From: rcain@netcom.com (Robert Cain)
Subject: Re: Public Key Patents
Organization: Netcom - Online Communication Services  (408 241-9760 guest) 
Date: Tue, 17 Nov 1992 05:51:06 GMT

Subject: Re: Public Key Patents
Newsgroups: sci.crypt
Organization: Netcom - Online Communication Services  (408 241-9760 guest) 
Distribution: 

WHMurray@DOCKMASTER.NCSC.MIL writes:
: 
: >Bob Cain    rcain at netcom.com   408-358-2007:
: 
: >The only thing that really sticks in my craw is the fact that all the
: >work was funded by taxpayers.  This is a fundamental flaw in the system
: >and we should be working to change that.  Any country's citizen should
: >have unlimited rights to use any patent resulting from its government's
: >funded work!  That could still be made law and should be.
: 
: Be careful what you ask for, you might get it. "UNLIMITED rights to
: use" might result in no patent at all.

I'm prety close to being ready to bite that bullet with publicly funded
work.  Further consideration after my posting shows me many problems in
determining just who exactly, when you begin considering corporations,
should have those rights.

: 
: My understanding is that Public Key Partners, Inc. was established by 
: the original owners of the public key patents, Stanford University, 
: the Massachusetts Institute of Technology, et. al., to exploit their 
: interests in the patents.  Both are publicly chartered institutions 
: whose charters permit them to develop own and exploit patents.

Correct.  I am arguing a question relating to funding.  I am informed
that in fact the work in question was partially funded by public money
and partially by these private institutions themselves.  I believe that
substantial public funding should confer public rights and I leave the
definition of substantial for debate.

: 
: My understanding is that there is no intent to restrict the use of the
: patents beyond what is necessary to protect and preserve the interests
: of the constituencies of the of the owning institutions.  Indeed, it
: would likely be considered a breach of fiduciary responsibility to fail
: to do so. 

If and only if the institutions are not substantially funding the work
with public funds.  If they are, the question of ownership is the issue.


: 
: They have exploited the patents, in part, by licensing them to 
: hardware and software developers and vendors.  Equity to those who
: have paid for the use of the patents requires that the owners defend
: them from use by those who have not paid.  Otherwise there would be
: no value to the license.

To make such a thing retroactive would in fact be inequitable to those
who previously paid.  This needs further consideration but I am not sure
such inequity is any worse than the inequity that exists when I cannot
use an idea I was forced to pay for.

: 
: I am not aware of how the original research was funded.  If there were
: federal funds involved, then it safe to assume that they were disbursed
: under the usual contracts governing such funds.  These contain 
: provisions that stipulate who will own the resulting research product.
: It is equally safe to assume that the federal government can and would
: defend any surviving 'taxpayer' interest.  

What!?  The federal government has a troubled history in this regard
and it is at most safe to assume that it can and would defend its own
interest.

: 
: Now with all due respect to the discomfort in Bob Cain's Craw, I think
: that in this particular case it is a little late to complain.   It seems
: as though everything has happened in accord with existing public policy.
: The inventions  are widely available, and the owners equitably compensated.  
: In this case it is a bonus that the primary owners are educational and 
: research institutions.

Too late to complain?  When is it too late to correct an institutional
inequity?  I agree that what has happened in the PKP case is well within
existing policy.  I wish to see that policy challenged.  You say the owners
are equitably compensated.  I argue that the taxpayers are substantial
owners who are in no way being compensated.  I don't intend to pick on
PKP but dollars changed hands in the transference of the rights to the
PK patents and none of it came back to the taxpayers that at least helped
fund the work.  To reiterate, there was nothing illegal or shady being
done by PKP.  They worked well within (and brilliantly I think) the policy
at the time.  It is, in my opinion and others from my email, just incorrect
policy.

: 
: To avoid further discomfort Bob may wish to revise the policy to provide 
: for a different distribution for the future.  If so, Bob, you may wish
: to study the history of patent law.  It is very interesting in its own
: right but my reading  suggests that it has served us very well as it is.

I could be persuaded I think (I'm not certain) that a revised policy should
only apply to work patented after the policy change.  Mostly I am willing
to consider this simply because it is the only way a policy change has a
snowball's chance in hell with the forces that mostly influence legislation.
That is not quite true.  It would also have a very negative impact on the
lives of innocent people whose jobs depend on that earlier policy if change
was retroactive. 

I would like to study that history as regards this specific issue.

: Limited patents are granted by the government because we have concluded,
: after considering and trying alternatives,  that that is the best way to
: serve the public interest.

Not within "modern" times.  Mr. Sternlight has pointed out that it was
debated and settled publicly in the '50s.  I was in high school then
and missed the debates.  I would appreciate a reference that sumarizes
them, what parties were involved and how the decisions were made that
detemined existing policy regarding public use of publicly funded invention.
It may well have compelling logic behind it but it sure isn't obvious
from here.

:                             While it may not work perfectly in all
: cases, it works pretty well on balance.

Absolutely agreed.  I believe, however, that it can be improved.

Bob
-- 
Bob Cain    rcain@netcom.com   408-358-2007

"There are some strings.  They're just not attached."
                                                    Victoria Roberts


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