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: Sat, 3 Oct 1992 07:06:37 GMT

In article <RLK.92Oct2103042@underprize.think.com> rlk@underprize.think.com (Robert Krawitz) writes:
>I'm curious:  how much experience do you have actually writing software?
>The reason that I ask this is because your arguments don't square very
>well with programming practice as I'm familiar with it (I'm a software
>engineer with 5 years experience and other assorted experience).

Fair enough question.  I have been writing software since 1972. For
the first decade working exclusively as a software developer and consultant  
at a number of companies both Fortune 100 and tiny startups, both technical
systems and MIS. In the last thirteen years I have been also a project lead
and project manager at Hewlett-Packard for 10 years, department
manager and general manager of an applications division at a software
house, and recently became president of a software start-up here in
Silicon Valley.  I hold a Masters of Science Degree from CMU. I'm
widely published in a large number of technical proceedings, in 
journals such as the X-Resource Journal, magazines such as HP
Professional. My research work has been the subject of an editorial in
Unix World, and an article in Practical Programmer column of the
Communications of the ACM this year.  My most recent product received
a cover mention in SunWorld magazine and a favorable review. I will
still do a lot of product design, though I  admit that I write fewer
lines these days than I used to, as I am now sharing my time trying to
raise money and market products. But I still keep my hand it, and will
spend a full day debugging Motif programs with my engineers when they
need me to. I wonder if this background is what Mr. Krawitz expected.
Perhaps he will comment.

If my arguments don't square with Krawitz expectations, it may not be
because I have done less programming than Mr. Krawitz, but perhaps
because I have had MORE involvement with licensing software from other
companies, with dealing with intellectual property lawyers both inside
large companies like HP and also while at small companies, plus trying to
raise money for projects from private investors and venture
capitalists.  I'd invite Mr. Krawitz to share a little more about
his own experience managing software businesses, negotiating licenses,
dealing with intellectual property law or raising money so we might
see if this hypothesis might be right.  If some of the other
anti-patent advocates have significant experiences in this managing
software businesses, raising money or negotiating licenses that
would be interesting to know as well.

Before I had these experiences I was more predisposed to
agree with the positions of Krawitz and the LPF. But having seen both
sides now, I tend to see the issue as more balanced.  Some have
painted me as pro-software patent. I don't believe I am, I think I am
still trying to figure out the answer.  I find a few anti-software
patent advocates quite vociferous; but I don't think that they look at
both sides, so I've found myself raising counter-arguments more often
than I would like just to see some balance and debate on the issue.
Occasionally I have criticized some of the pro-patent posters, though
I've found them less idealogically vociferous in general and I probably
haven't picked on them enough.  But few do much posting.

I've tried to focus on flaws I perceive in the arguments and keep away
from my personal reasons why I don't think the LPF is right.  But in
light of having just detailed how my experience may be different than
some readers, it may be appropriate to share just a few views.  First
of all, my personal opinion is that while personal use and sharing
with a few friends can indeed be true infringement, I feel that such
infringers are at very little risk of ever being sued, or of having to
pay any substantial penalties even if they are sued. I wouldn't encourage
people to infringe intentionally, just as I wouldn't encourage people
to break traffic laws though it also appears to me that there is
relatively little risk of detection to most people who speed and that
the penalties for getting caught are low. I don't think we need to
abolish speed limits out of the fear that everyone will get imprisoned.

I personally believe that most patentholders and copyright holders
generally regard this level of infringement to not be a problem worth
worrying about. They might send a threatening letter, just to show
that they were actively defending their patent or copyright (necessary
or you can lose it), but they will generally choose not to do anything
more since it would cost more than it would gain.   Most patent suits
are by $1,000,000+/year  companies and against such companies not
against individuals, because it is only such $1M+ companies that can
pay large amounts of damages worth a suit. 

I further find that it is much easier to license software than
generally acknowledged by LPF and other anti-software patent
advocates. And other industries have made it even easier and cheaper.
I think that the software industry will stumble into such a system,
though I don't have a clue what it will finally look like. But I'm
convinced that it won't require people to do patent searches in
advance to avoid infringement.  Frankly, even without reform I think
this is usually unnecessary. The way awards are made if you
unintentionally infringe and take steps to rectify the situation
(usually by licensing) once a patent holder contacts YOU, you just
don't stand to lose much. It may cost some, but the risk of a package
delivery man slipping on the walk and sueing you is higher. 

In fact, I've talked to a good many
businessmen and engineers in other disciplines (even ones with more
patents than there are software patents) and they don't do pre-emptive
searches. They go ahead do their development and if they find out
later that there is an infringement they deal with it then.  They
might also buy some limited liability insurance just to be safe. And
the smaller (and less profitable) they are, the less they do, because
the award that could be collected becomes small enough to be a
disincentive to prosecution.  If they pre-search patents at all, it is
to license them and avoid the cost of re-invention or to get ideas for
new inventions--I'd like to see more software engineers doing this, so
I think this is okay as an incentive. 

By this I don't mean that software patents, or any patents, are good.
I don't know.  I do know that they are useful to address the questions
of raising money if you plan to do mass commercialization. And I do
think that commercialization of labor saving devices and processes is
a societal good (the good comes more from the commercialization than
from the invention since only when commercialized do many get the
benefits. Whether that is worth the cost or not is something that
still seems a matter of personal prejudice to me.  Here ends my
personal observations. 

>How does this help the individual who doesn't have $10K revenue/month,
>who just wants to write a program and GIVE it away? 
 
If clearing house fees are based upon sales revenue, and you give it
away, your revenue is zero. Hence your fees are zero. At the same time,
if the individual were to bother to patent it and give it to the
clearing house he would get some revenues coming in. It is up to him.
Or if the individual didn't want to use the clearing house for some
non-financial reason they can take their chances with the courts (but
as I said above in my personal opinion I think that their personal
risk is small personal opinion, because the patent holder wouldn't be
able to collect much in damages from them--but if you want to be safe,
go with the clearinghouse).

> How does this help the Free Software Foundation, or anyone else who
> isn't interested in maximizing revenue?  

I'm not sure that it "helps" the Free Software Foundation, but I don't
think that "helping" an arbitrary  non-profit organization needs to
be an explicit goal of an industry clearinghouse, our industry or the
public at large..  I think that the only real goals a clearinghouse
needs are to  reduce patent suit risks, simplify licensing, and
provide a fair reward to inventors who share their inventions with the
clearinghouse (and through it to the industry and public at large).   

But it is not necessarily clear that clearinghouses "hurt" the FSF either. If
fees are revenue based and FSF makes very little (or no) sales
revenues, FSF's costs would be small or zero. It is possible that the
members of the clearinghouse would choose to make the FSF an official
charity of the clearinghouse and exempt it. Or maybe someone else
would pay FSF's fee (Stallman from his MacArthur grant? or maybe even
me if my company does well).  As for others who aren't interested in
maximizing revenues, I think the same applies. Most all philanthropic
organizations have substantial costs--good ones are able to secure
contributions to cover them.  

> How does it measure the relative worth of a patent?

Again, it doesn't, but why is it necessary that this be a goal of the
clearinghouse?  If you want that, why not have the members of the
clearinghouse nominate and vote on the most important newly submitted
patents each year?  Maybe give them an award. There are other ways to
measure the relative worth of a patent.  In any case, in what sense
would not knowing the relative worth of various patents inhibit
further innovation and commercialization (the putative reason for
patents) or contribute to the cost faced by inventors (a putative reason
given by the LPF to ban software patents)?

>This still seems to help the big company that can afford to file
>thousands of patents rather than the individual who can't even afford to
>file a single patent (remember that filing patents is expensive).

It helps an individual because by joining the clearinghouse they get
insurance against a patent suit, and the cost of that insurance is
directly proportional to how much they are making from selling
software. Second, unless they are totally focussed on avoiding all
software they didn't personally invent, they might be able to find
some useful already debugged algorithms that they don't have to
re-invent.

>BTW, $10K/mo. revenue isn't bad for an individual programmer -- that's
>definitely more in the "smallish company" rather than "individual
>practitioner" range.  I've known people who average closer to $2K/mo.

If they earn less, they would owe even less.

>You didn't answer my question.  Do you consider it desirable that
>anonymous FTP of programs effectively be shut down?  Or do you have a
>way to avoid that?

I don't see any reason to shut down anonymous FTP of programs. The
clearinghouse mechanisms and even the current legal mechanisms in place
already address that.  Moreover, the legal aspects of usage of
programs acquired by anonymous FTP are just as likely or more likely
to be concerned with copyright and licensed trade secrets.  Under the
Berne convention, every work of authorship (including programs) is
copyrighted, owned by its creator.  If someone (including the author)
puts a copyrighted piece of software in an anonymous ftp directory,
that doesn't exempt the downloader from legal obligations.  I've
downloaded GNU sources in the past via anonymous FTP.  The GNU sources
are covered by copright and license agreements. I have to abide by
those.  If the software were covered by a patent, and says on it
"patented No. ..." then I need to observe whatever license restrictions
the author puts on it. Maybe (like AT&T did with the setuid patent)
the owner says "use as you like--we won't sue you for patent infringement".
But maybe they would put other restrictions on use like GNU does.
Indeed, since the method in a patent is published, I can see no reason
not to put the software on anonymous ftp, since anyone who wants to
know how it works can read the patent anyway.

Am I missing something? How does some software being patented shut
down all anonymous ftp servers?
-- 

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


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