🚀 go-pugleaf

Some thoughts on how to use this new wording to help kill software patents.

>>>>> On Sun, 8 Mar 1992, mycroft@hal.gnu.ai.mit.edu (Charles Hannum) said:

rms> 	         DRAFT FINAL ACT EMBODYING THE RESULTS OF THE
rms> URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS

rms> dated 20 December 1991, Part II of the

rms>       AGREEMENT ON TRADE-RELATED ASPECTS ON INTELLECTUAL PROPERTY
rms> RIGHTS, 	 INCLUDING TRADE IN COUNTERFEIT GOODS (Annex III)]

rms> [We have included everything that deals with what kinds of things
rms> can be oatented, and what kind of monopoly the patent creates.]

rms> 			    SECTION 5: PATENTS

rms> 	       Article 34: Process Patents: Burden of Proof

rms> 1.  For the purposes of civil proceedings in respect of the
rms> infringement of the rights of the owner referred to in Article
rms> 28.1(b), if the subject matter of a patent is a process for
rms> obtaining a product, the judicial authorities shall have the
rms> authority to order the defendant to prove that the process to
rms> obtain an identical product is different from the patented
rms> process.  Therefore, PARTIES shall provide, in at least one of
rms> the following circumstances, that any identical product when
rms> produced without the consent of the patent owner shall, in the
rms> absence of proof to the contrary, be deemed to have been obtained
rms> by the patented process:

rms>      (a) if the product obtained by the patented process is new;

rms>      (b) if there is a substantial likelihood that the identical
rms> product 	 was made by the process and the owner of the patent
rms> has been 	 unable through reasonable efforts to determine the
rms> process 	 actually used.

rms> [In other words, the game is stacked against the defendant.]

(1/2 serious. Skipping down a para. to the serious bits is allowed ;)
Hmmm... Couldn't it be argued that unless the instructions generated
by whatever compiler you use, are the same as the patented process,
then it's a different process. The idea is that the "product" is
whatever the code does, but the "method" is the machine instructions,
so for instance, even the same C code could be said to be using two
different "methods" when optimizing, or not optimizing. This would
render software patents virtually unusable (There could even be a
-fanti-patent option to GCC which would throw in random bits of fluf
to "change" the "method" while not changing the "product"). This would
make copyrights on the original code MUCH more valuable to companies
than patents.

Now all we need is a precedent ;)

Of course the above can be shot down fairly simply, and is half-humor,
but the general idea, IMHO, is sound. We need to find a way to narrow
the focus of the definition of the word "method". That will make
patents much less valuable than copyrights, and put things back on the
same uneven playing field that they were on before.

Personally, I think that a very simple line should be added to the
treaty that would solve evrything: "A patent may not be granted for a
copyrighted work, and a copyright may not be placed on an
implimentation of a patented process." Would this do it? I think so.
And it makes sense. You would never be able to get a patent on a book,
or a copyright on an engine. The concepts do not mix. So why should
software be able to fence-sit? The designer should chose what s/he
wants. Does s/he want to protect the process or the implimentation. I
think that in general the answer will be implimentation. Then again
there's those damn licences...

All in all, I think it's time to start massing LOTS of contributions
($$$) and submitting patents for EVRYTHING UNDER THE SUN. Every
company that can afford to will start doing so very soon, so we need
to get as many patented processes under the GPL as possible while we
still can. I also liked the idea of creating a library of "published"
works for purposes of claiming "prior-art".



			-AJS


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The views expressed here may not be the views of I-Kinetics, Fidelity
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Ob-patentable process:

Wake up.
Stagger into bathroom.
Shower.

($1000, please ;)

(WHAT! It's a process! What do you mean "prior-art"?! ;)