From: mcgregor@netcom.com (Scott Mcgregor)
Subject: Re: Letter asking for help with Apple from the US VP
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Distribution: usa
Date: Wed, 30 Sep 1992 04:14:06 GMT

In article <mellon.717783054@pepper> mellon@ncd.com (Ted Lemon) writes:

>Finally, there aren't yet very many software patents, compared to most
>other fields of endeavor.   The effort involved in doing a patent search
>on an individual algorithm in your program, multiplied by the number of
>algorithms in an average interesting application, is already onerous - the
>only mitigating circumstance is that most people simply don't do this -
>they just wait and hope that they won't be sued.

Historically, this (plus liability insurance in case you are wrong or
someone just wants to hit you with a nuisance suit anyway) has been an
economicly correct choice. This is even true in many other more mature
manufacturing industries where there are already many more patents
than software has today. It is not clear why this would not be
economically correct in the future given experience of these other
industries. 

>When the number of patents on software has increased by an order of
>magnitude, the likelihood of a program infringing on a patent will have
>increased by that same amount, meaning that more people will consider it
>necessary to do patent searches.   At the same time, the number of patents
>needing to be searched will have increased by an order of magnitude, making
>the already onerous cost mentioned above prohibitive.   Small companies will
>stop selling software, or if they do sell it, it will cost an order of
>magnitude more than it costs today.   That is not the purpose for which the
>patent system exists.

Or alternatively, they may find cheaper ways to discover and license
other companies intellectual property.  It is practically impossible
to manufacture a car today without using hundreds of patented parts
and processes.  But car companys do it.  Radio stations couldn't be
economic if they had to make individual license agreements with every
songwriter and recording artist.  Some suggested that they should
therefore be allowed to replay recorded music without paying
royalties, essentially equivalent to excluding software from patent
laws.  Instead the industry created the clearing house system.
Licensing thousands of protected materials now goes on each year at
radio stations, at extremely low costs, and with widespread access.
Patents and copyrights are different things but this arguement is
about the onerousness of licensing, or avoiding licensing, and that is
common to both.  In any case there are patent clearinghouses too, and
other means to reduce the burden.  But some people never raise the
possibility of such alternatives being applied to solve this problem
for software.  Maybe that is just because they would prefer to be free
to copy without paying royalties (as some radio systems did before the
clearinghouse solution was adopted).  Or maybe the just don't like it
for some other reason.  But I haven't seen any compeling explanation
why people in the software industry are more mentally or socially
impaired than other industries who have found inexpensive ways to
manage these burdens.

-- 

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