From: rlk@underprize.think.com (Robert Krawitz)
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Date: 2 Oct 92 10:30:42
Organization: Thinking Machines Corporation, Cambridge Mass., USA
Distribution: usa
	<RLK.92Oct1161235@underprize.think.com>
	<1992Oct1.231728.8419@netcom.com>
NNTP-Posting-Host: underprize.think.com
In-reply-to: mcgregor@netcom.com's message of Thu, 1 Oct 1992 23:17:28 GMT

I'm curious:  how much experience do you have actually writing software?
The reason that I ask this is because your arguments don't square very
well with programming practice as I'm familiar with it (I'm a software
engineer with 5 years experience and other assorted experience).

In article <1992Oct1.231728.8419@netcom.com> mcgregor@netcom.com (Scott Mcgregor) writes:

   In article <RLK.92Oct1161235@underprize.think.com> rlk@underprize.think.com (Robert Krawitz) writes:
   >No, it's not necessarily a subroutine:  the backing store patent can be
   >violated in a single line of code.  Whether I accept the subroutine
   >model isn't at issue -- what the patent holder accepts is.  BTW, a 100
   >line subroutine is fairly long in a language like C or Lisp.  And the
   >patent might be violated only by combinations of subroutines.

   This just argues that the total number of patents is even smaller than
   I was allowing.  That means less probability of an infringement, less
   need for checking, lower cost liability insurance, fewer royalties
   likely to need to be paid. If Krawitz is correct, it suggests that the
   actual risk and financial implication to most hobbyist software
   developers is likely to be low in practice, even if it could
   "theoretically" be much higher. I suspect Krawitz may well be correct.

No, that's not what I meant.  What I meant is that a patent might be
violated by a single subroutine OR by some combination of subroutines.
It's a matter of complexity, individual coding style, etc.

   Just one possible way by way of example: All software inventors who
   want to participate contribute their patents to a patent license
   circle. In exchange they agree to an proportional part of the earnings
   of the patent license circle.  People who contribute more patents will
   receive more, those who contribute fewer would receive less. It
   doesn't make a difference if that contributor is IBM or an individual
   at home with a Mac.  On the flip side, the patent circle would charge
   all patent users a fee.  How big a fee would depend on the size of the
   distribution of the products the seller has.  An individual using it
   for their own use would pay nothing.  A small company with sales in
   the 10s to 100s of units per month (or measure in $10K revenue/month
   if you like) would pay a nominal fee.  Microsoft, IBM, etc. would pay
   a substantial cost. Paying members of the circle would be exempt from
   patent prosecution for patents held by submitters to the circle,
   whether that use was intentional or accidental. On the other hand,
   people who don't pay the royalties due are liable to be sued by the
   circle on the behalf of the owner.  The circle would choose cases to
   prosecute to minimize the cost and maximize the potential gain--this
   probably means that defendants would most likely be large companies,
   not individuals, and more likely to be clear cases of infringement
   rather than marginal ones. 

How does this help the individual who doesn't have $10K revenue/month,
who just wants to write a program and GIVE it away?  How does this help
the Free Software Foundation, or anyone else who isn't interested in
maximizing revenue?  How does it measure the relative worth of a patent?
This still seems to help the big company that can afford to file
thousands of patents rather than the individual who can't even afford to
file a single patent (remember that filing patents is expensive).

BTW, $10K/mo. revenue isn't bad for an individual programmer -- that's
definitely more in the "smallish company" rather than "individual
practitioner" range.  I've known people who average closer to $2K/mo.

						In radio no one makes
   this choice even though it is theoretically possible.  It is not
   perfect, no human devised system is, but it might be good enough.

As I explained in my previous post, this analogy is poor.

   >Maybe not 1 million, but 10,000 to 50,000 isn't unreasonable for a lone
   >programmer writing a single program.  And lone programmers don't
   >necessarily worry about commercial quality (whatever that means, given
   >that GNU software is more reliable that most vendor software, anyway)
   >software, either, particularly if they aren't expecting to make lots of
   >money to it, or just want to sell it to a few friends, or put it on the
   >net as freeware.  There's a lot of cottage industry out there that
   >operates to different standards than what you seem to expect.  Forcing
   >everything in /pub on uunet to be checked for possible patent violations
   >will effectively shut down that industry.  Do you consider this
   >desirable?
   I don't think that we need incentives to encourage invention and
   sharing with friends, and I don't think that the patent system
   provides this nor interferes with this.  But I think that
   commercializing an invention, taking it from a few friends to millions
   of consumers is a difficult thing, requires much hard to raise capital
   and that is worth encouraging. The patent system may provide such
   incentive for commercialization.

You didn't answer my question.  Do you consider it desirable that
anonymous FTP of programs effectively be shut down?  Or do you have a
way to avoid that?
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