From: mcgregor@netcom.com (Scott Mcgregor)
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi,comp.unix.bsd
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Date: 2 Oct 92 01:32:58 GMT
Organization: Netcom - Online Communication Services (408 241-9760 guest)

In article <11179.Sep3009.20.4892@virtualnews.nyu.edu> brnstnd@nyu.edu (D. J. Bernstein) writes:
>In article <1992Sep30.035812.124@netcom.com> mcgregor@netcom.com (Scott Mcgregor) writes:

>] You can perform the rubber curing process in your mind, imagining  
>] suitable vats, valves, connected in appropriate ways, operated for
>] appropriate times under appropriate temperatures, and yielding mental
>] rubber.
>
>As I said then: ``Indeed. I will fight to the death to ensure that the
>process of curing mental rubber is not patentable. If you have any
>rubber in your head please feel free to cure it... None of this has
>anything to do with Diamond v. Diehr, which dealt with curing *real*
>rubber. That's a *physical* process.''
    
Great. I think someone should be free to imagine curing rubber too.
And I agree that the Diamond vs. Diehr process is not about imagining
it, but actually doing it.

>As I said then: ``No, it wouldn't. I am rapidly tiring of this argument.
>You cannot, no matter how hard you try, cure real rubber in your
>head.
I agree with this.  But also Mr. Bernstein has yet to demonstrate how
he is going to change actual signals in a modem, or actual polarities
in a magnetic media using only his mind.

>(If you can I'm sure the National Enquirer will run an article on it.)
>Curing rubber is therefore not a mental process. Why do you persist in
>saying that it is?''

I don't. Never have. Please stop sysing I do. On the other hand, Mr. Bernstein
claims that changing signals on a control line of a modem according to
steps in LZW is a purely mental process without (to my knowldege, but
then maybe it was featured in the National Enquirer which I don't read) ever
having demonstrated his psychokinetic powers to do so. Why does he
persist in saying he can perform a modem's tasks totally mentally when at best
he can simulate the physical aspects to the same degree as I can
mentally simulate the changing of the temperature of the oven.

Mr. Bernstein keeps changing the question to manipulating
"information" an abstract mental concept.  I keep talking about
manipulating electronic signals, a concrete physical concept. I have
absolutely no disagrement with him about patenting the mental
transformation of information.  I really don't care one way or the
other. I couldn't detect it, and it can't effect me.  So we can't
argue about this. What we could discuss is the case of the physical
signals.If he uses his mental (hence unknowable to me) information
manipulation method and then APPLIES them physically to a signal on a
modem, he enters the physical world. But he can't appeal to
"information" any more, it is no longer germain. His brain and motor
skills are just replacing a machine in a small piece of a larger
physical process now. Their intermediate internal states don't matter.
I'll defend his right to twiddle "information" in his mind using
whatever mental means he wants.  I merely astk that he defend my right
to twiddle electronic signals on a modem control lead by whatever
physical means I like, including using a computer. 

If we seem to argue past each other it is because I agree with
Bernstein on the case of totally mental processes, but he refuses to
acknowledge this.  He agrees with me on some physical processes (such
as rubber curing) which I acknowledge. But Bernstein carves out a
special group of physical processes (e.g. modem signalling) in which
he chooses to IGNORE or belittle the physical content. It is this
special casing which I object to. Bernstein claims that it is obvious
that these cases represent "inessential" applications of physical
changes. I claim that this is merely opinion.  For the record, I do
agree that courts have sometimes decided that some physical
applications may be inessential, and I further agree that *IF* the
courts found that these were inessential that Mr. Bernstein's reasoning
would be upheld.  But it is this "IF" that I suspect--I think that
some courts would not rule these as inessential in some cases such as
the proposed modem case.

>Where, since you obviously haven't been paying attention, the _court_
>said that. I'm not the person who invented the phrase ``insignificant
>post-solution activity.'' That's a legal term now. The fact that nobody
>can codify the meaning of ``insignificant'' doesn't stop normal people
>from agreeing on what it means in most cases. That's how law works.

I agree that courts have used this reasoning. Normal people may even
agree on what it means in most cases.  I merely claim that this is not
such a case. In the case of a modem, many software developers may see
it as Mr. Bernstein does. many hardware manufacturers would see it the
other way, many other people can't tell the difference between
hardware and software.  I think that many of them would tend to err in
favor of what is physical, concrete and measurable, and so uphold a
physical process interpretation. That's just my opinion and Bernstein
and can just agree to disagree on this. Maybe when Bernstein argues
his modem case to the Supreme Court or CACF we will get unimpeachable
evidence.  Until then it is speculation.

>When you invent a data compression algorithm, how you use tape magnets
>is irrelevant. The question of whether you use tape, or disk, or your
>head, is irrelevant. The invention has nothing to do with the magnets in
>this case. Using the magnets is inessential for the use of this
>algorithm.

What if the putative question is not the invention of a data
compression algorithm but the invention of a faster modem, in which
data copression is just a means to achieve that increased speed. Is
not the signaling essential in such a case? If the invention is a disk
controller which stores more apparent signals in a constant area
(again where data compression is a means to that end) is the disk and
tape irrelevant? I'm comfortable opposing the patenting of a data
compression ALGORITHM. I'd also oppose the patenting of the Diamond
vs. Dienr controller ALGORITHM. But not the extention of that to the outlawing
of patents on modems or disk controllers or factories that use them. If Mr.
Bernstein agrees that the latter physical devices and process
improvements (i.e. a faster modem by means of applying the following
steps...)  should be patentable then we are really in agreement.  
>
>Is there anyone, anyone at all other than Scott, who refuses to
>understand this blazingly clear distinction?

Certainly the majority of readers on comp.patents who identified
themselves as intellectual property lawyers have indicated to me their
agreement. I've also observed this with many lawyers and
non-programmers outside this area. Such people are as likely as not to
be represented in a jury as the programmers who disagree here.


>I am not. I will give you exactly one reference: the USPTO article in
>the Official Gazette of 5 September 1989. Go look it up. Your ``belief''
>is garbage.

Thanks for the reference. It doesn't appear to address the specific
case we are addressing here of control signals on a modem. It appears
that Mr. Bernstein has extroplated from a general comment to this
specific instance (unless Bernstein means some other thing than what I
think he means, perhaps he can show us the specific quote concerning
modems.

> Please learn something about the law, Scott.

I am trying to. I don't claim any amount of certitude that Dan does.
One thing that I have "learned about the law" is that there is a great
deal less unanimity of opinion among legal people on these questions
than there is among programmers or LPF members.  At present these
other people seem to me more representative than LPF members of
opinions of the populations that drafts and passes statutes, which
administers them at the PTO, passes judgement in court, or acts as
jury members in jury trials. Mr. Bernstein assures me that while
mental processes are unexaminable that he knows in advance exactly how
these people will rule on these questions. It is disturbing to me that
what he claims will be their ruling is largely in disagreement with
most of what I have heard them say.  Mr. Bernstein and the LPF may in
fact be correct about what is best for the country, and yet this may
not make one whit of difference if these decision makers don't see it
that way.  And that's really the only issue I am concerned with: the
persuasiveness (or unpersuasiveness) of the arguments from public
policy members views.  If unpersuasive what is right may still not be
implemented.



-- 

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
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi