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: Thu, 1 Oct 1992 23:17:28 GMT

In article <RLK.92Oct1161235@underprize.think.com> rlk@underprize.think.com (Robert Krawitz) writes:
>No, it's not necessarily a subroutine:  the backing store patent can be
>violated in a single line of code.  Whether I accept the subroutine
>model isn't at issue -- what the patent holder accepts is.  BTW, a 100
>line subroutine is fairly long in a language like C or Lisp.  And the
>patent might be violated only by combinations of subroutines.

This just argues that the total number of patents is even smaller than
I was allowing.  That means less probability of an infringement, less
need for checking, lower cost liability insurance, fewer royalties
likely to need to be paid. If Krawitz is correct, it suggests that the
actual risk and financial implication to most hobbyist software
developers is likely to be low in practice, even if it could
"theoretically" be much higher. I suspect Krawitz may well be correct.
Probably nothing much in this regard will affect such programmers, as
they are unlikely to have anything of value that a patent holder would
want to sue for.


>Perhaps.  Most other industries don't have the level of cottage industry
>that software does.
True, but most COTTAGE INDUSTRIES have a great many more DESIGN
patents than software does. The ability to tell if one design is the
same is even more of a judgement than is telling two algorithms. At
least in the algorithm case you can run a putative test case. 
>  Unlike determining which songs a radio station
>plays, determining what patents a computer program might violate is much
>more difficult.  For the Microsofts and IBM's of the world, that's not a
>problem; simply cross-license all applicable patents.  Among companies
>of comparable size, doing comparable work, that sort of thing is
>reasonably straightforward.  Do you have any good idea how the
>individual working on a Mac at home is going to handle this (I
don't)?

Just one possible way by way of example: All software inventors who
want to participate contribute their patents to a patent license
circle. In exchange they agree to an proportional part of the earnings
of the patent license circle.  People who contribute more patents will
receive more, those who contribute fewer would receive less. It
doesn't make a difference if that contributor is IBM or an individual
at home with a Mac.  On the flip side, the patent circle would charge
all patent users a fee.  How big a fee would depend on the size of the
distribution of the products the seller has.  An individual using it
for their own use would pay nothing.  A small company with sales in
the 10s to 100s of units per month (or measure in $10K revenue/month
if you like) would pay a nominal fee.  Microsoft, IBM, etc. would pay
a substantial cost. Paying members of the circle would be exempt from
patent prosecution for patents held by submitters to the circle,
whether that use was intentional or accidental. On the other hand,
people who don't pay the royalties due are liable to be sued by the
circle on the behalf of the owner.  The circle would choose cases to
prosecute to minimize the cost and maximize the potential gain--this
probably means that defendants would most likely be large companies,
not individuals, and more likely to be clear cases of infringement
rather than marginal ones. 

Such a system rewards those who share a lot of innovations (patents)
which means that more are likely to be applied for and granted. This
would generate a large body of "prior art" accessible to the "rote"
programmer who is willing to pay a license fee. If they aren't so
clever at programming this could be a real boon. The popularity of
books of code examples, and algorithms suggests that there is an eager
audience out there.  This system has as a plus that it is far less
onerous on all participants.  A potential negative is that it makes a
poorer distinction between the "value" of a patent, since all are
rewarded equally. There's always the possibility of opting out of the
system (just as you can do in radio), but then the expenses or risks
of enforcement or licensing are yours. In radio no one makes this
choice even though it is theoretically possible.  It is not perfect, no human devised system is, but it might be good enough.

>Maybe not 1 million, but 10,000 to 50,000 isn't unreasonable for a lone
>programmer writing a single program.  And lone programmers don't
>necessarily worry about commercial quality (whatever that means, given
>that GNU software is more reliable that most vendor software, anyway)
>software, either, particularly if they aren't expecting to make lots of
>money to it, or just want to sell it to a few friends, or put it on the
>net as freeware.  There's a lot of cottage industry out there that
>operates to different standards than what you seem to expect.  Forcing
>everything in /pub on uunet to be checked for possible patent violations
>will effectively shut down that industry.  Do you consider this
>desirable?
I don't think that we need incentives to encourage invention and
sharing with friends, and I don't think that the patent system
provides this nor interferes with this.  But I think that
commercializing an invention, taking it from a few friends to millions
of consumers is a difficult thing, requires much hard to raise capital
and that is worth encouraging. The patent system may provide such
incentive for commercialization.
-- 

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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