are going to make
a business decision; no, they are not legally equivalent.  The patent
system is enforced and adjudicated by the civil law system; it does not
embody it.  To draw an analogy, a problem with the criminal law system would
not make our laws against murder a bad idea; instead, it would necessitate
the problem in the criminal law system be addressed.  Misenforcement can
not be used as an argument against the law being misenforced... only against
the misenforcement itself.


					Terry Lambert
					terry@icarus.weber.edu
					terry_lambert@novell.com
---
Any opinions in this posting are my own and not those of my present
or previous employers.
-- 
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