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: 9 Oct 92 00:29:01 GMT
Article-I.D.: netcom.1992Oct9.002901.14966
Distribution: usa
Organization: Netcom - Online Communication Services (408 241-9760 guest)

As I reviewed Peter da Silva's comments I see that we are much more in
agreement that I thought. Both of us think that mathematical algorithm
patents are a bad idea.  The major disagreement we seem to have is
whether there are any such critters. Peter thinks ther are, and gives
LZW and RSA as examples.  I think there aren't.  I think that both LZW
and RSA are merely broad patents, but even they have their application
limits. I don't believe that you can be held to infringe LZW if you
use it to encrypt data (the only covered purpose I can see is reducing
the number of bytes for a message (i.e. compression). As it turns out,
compressing a message (modem use) is also one step in compressing
storage, so this can be pretty broad coverage, but it still isn't just
on the algorithm, it is on the application of that algorithm to a
specific purpose.  Similarly, from my view, RSA covers only the use of
the algorithm for encrypting.  If you used it to "compress" data that
wouldn't be prohibited. 

I don't believe that there are any mathematical patents that are not
dependent upon application area.  I don't believe any will be granted
in the future. And I don't believe that if granted they would be
upheld if someone with an entirely different application in mind
challenged them.  Because of this, I don't see the risks the same as Peter.

In article <id.4EWT.75D@ferranti.com> peter@ferranti.com (peter da silva) writes:

>That's a problem. You've got to come up with a case where copyright law
>was not invoked or was invoked and found wanting.

I wouldn't be surprised if it were difficult to find such an ideal
test case. First because the total number of patent cases is small
anyway, and second because what you suggest amounts to some patent
attorney intentionally holding one hand behind their back in court. 
Attorneys are likely to build the best possible argument by using all
the options open to them.  The practical aspects of the legal world
may make it difficult to get laboratory proof.  So, we must either
give up and agree to disagree, or be more open to suggestive but not
certain evidence.

> And it's got to be one
>of these "patent on the software" type situations, not something like the
>Hayes modem patent where it's tha application that's covered.

At this point, I personally wouldn't be able to make the counter
argument--because I don't believe that there are any pure "patents on
software" type situations you suggest.  That's part of the reason I
don't think that there is any evidence of danger from the current
system.

>Show me and I'll see.

Thanks for the opportunity, but I'll have to pass on such an
ill-defined objective. I've got a business to run.  I can't tell what
would constitute success in your eyes and don't want to waste my time
with things that wouldn't satisfy you. Indeed, I don't even know if
there is any criteria that would satisfy you and it may be pointless
to take the time and effor to do so.  (It may be like the idealist and
the realist arguing about wheter idea or substance is the base of the
universe--no clear test would satisfy both.)


>You know that's a bit of an ad-hominem attack, don't you. I'm quite willing
>to accept the vailidity of patents I don't like.

I apologize. That isn't what I was intending. But what I was saying
that a lot of ill-directed wandering in a field of ideas might not be
very productive for either of us or other readers.  A directed path
might be a good idea, but you'd have to define what that might be,
because I don't know what would be sufficient for you.

>Then why are you discussing this?

Because I think that there is a danger in people proposing policy when
there is insufficient or conflicting evidence to support their claims.
I've sometimes found myself on the opposite side with advocates who
hold that there are no problems either.   I think that the evidence is
very mixed and that it helps to know that.  First so we won't become
close-minded to counter-evidence, and second because if any policy
changes are to be implemented they really will have to be persuasive
to the people who can legislate them, and these people may have very
different views than most programmers.  I don't think there is a lot
of value in public policy talk if you don't really intend to change
things.

>You mean anti-software-patent advocates? We're the ones arguing that the
>status quo worked. The patent office only recently changed the status quo,
>without any review process, and based on a situation that was much narrower
>than the current interpretation holds.

I agree that the status quo before Diamond vs. Diehr worked. But I see
what the status quo was before Diamond vs. Diehr differently than you.
I see it as allowing algorithms, but requiring them to be tied to
physical implementations. In that respect the rubber curing patent
wasn't exceptional for containing software, but typical, perhaps only
being a bit more careless about describing the role of the computer in
a blatent way.  Since Diamond vs. Diehr, I don't think that
"mathematical algorighm" patents have been granted, but rather that
you could be more direct about the description of how the process was
implemented by a computer, rather than in a very indirect way.  In
this respect, I think the change is better because it may make many
more patents much more intelligable to the average programmer. 

In any case, the D vs. D case was ten years ago. The new "status quo"
has been in place since then for a long time.  Its only "new" to the
people who didn't pay any attention until the LPF started talking
about it. Certainly large companies like HP, IBM, AT&T knew about it a
long time ago. Since the size and economic value of the software field
has grown EVERY year since then, whatever the dangers are they are
slow in coming, even in comparison to the length of a patent. The
richest man in the U.S. Fortune survey was the founder of a SOFTWARE
firm (and one with few patents!) Will the dangers that have been so
long coming  really come so swiftly in the next decade?  It seems a
bit of a leap of faith to me.  Might be right, but could also be
another form of the approaching milleneum doomsaying. In general I'm
skeptical about that doom saying, it seems to be consistant I should
look at the anti-patent claims just as skeptically.

>> You may hold that disaster is a little farther off.
>
>I do hold that position. So far only the LZW patent and the RSA patent are
>known problems, because they're clearly patents on an algorithm regardless
>of application.

I'm not in agreement on your "regardless of application" statement,
but even if I were, for a couple of patents special case rules may be
better than overturning an existing system with untold effect.  If
the problem were much larger (and showing up in the bottom line of how
much the industry contributes to the average standard of living) it
might be a better case for the major overhaul suggested.  But we
haven't seen tha level of disruption yet.

>But the change in patent law as a result of DvD was not made on any such
>grounds. It's never been subject to legislative or any other review.

Part of the problem we have in discussing this is that we don't agree
on what the effect of DvsD was. Second, it has been subject to review.
The OTA paper cited here before is such a review (again with mixed
interpretations of the dangers posed by the current system). Third,
the reasoning for DvsD in the decision states that the court wanted to
maintain the status quo of granting process patents.  If felt that had
it not done so, process patents (which had been around since the
beginning) could be undermined. The real change in the post DvsD
status quo may really have been that software firms started applying
for patents.  This could have been due to the loosening of the
interpretation of what was a mathematical algorithm and what was a
process, but it could also be because there has been a maturation of
the software industry.  There are many more software firms since the
advent of the PC than before, and collectively they have more money.
There may just be more people out there now who would want to patent
applications of their software than before.

>Not the commercial viability, not yet, but promoting *commerce* isn't
>what the constitution talks about.

Again, I disagree.  The constitution says "to promote the
PROGRESS of science and useful arts." Emphasis mine. It is in Section
8 which also includes taxes, duties, imposts, excises, borrowing of
money, regulation of commerce, bankruptcy, money, weights and
measures, counterfeiting, post offices, etc.  You might note that a
great many of these other related subsections are concerned with
commerce. I don't think it is unreasonable to assume that by
"progress" they didn't mean just publishing ideas, but actual
reduction to practice and commercialization.  The patent law itself
teaches the importance of reduction to practice.  Court cases
FREQUENTLY appeal to concerns of commerce in determining their
decisions. I personally agree that little incentive is necessary to
get people to invent many clever ideas.  However, I do think that
substantial incentives are necessary if most of these are ever to
become available to the average everyday consumer or company.  Patents
may not be necessary for the former but may be for the latter.  In any
case the incentives that the congress allowed are pretty much oriented
to the world of commerce (you'll never make anything from a patent
that you don't license or distribute it--but then again society won't be
benefiting much from it either).


>Except I can distribute source to *my* code, and binaries for the libraries.
>Many copyrighted libraries come with runtime versions that explicitly allow
>this. When you can't tell what's OK to distribute or not you kill source
>distribution dead.

You can still distribute source.  Because YOU are a member. Other
members (even ones who don't contribute patents of their own and who
don't distribute software for gain) can use it without any fear of
infringement. Only someone who is not a member, and who redistributes the
source for a fee is at risk, and only if there is protected material
(inadvertently or intetionally) in the sources.

>Yes, GNU licensing when applied to anything but complete programs is a mess.

I suppose this won't be any better, but it won't be any worse either.

>Not at all. I'm starting from a position that the system was working, and see
>no reason to change it, either in favor of stricter restrictions (patent law)
>or supposedly looser ones (the GNU ideal).

I think  we are in agreement on this then.  We just disagree on what
the systems was that was working, when it changed, and whether that
had anything to do with DvsD or not. As a result, you see public
policy as necessary to return to an old state (that I think still
exists), while I see no steps necessary.

>I am NOT taking an anti-patent position, by the way. Please don't characterise
>me that way. I'm taking a position in opposition to a recent unreviewed change
>in patent law that radically changes what patents can cover.

I apologize again for mistaking your position. 

>> I was born into a world that had them. I
>> was born into a world that didn't used to make a distinction between
>> a step by step physical process recorded on a clipboard, and one
>> recorded in bits in a general purpose digital computer.
>
>How about one recorded in a mathematics textbook? How is LZW any more a
>physical process than Euler's method? 

LZW may be a mathematical algorithm.  But I don't agree that LZW is
patented. My interpretation of the claims is that use of LZW for data
media compression, or (possibly) for transmission (modems) is all that
is pattented.  That's an application to the real world.

> I was born in a world where neither
>of these were patentable. Now one of them is.

Again, I disagree.  I still think that neither is patentable and
neither is patented.  But an application of the mathematical algorithm
underlying LZW is patented.  There may also be applications of Euler's
method that were patented in some process patent. Dan Bernstein has
declared that he believes this application is not "essential", but I
disagree. As Dan has a personal stake in striking down a patent
involving a compression algorithm patent, perhaps we will get to see
if the courts agree with him.  Until then, I think there is room to
hold either opinion about what they will ultimately do.
-- 

Scott L. McGregor		mcgregor@netcom.com
President			tel: 408-985-1824
Prescient Software, Inc.	fax: 408-985-1936
3494 Yuba Avenue
San Jose, CA 95117-2967
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi,comp.unix.bsd