From: mcgregor@netcom.com (Scott Mcgregor)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Sun, 11 Oct 1992 04:33:58 GMT

In article <11738.Oct1103.23.3892@virtualnews.nyu.edu> brnstnd@nyu.edu (D. J. Bernstein) writes:
>In article <1992Oct6.071314.16966@netcom.com> mcgregor@netcom.com (Scott Mcgregor) writes:
>> In any case, I am not trying to PROVE software patents are good.
>
>The LPF has many arguments against software patents---legal arguments,
>economic arguments, moral arguments, and quite a few examples of
>software patents which have hurt both society and individuals. 
Yes the LPF has many arguments.  It is the opinion of the LPF that these
have hurts society. It is the opinion of the LPF that there are no
beneficial software patents.

I too have many many arguments. It is my opinion that the harms that
the LPF claims are not at all clearly harmful to society even if they
have harmed individuals. Moreover, even conceding individual harms
from individual patents against individual people, it is my opinion
that there is little evidence that overall we aren't benefitted by
patents,  and the LPF advocates eliminating all software patents even
if only a few are demonstrably harmful and the mass might be
beneficial.

That the LPF has arguments and opinions doesn't make them fact. That I
too have arguments and opinions doesn't make them fact either. I am
quite aware that this slices both ways.

> You are unable to exhibit a single beneficial software patent.

I've attempted to give plausable examples. I've done so in the
positive and in the negative. I've attempted to address both the
individual cases (such as the Xanadu case) and general cases (raising
capital in the abstract).  I see that Dan has  not been persuaded by
them. I can accept that.  But I haven't been persuaded by Bernstein's
examples either.   That's all I claimed, not proof that patents are
good or bad, but just that there is reason to doubt the LPF claims,
and reasonable cases to be made for the economic value of patents.  In
my mind things are much more grey than black and white, so I don't
agree with either extreme positionan and won't argue to prove an
extreme postion wrong. I'll only argue to prove an extreme position
extreme, and that things are perhaps less clear and more open to
multiple interpretations.

> Your only excuse
>is that you aren't ``trying to PROVE software patents are good.'' Yet
>you aren't admitting that software patents are bad.

Yes, because I don't believe that they are uniformly bad nor that Dan
has proved that.  Nor has he "admitted" that software patents can do
some good, probably because he isn't convinced by my
counter-arguments. Sometimes that is how it is--unsettled, you can't
convince everyone.  That may be how it will like with legislators
unless they all see things from Dan's perspective, and I don't think
that there is enough evidence that they do yet.

>The effects of software patents are the combined effects of each
>individual software patent. How can you believe that software patents
>might possibly be good if you can't come up with any examples where
>they've helped? How do you expect to convince anyone else?

I've given the examples that I think may suggest how they help
(primarily in the raising of capital, and in the resulting mass
availability). My goal is to raise the question of whether that mass
availability to non-inventors and the economic vitality of the
industry would exist if investors felt that there was insufficient
protection of the intellectual property they invest in. And whether
that is benefit enough for society.  Dan doesn't think so, but I'm not
sure that others might think that is sufficient value. In any case,
unlike Dan, I'm not trying to convince but to raise a skeptical eye
and ask whether there might not be reasonable positions that might
reach different conclusions. Of course, your answer to that may depend
on your prejudices and personal values, which are hard to have a
useful discussion about.

>You shouldn't have to speculate about the facts. There was one algorithm
>patent granted as early as 1968 (to Goetz)...
>The software industry was already thriving by 1968, when the first
>algorithm patent appeared, and was booming by 1980, when the USPTO made
>some unwarranted changes in its policies. One might argue when algorithm
>patents were first ``possible'';

I will accept Dan's claims that algorithm patents go back to 1968
(does he mean "mathematical algorithm" a distinction he raised
recently in another post?  We'll assume he does). To me this just
gives further evidence to the claim that things didn't really
change recently.  So there should have been even more time to see the
dangers.  Yet every year the contribution of the software industry has
grown dramatically (in terms of contribution to GNP, a societal
benefit measure) --this is counter-evidence to the claim that software
patents are hurting the industry and society. It's not causal proof,
but it hasn't been proven coincidental either. Now some anti-patent
advocated claimed that this was because it was just too soon to tell.
I've argued that 12 years is a long time to tell especially for
something that only has a 17 year duration, max. Now Dan wants us to
turn back the clock further. FIne, that's even more years of counter
evidence that the sky isn't falling.

> keep in mind that the USPTO has
>admitted to granting some algorithm patents which were invalid on their
>face.

People make mistakes.  Legal systems have to deal with people. So they
have means of appeal etc. The LPF proposal would avoid dealing with
mistakes by throwing out the whole lot.  But if there is potential
benefit from the whole (something I think might be the case but Dan
does not) then you could be throwing out the baby with the bath water.

>> I don't believe that patents on algorithms per se are granted or
>> upheld.
>
>You shouldn't have to speculate about the facts. The LZW patent is at
>ftp.uu.net:doc/lzw-patent.Z. Claim 1 appears below. Do you mean to say
>that this is not a mental process patent, simply because it talks about
>a ``storage means''? 

Also signals.
Can you come up with any example of the LZW
>algorithm _per se_ which does not infringe upon the claim below?
Sure, one that isn't used for data compression and data decompression.
Use the same algorithms for such another purpose and you aren't
covered. You can't accidentally invent LZW to do signal procesing or
image enhancement or something else we can't even imagine and be
prevented by this patent. And if you do it in your head without signal
means or without storing the results on paper you have a clear
defense, because these are explictly mentioned, and not in your mental
process.

-- 

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



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