From: friedman@gnu.ai.mit.edu (Noah Friedman)
Newsgroups: comp.patents
Subject: Who should be on the defensive?  (was Re: The future of comp.patents)
Date: 17 Apr 92 01:32:51 GMT
	<4692@cluster.cs.su.oz.au>
Organization: Free Software Foundation, 675 Mass Ave. Cambridge, MA 02139

In article <4692@cluster.cs.su.oz.au> kim@Software.Mitel.COM (Kim Letkeman) writes:
>I don't think anyone in the computer world can legitimately complain
>about software prices, even in today's (alledgedly) software patent
>riddled world.  The people who seem to complain the most are those who
>apparently want software for free or those who want to give it away.

   Do you think those individuals are unworthy of attention just because
they are interested in socially-beneficial projects?  If anything, I think
the existence of free software is a good example of why software patents
are harmful.  

   Free software has a lot of advantages over proprietary programs.  It
promotes education in the programming field by making it easy (and usually
cheap) to get source code.  Derived software is just as likely to have
innovative concepts as that started from scratch.  It encourages people to
experiment and tinker, and possibly to share their results.  If someone
accomplishes more work in less time because of the availability of free
software (the FSF has received letters to this effect), then it has
promoted the general welfare, which, I hasten to remind you, is the prime
directive of patents and copyrights.

   If software patents cause free software to become unavailable then these
benefits go away.  Who ultimately benefits by this?  Software companies who
do this supposedly great thing of publishing their work, only to turn
around and tell you what you can and can not do with it.  Wonderful.  Not
only does that stifle a lot of potential innovation (by discouraging people
from freely working with the results and improving upon them) but it raises
the cost of development because of licensing fees.  In return, companies
which must license patented technology have to raise their revenue in some
other way to stay in business, possibly by raising the cost of their
software, but just as likely by acquiring patents themselves.  It's an
endless spiral that we could have avoided.  (Please don't respond by saying
that cross-licensing will solve all the patent ills.  They might for larger
companies, but smaller ones won't have enough patents to bargain with, and
it's unlikely that non-profit organizations writing free software will have
any at all.)

   I admit that those who want to write or use free software will be hurt
the most by software patents.  But they are not the only ones who will
suffer.  Even if there is no free software, patents still make trouble for
companies wishing to do further development on ideas that are already
patented.  Trade secrets at least allow someone else to independently
reimplement the technique if they can discover it.  From what I've seen
this has been largely successful.

   I'm not sure if any companies have actually been put out of business by
litigation over software patents yet (at least one, Paperback Software, was
put out of business by a suit over interface copyright infringement, which
poses similar obstacles for software developers).  It may simply be a
matter of time.  The FSF, for example, cannot afford even one lawsuit.
They could easily be put out of business because of a single patent
infringement.  Of course, the software patent field is fairly virgin.
There hasn't been enough time to see what will happen.

   On the other hand, we have plenty of hindsight about how the software
industry works without patents.  How many companies have gone out of
business because of other companies using similar techniques in their
programs (i.e. in terms of how the program internally runs, not what the
results are from the user's point of view)?  Not a single one.  Poor
management, lousy products or poor advertising, and high prices are what
have killed most companies -- not the out and out plagiarism of their work
(which is protected by copyrights anyway).  In many cases, patent cases
come up when one party sues another for use of an idea in an application
that has no competition with another (or in which the plaintiff markets no
products *at all*, such as CadTrak or Refac Technology Development
Corporation, which, despite its name, doesn't develop anything at all).
Basically, this is a useful money making technique, but it does not further
progress in the industry.

>>Since it is people who work in the trade (i.e. programmers) who complain
>>the most about the effect of patents in the computer industry, I consider
>>it a legitimate concern, since these people know their work and know
>>they'd rather spend time programming than going to court.  I think that
>>within this subset of the population, the percentage of people who are
>>concerned about this matter is substantially larger than you claim (alas,
>>I don't have any more exact numbers than you do).
>
>I think we would all have heard about it if programmers were spending
>time in court on patent challenges. It just isn't so. I have not heard
>of a single instance, although I'm sure there must be a few. But as a
>percentage of the programming population the number is I'm sure
>miniscule.

   But some of us *have* heard.  Isn't MIT being taken to court by AT&T
because of the backing store patent?  Hasn't CadTrak taken several
companies to court over the Xor patent?  Apparently Roger Billings is suing
Novell Inc. because the concept of file servers is patented (!).  There are
plenty more examples.

>Also, a patent stops nobody from "spending time programming".  Code
>anything you like. Just don't try cutting into someone else's market,
>either with free or with your own marketed software.

   This is like defending a repeal of the 1st amendment by saying "you're
still free to say anything you want, as long as you don't say anything I
tell you not to because it annoys me."

   You have not answered the question I've asked again and again of
software patent advocates: what justification is there for the introduction
of software patents to a field that was not suffering from the lack of
them?  There is no instrinsic "right" to protection of this sort, so it
should be the burden of patent advocates to justify them.  This whole
thread seems to be based on the assumption that it is anti-patent advocates
who must be on the defensive.