From: mcnally@quip.eecs.umich.edu (Mike McNally)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Organization: University of Michigan EECS Dept., Ann Arbor, MI
Distribution: usa
Date: Fri, 6 Nov 1992 17:56:29 GMT

In article <1992Nov5.213554.2337@fcom.cc.utah.edu> terry@cs.weber.edu writes:

>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.

While you are correct that the blame belongs elsewhere in the system than
with the theoretical concept of patents, it is important to note that it's
not very useful to talk about how patents *should* be.  If we are going to
discuss the pros and cons of software patents, we need to address how 
patents actually are granted and enforced, since we live in a substantially
less-than-ideal universe.

>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.

Again, I agree with your opinion that patents, specifically, are not at
fault here.  However, until our legal system is reformed, instituting a
system that dramatically increases the potential to stifle new ideas 
through legal intimidation will not benefit the public or promote progress
in the arts and sciences.  In fact, there is a considerable risk that it
will retard progress, which is undesirable and contrary to the anticipated
benefits of a software patent system.

>>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.

Perhaps he should believe Scott's intepretation (I'm not sure that the courts
would) but he must act as if IBM's version is correct or be tied up in
costly lawsuits until his product is so out-of-date it's no longer marketable.

>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.

Lack of a just and efficient means of resolving and enforcing patent
disputes seems to me to be sufficient reason to not broaden the range
of intelectual property that falls under patent protections.  Why open
even more areas to monopolistic and oligopolistic abuses, especially
when those fields are increasingly critical to our nation's production 
and economic growth?  When you manage to reform the American justice 
system so that equal and equivalent access to the courts is a reality
and not just an empty promise, then you can try to convince me that your
notion of software patents is a good thing (and you'll probably succeed.)
Until then, however, perhaps it would be more productive to talk about
them in light of the way things are rather than the way we would like
them to be.