🚀 go-pugleaf

brnstnd@kramden.acf.nyu.edu (Dan Bernstein), who is correct in conclusion
but incorrect in detail, says:
> By the way, the 1981 decision that software patenters keep gibbering
> about didn't say that software patents were valid.

This is Diamond v. Diehr, decided on March 3, 1981 by the United States
Supreme Court.  I quote from the Opinion of the Court, page 191:
	We view respondents' claims as nothing more than a process for
	molding rubber products and not as an attempt to patent a
	mathematical formula. 

Here "mathematical formula" = "computer program" = "algorithm"

> What happened was
> that company A used a computer in one part of an innovative method for
> doing process X. Now it has been established that using a computer to
> perform an algorithm doesn't make the algorithm patentable.

Nothing had been established then, of course (and I'm not convinced that
this has been firmly established even now, though it should be), but this
case was supposed to decide a separate issue.  Diehr wasn't claiming a
patent on the Arrhenius equation, and the court emphasized that had it
thought he was trying to do so, it would have thrown the patent out.  From
page 185:
	We defined "algorithm" as a "procedure for solving a given type of
	mathematical problem," and we concluded that such an algorithm, or
	mathematical formula, is like a law of nature, which cannot be the
	subject of a patent.

> Company B
> took the opportunity to challenge A's patent, saying that the use of a
> computer rendered the entire process unpatentable.

Actually, "Company B" is Commissioner of Patents and Trademarks Diamond,
who was supporting the judgement of a patent examiner (who'd rejected the
patent) and of the Patent and Trademark Office Board of Appeals, which had
been overturned by the Court of Customs and Patent Appeals.

> This is, of course,
> backwards: using a computer doesn't give you a patent, but it doesn't
> take away a patent either. And that's all the court said.

This is absolutely correct.

The case has been widely misunderstood, of course, and the result has been
an about-face in the attitude of the Patent Office, which has fallen over
itself in its eagerness to grant patents, even on algorithms.  It has no
idea of how many such patents it has granted.

Twenty more years of expensive lawsuits is the wrong way to decide this
issue.  Computer professionals need to air the issues and then make their
opinions known.  Then perhaps we can propose thoughtful legislation which
protects intellectual property without strangling the industry via
overprotection.  What the law currently says shouldn't matter to us in the
debate over what it should say.  Rather, we should be acting to change
those laws which are inadequate.  At present this includes both the
copyright and patent statues, at least as they're being interpreted by the
courts.
					-Michael Ernst
					 mernst@theory.lcs.mit.edu