From: kurt@eskimo.celestial.com (Kurt Cockrm 762-6417)
Newsgroups: comp.patents
Subject: Clear and Present Danger, was Re: patentable vs. unpatentable software
Keywords: PTO runamuck, lawyers are the problem, drastic action needed
Date: 8 Apr 92 09:39:20 GMT
Organization: Cores 'R Us


[mod- I apologise for not posting this article earlier... ]

In article <4515@cluster.cs.su.oz.au> patents@cs.su.oz (patents newsgroup moderator) writes:
>In article <4487@cluster.cs.su.oz.au> 0001811496@mcimail.com
>(Carl Oppedahl) writes:
>
>> Now the perceptive reader will suggest that if the
>> characterizations I have given above are faithful indications of
>> how it works in the U.S. Patent Office, then it is perhaps too
>> glib to say "you can't patent computer software".  That is, one
>> may suggest that if all one must do to render something
>> patentable is to recite at least a couple of nouns of hardware,
>> then mere software can be made patentable simply by reciting an
>> input device or two, and maybe an output device. 
>
>Suspicions confirmed.  Pure algorithims are not patentable in theory,
>but the actual behavior of the Patent Office and the courts makes
>algorithms in fact patentable.  One can only say in response that the
>current situation in software patents is an unmitigated disaster for
>the United States that will eventually ruin the usefulness of computers
>here if something is not done.

There are a number of possibly repugnant things programmers can do here:
1)	Patent everything you invent.  Flood the PTO with applications!
2)	Conduct massive civil disobedience.  Ignore all s/w patents.
	Flood the courts; fill the already drug-war-crowded dockets.
	If a case takes 4 years to come to trial, a lot can happen in the
	mean time.  Decrease the already low s/n ratio in courts to microscopic
	levels.  Maybe they'll have to legalize drugs in order to clear the
	dockets enough to deal with the onslaught of cases :) !
3)	Resist judgements by all means possible.  Refuse to cooperate.
4)	Refuse to have anything to do with lawyers.  Use non-litigative
	means of conflict resolution.
5)	Lawyers who depend on litigation support systems are in the position
	of a malpractice lawyer who needs a coronary bypass.
	Don't support the LS systems of lawyers who support software patents,
	or who contribute to the problem;  ostracize scab programmers who
	support such systems.
6)	Exploit the properties of software as much as possible: easy
	replicability and transmissibility.
7)	Run "makes" on uncooperative lawyers.  Find out their skeletons in the
	closet, a la Clinton, and USE that information wisely.

The idea here, is to break the system by overloading it.  The PTO, the courts
and lawyers have to be brought to heel.  They have gotten way too big for their
britches.  Of course, this is all pretty risky, but our livelihood is at stake.

Note that the software patent attack is taking place at precisely the time
when the combination of high-speed telecommunications and super-cheap
high-performance computers, virtual reality, etc. promise to make social
changes that we haven't even begun to anticipate -- see recent issues of
Whole Earth Review, various white papers put out by EFF, LPF, etc.
I suspect that the conservative leadership of this country is scared
shitless by the possibilities of grassroots empowerment that easily
programmed decentralized widespread computing power offers.
It would appear that this is a possibly desperate attempt to get this period
of unpredictable change under control, by means of "social engineering".

One way of curbing the grass-roots activity that would accompany the advent
of these systems would be to get the programming activity under control,
i. e. to restore the priesthood that was deposed by the personal computer.
It's pretty obvious that the only people doing programming in a situation
where practically every technique used potentially infringed on some patent
would be a very small group, possibly armed with dispensations to use
techniques that would be barred to the rest of us.  This may be a way of
"finally getting the programmers under control" -- a concept that has been
the obsession of managerial types and control freaks ever since programmers
have existed.

This would be done by presenting legal hurdles that only a few programmers
would be prepared to deal with.  This in turn would greatly limit the
variety of applications to those which were "approved", i. e. cross-licensed
by large users and suppliers from patent holders.  Spreadsheets might be in;
BBS'es would be out, at least to those without deep pockets.  In addition,
this would eliminate a potential source of trouble, public domain and
FSF-style software.  We would need a new word, "fringer", or "fringie",
meaning a software patent infringer; This would give prosecutors a new tool
to harass hackers with.

I think the PTO antics are only the tip of the iceberg, with respect to
consolidation of political control via things like GATT, unification of
formerly sovereign political entities, the Drug War, etc., etc.

While this may be construed as flamage, paranoia, and an impractical
pipedream, the lengthy discussion of patenting algorithms and mental
processes, plus the mind-boggling scenarios presented by James Craig Burley
(no putdown to him, who has formulated IMO some of the most cogent postings
in this group) border on the surreal;  the tone of discussions are akin to
those conducted in the Middle Ages about angels dancing on pinheads.

It seems pretty clear that the programming trade as we know it would be
destroyed if we allowed this to happen.  It may become necessary for
programmers to do something drastic.  What that may be I leave up to
your imagination and the group mind.  We need some imaginative thinking
around here; this is an emergency.  The more software patents that are
issued, the more the present position of the PTO becomes entrenched, and
the more people there are who have a vested interest in the system as it
currently exists.

I wish there was a presidential candidate who had a clue about some of these
issues; them and senators, representatives and similar clueless types are the
ones who need education here.  Judges, mostly being conservative and lawyers
to boot, are probably beyond redemption (there may be a few holdovers from
pre-Reagan administrations, but most of these are starting to die off).
The issues may be too subtle for the non-lawyers, though.  How can you
explain these concepts to somebody who can't even solve a quadratic
equation?? :( :(  Jerry Brown may be smart enough; I'm not sure the others
are, except maybe Tsongas, who is out of the picture.  Really need a
Libertarian here, but they aren't even in the running.

To sum up, I think there has already been too much time spent discussing the
pros/cons of software patents.  I'd like to see some discussion of what could
be done about them.

kurt@grogatch.celestial.com (Kurt Cockrum)