From: wingo@apple.com (Tony Wingo)
Newsgroups: sci.crypt
Subject: Re: Legal Stuff!
Date: 12 Jan 93 01:05:22 GMT
Followup-To: sci.crypt,alt.security.pgp,alt.security.ripem
Organization: Apple Computer

In article <1992Dec26.151556.28523@ulysses.att.com>, smb@research.att.com
(Steven Bellovin) wrote:
> 
> In article <BzvAs7.sI@mentor.cc.purdue.edu>, hrubin@mentor.cc.purdue.edu (Herman Rubin) writes:
> > RSA may seem miraculous to those who do not know mathematics, but not to
> > those who do; I suspect the Patent Office to be staffed by those in the
> > former class.  A BS in mathematics does not mean knowing much, if any,
> > non-computational mathematics, and certainly not the number theory and
> > knowledge of computational complexity needed to appreciate what has been
> > done by the promoters.  As a professor for a long time, I must question if
> > many are really "skilled in the art", as the patent laws put it.
> 
> I fail to see your point.  Are you claiming that RSA was obvious?
> I suggest you read
> 
> @article{Diffie88,
>    author = {Whitfield Diffie},
>    journal = {Proceedings of the IEEE},
>    month = {May},
>    number = {5},
>    pages = {560--577},
>    title = {The First Ten Years of Public Key Cryptography},
>    volume = {76},
>    year = {1988}
> }
> 
> Believe me, it wasn't obvious to a lot of smart *and* educated people.
> 
> Yes, RSA is eminently comprehensible now, almost obvious, one would say.
> Lots of brilliant inventions are obvious in retrospect.  So what?
> 
> To my way of thinking, RSA is about the best example there is of why
> ``software'' patents should be valid.  Apart from the technicality that
> it can be (and often is) implemented in hardware, we have something that's
> new (that factoring is difficult isn't new -- but a practical use is),
> useful (or we'd be discussing this in sci.math, not sci.crypt), and
> very definitely non-obvious.

My $0.02.  Over the last two decades, I've worked for a number of outfits
involved in patenting inventions (mostly mechanical, optical or
electronic), and as a consequence I have dealt with a number of inventors
and studied a number of patents.  One of the things I've learned is that
most inventions are "obvious" AFTER THE FACT. So when someone says "This
patent should be invalid, since the invention is obvious", my response
tends to be "If it was so obvious, why didn't you think of it?"

If it really was obvious, and you can document that you or someone else
used it or published a description of it prior to the inventor(s) listed on
the patent, you can have the patent invalidated on the grounds of prior
art.  If you can't produce such documentation, the assuption is that it
wasn't so obvious after all.

Two examples from my own experience:

1. One fellow sued a company I worked for, claiming that we were infringing
a patent of his.  We won when we showed that the mechanism involved had
been described in a textbook twenty years prior to his claimed invention.

2. The same company lost a patent when a competitor produced signed and
witnessed lab notebooks showing that they had been working on the same idea
on a specific date which was significantly prior to the dates we could
document.  (The moral here being: If you're doing anything which might be
patentable, keep signed, witnessed, up to date, clothbound lab notebooks.)

-tony

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