🚀 go-pugleaf

In <13466.Sep705.23.3191@kramden.acf.nyu.edu>
   brnstnd@kramden.acf.nyu.edu (Dan Bernstein) enters the discussion.



Ah, Dan is back!  I wondered when Dan would return from vacation!
Things have been *so* quiet!


>> In fact, "obviousness" is technical term in patent law and the
>> examination process.  Obviousness can be (and probably *must* be)
>> legally argued by examining various indications, such as:
>>    Unexpected Results,
>>    Previously Assumed Unworkability,
>>    Previously Unrecognized Problem,
>>    Omission of Element,
>>    Unappreciated Advantage,
>>    Long-Felt and Unsolved Need,
>>    Contrarian Invention,
>>    New Principle of Operation, etc.

Dan>Actually, ``obvious'' is not a term defined by the courts,

Gosh, Dan is such an expert.  I mean, you can certainly *rely* on an
authoritative statement from Dan.  Why, I virtually quake in submitting
a dissenting quotation from 35 U.S.C. 103:

   "A patent may not be obtained though the invention is not identically
   disclosed or described as set forth in section 102 of this title,
   if the differences between the subject matter sought to be patented
   and the prior art are such that the subject matter as a whole would
   have been --> OBVIOUS <-- at the time the invention was made to a
   person having ordinary skill in the art to which said subject matter
   pertains."  (emphasis mine)

This quote was included in the text of an office action I received from
the PTO last year.

"Obviousness" is the third of the three major legs of patent law, and is
INDEED defined and interpreted in case law and examination practice.

But I expect that Dan will somehow try to weasel out of this "little
misunderstanding," like usual.  The boundary between fact and fiction
fades when Dan wants to zing somebody.  I hope nobody risked anything
because of it.


Dan>and Zippy's
Dan>list of ``indications'' is complete and utter bullshit. However, it
Dan>might let us identify which ``Patents for Preschoolers, First Edition''
Dan>book Zippy has been quoting from. Anyone recognize the list?

These were headings for various obviousness arguments, as given in the
excellent book _Patent_it_Yourself_, by Patent Attorney David Pressman,
from Nolo Press, 950 Parker St, Berkeley, CA 94710; (800) 992-6656.



>> I seriously doubt that a whole program could be patented effectively;

Dan>I wonder if Zippy has ever heard of ``data compression.''

I wonder if Danny has ever *looked* at those patents.  Say, Danny, do
they happen to describe *an entire program*, or just the compression
technique itself?  Or did you just miss the words "a whole program?"

A patent claim delimits what is protected by a patent, and a product
is said to "infringe" a patent if everything in a claim is present
in the product.  Note that the product can have many additional things,
but if it has *at least* everything in one claim it does infringe.

But if *an entire program* were claimed, with all of its details and
features, it would be *easy* to get around that claim merely by
*subtracting* a feature from the program.  The program could then be
expanded in a different way without infringing that claim.

Thus--as I said--the most powerful patents are for simple mechanisms,
since there will be least chance of being able to subtract something
and so get around such a claim.  This will be the way that data
compression mechanisms are patented.

The thing is, Dan never seems to be at all embarrassed to simply mouth
off the first thing that comes to mind.  (If mind it be, of course.)



>> This was basically taken out of context.  A patent protects the
>> manufacture, sale (or free distribution), and use, of an invention.

>Now Zippy's rewriting United States law. Notice the parenthetical
>``or free distribution'' comment, which Zippy had to introduce to
>support his argument. As a matter of fact, distributing a patented
>invention for free is perfectly legal.

No *reasonable* person would have taken my statement for a direct quote.
But I do believe the parenthesized information is accurate.  Of course
I am not a patent lawyer, and in any case, we could all be surprised by
an actual court decision.

But in typical Danny fashion, Danny has left the impression that this
changes the overall picture.  Not true, for, *even if* free distribution
were acceptable, the product would still infringe in manufacture and use.

I find something irritating about someone who will deliberately try to
leave the impression that a (fairly casual) statement is false, when,
in fact, the general thrust is true, true, true.  I expect that Danny
simply could not pass up the chance for a quick zinger.

I just hope no one took Danny seriously and acted on it.



REPRISE

Having had some time to reflect on this issue, and having met the usual
viciousness displayed to anyone espousing an unpopular point of view,
I think I now understand part of the problem:

There is no law that now specifically says "software patents" can be
granted.  There is no law that allows the digital electronic devices
(which we computer types call "hardware") to be patented either.  There
is just the overall law for all types of patents.

Through the 60's and 70's the PTO would not grant "software patents."
The PTO thought that "software patents" were too close to "algorithms,"
which are specifically exempted from patent law.  Some applicants
thought this was unfair, and took the matter to court.

In 1972 a Supreme Court decision known as Gottschalk v Benson addressed
a patent application for an algorithm and mechanism to convert BCD to
binary, and ruled that the patent would not issue.  As usual, the
decision was fairly clear *for that case*, but not all that clear
for other cases.

During the 70's, the appellate courts received other appeals, and
issued various rulings, trying to find an overall continuity in the
new situation.

Finally, in Diamond v. Diehr, the Supreme Court did find in favor of
a patent which included software.  This required the PTO to try and
implement that specific ruling, as well as the body of appellate
rulings from various other cases.

Thus, the way things are now is a direct result of an attempt by the
courts to find a consistent and fair interpretation of the law.  If
there is to be any relief for "software patents," it will be necessary
to specifically modify the law for the specific case of a "software
patent."  Thus, it is necessary to define just what a "software
patent" is, in order to give it special handling.  It is not clear
that this is even possible.

In fact, the closer one looks, the harder it is to define a difference
even between hardware and software.  [ Personally, I believe the reason
for this is that, when "software" is executing, software *is* hardware.
Thus, there *is* no difference. ]  But take a look:

   Does "software" function only on a IC "chip," or would a
   random-logic computer run software?  Naturally we take the second
   case, but then how can we tell the difference between a computer
   running software and any other logic machine?  If we can't, would
   all hardware digital logic devices lose patent protection?

   Is machine code in ROM "software"?  If so, then are all digital
   hardware devices which use ROM using "software" (and would they
   thus lose patent protection)?

   Is machine code in RAM "software"?  If so, then <as above>.  In
   addition, it would be possible to get around a <ROM = hardware>
   philosophy, simply by copying ROM to RAM.  (This is actually
   done now in most 386 machines.)

   Is machine code in random logic "software"?  If so, then, assuming
   an infinity of possible software instruction sets, how could any
   digital logic hardware device retain patent protection?

   And so on.

So, to what extent would trying to change the situation for "software
patents" create unfairness or inconsistency for the hardware guys, or
problems in other ways?  Until someone can start to define, SPECIFICALLY,
what a "software patent" would be, we cannot begin to understand the
overall ramifications of such a change.


SUMMARY

   We are where we are because the courts were attempting to be fair
and consistent.  We cannot simply go back, because the courts now realize
that the way it was really was unfair and inconsistent.


The best single discussion I have seen on all this (if somewhat biased
against "software patents") is:

    Samuelson, P.  1990.  Should Program Algorithms be Patented.
    Communications of the ACM.  33 (8): 23-27.


 ---
 Terry Ritter   cs.utexas.edu!cactus.org!ritter   (512) 892-0494