Article View: gnu.misc.discuss
Article #73503Re: Patents
From: Terry Ritter
Date: Mon, 02 Sep 1991 08:29
Date: Mon, 02 Sep 1991 08:29
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10983 bytes
In article <BURLEY.91Sep1202411@churchy.gnu.ai.mit.edu> burley@churchy.gnu.ai.mit.edu (Craig Burley) says: > In fact the defense of patents that goes "I believe in protecting >intellectual property" really is a defense of the abolishment of all >patents. The patent system serves to RESTRICT intellectual property. Nah. The patent system serves to provide free market ECONOMIC SUPPORT for the development and publication of new inventions. The usefulness of this idea may not be apparent if you have been living in the Soviet Union, Eastern Europe, or have never had to make research pay for itself. >In case it isn't clear how this is the case, I'll offer an analogy. You >decide to build a house, sit down and design it, order the materials, and >build it. It is your property, of course. Then one day, a year or so after >you've lived in it, somebody comes along and says you have to pay them >$50,000 per year to continue living in the house or else destroy it and build >another, different house (or at least change it significantly), and even >then you still owe them $50K for the first year you lived in it. >The reasoning? They happened to have designed and built a similar house >one month before you did, and filed the design with the "Bureau of >Housing Property". Not quite. They must have designed a built a house with TOTALLY NEW features. They described the features formally, so that anyone in the building field could reproduce them. They formally argued that each feature was new, never before formally described. A skeptical examiner finally allowed some of the claims, after eliminating some, and downgrading others. The full, open description of the inventions became available to anyone with $1.50 at the time the patent took effect. Lets have another analogy: As a home builder, you decide to benefit society by building a totally new kind of house, unlike any ever built before. (We know beforehand that the house will not sell unless SOMEONE considers it a specific benefit.) You invest time, effort, and money creating and testing new features, wholly new systems unlike any seen before. Some of these work out, some don't, and some require more development. Eventually, you work them out, and so build a house and sell it. Then you find that any turkey that has access to that house can compete with you, even though they spent neither time nor effort in development. Question: Will you continue to do development? Do we, as a society, wish to discourage new development? Would we, as a society, prefer that every truly innovative house be sold under a non-disclosure agreement? Patents are NOT about AN INDIVIDUAL building something for his or her own use. Although patents do APPLY to individuals, they are almost never APPLIED to individuals. Patents are ECONOMIC tools to recover R&D expenses, or to force the rewards to a particular company who did, supported, or bought the R&D results. Patents are about manufacturing, sales, and distribution, NOT individual use. Patents are also NOT about fairness. Law itself is not necessarily fair; innocent people do get convicted. But if we are to throw out Law, we must accept the results; we accept an imperfect society under law for the lack of anything better. If we throw out patents, we must accept that there will be consequences due to the changed economic environment. Without patents, many inventions simply will not be applied in practice, because there will be no way to prevent a large company from snapping up the idea and using their superior resources to dominate the market. As an engineer, I have actually heard this argument voiced a number of times as a reason to drop a particular line of development. Patents ARE about a deal with society: a limited-term monopoly in return for full public disclosure. 17 years may seem long when you are 20; but you will go through 4 or 5 of those periods serially in your life. It simply takes time to develop a market and business around a really new invention. Patents are one way that a free market economy encourages expensive development. Alternately, we could have the Government and/or Universities do our research and development . . . . >Every software patent I've heard of or, so far, can conceive >of, is inherently published when its program is published. Wrong, wrong, wrong. In this case, "publication" is a technical term under law, and implies FULL OPEN DISCLOSURE of the invention. The vast majority of software is published as OBJECT CODE ONLY; execution of that code does NOT disclose anything about how it WORKS, but only what it DOES. What something DOES is NOT a disclosure of HOW TO DO IT. It is this full open disclosure of HOW TO DO IT which is "publication" under patent law. Sure, you might get something out of a disassembly; but this is still not FULL OPEN DISCLOSURE. Moreover, one might assume that you think that normal software publication (that is, trade secret publication) is better for society than software patents. But the patented sections of software are always fully disclosed, may be studied, and may provide insight; some additional work may lead to other new, unpatented and useful techniques. In contrast, trade secret publication does not inform anyone except those who happen to work in the corporation where it was designed, and any inventions in it will die when the software does (and almost ALL software eventually dies). This hardly seems in the interest of society. >If someone hands me unrefined oil and says "refine it", all >the genius in the world won't allow me simply to speak, write, or otherwise >communicate refined oil as output. Similarly, being handed a bunch of >chemicals won't allow me to make aspirin, and so on. Instead, while I must >use intellectual processes, I would have to resort to mechanical techniques >to accomplish the job. Thus, it is not a software patent. >However, if someone shows me a listing of C code and says "compile it", I >might well be able to write down the output of that code as, say, 68K or >i486 assembler, and in the process use, in effect, many currently patented >techniques, such as IBM's register coloring algorithm, that I may have made >up myself. Note that just because I use a mechanical technique -- pencil on >paper -- does not invalidate the premise, because the paper-scratching is >NOT the true output of the process, nor is the original listing of C code >the true input -- the listing _represents_ the input, as does my output, >whether these are in verbal, visual, or other form (braille, for example). Translation from one language to another is NOT what software patents are about; simply COMPILING patented code is NOT a violation of a patent described in that code. It is the RUNNING of the compiled code, the actual action of "refining information," which a patent protects. Of course, RUNNING "your" compiler code, if parts of it are patented by others, COULD be a violation, but, again, patents are NOT ABOUT individual use; patents are about manufacturing, sales, and distribution. In this case, patents are about controlling the sales of a compiler which uses a patented technique, and all you have to do to be able to sell your compiler is to use a different, perhaps better, technique. Patents thus encourage you to improve upon the state of the art. To the extent that this is difficult, you must also acknowledge the importance to society of having the technique fully and openly disclosed for the next generation. As for the mental process of performing software functions, surely this is grasping at straws. The very fact that programming is difficult is an indication of how well our bio-minds follow instructions; the improvement is in building machines (and instructions to machines) which ACTUALLY follow instructions. Moreover, virtually any electronic device which produces information could be reduced to Boolean instructions which, in principle, could be performed mentally. This certainly includes computer CPU's themselves. Are computer CPU's NOT patentable hardware because a human could, IN PRINCIPLE (at a ten-millionth the speed and an error rate billions of times higher), perform "the same" operations? I think most people would say that a dividing line has been crossed here. >In summary, we should go back to the 1981-and-earlier standards for >patentability, and abolish software patents retroactively. Processes that >include software may still be patented, but use of the software (equations) >that is in the patent should not, by itself, ever constitute infringement. >(In other words, still permit patenting an overall process that happens >to involve a computer and a running, specialized program, but don't >prevent anyone else from using the special algorithms in that program when >they write their own. I doubt that there can ever be a consistent legal definition which would separate "software" from "hardware." "Software" is just the term we use to describe the practice of forming the instructions TO BE USED BY HARDWARE. Without hardware, software ALREADY does not infringe patents; patents are about the USE of software TO PERFORM HARDWARE ACTIONS. It is these actions which are patented. Preventing the application of patents to software would imply that anyone who wished to get around a patent on (for example) a new chip (hardware) could try to reproduce the design in software (i.e., MICROCODE, in a fast single-chip processor) and thus avoid the hardware patent. In this way, eliminating software patents must inherently damage protection for hardware logic designs (including computer hardware). Such protection has been a basis for the development of the computer industry, and elimination of such protection could have extremely serious consequences far beyond you not being able to use your favorite technique in your compiler. I discussed a number of these issues in my article "The Politics of Software Patents" in the May-June 1991 issue of Midnight Engineering. --- Terry Ritter cs.utexas.edu!cactus.org!ritter (512) 892-0494
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X-Google-Language: ENGLISH,ASCII-7-bit X-Google-Thread: 1025b4,9434f7b17f215464 X-Google-Attributes: gid1025b4,public X-Google-ArrivalTime: 1991-09-02 04:23:17 PST Path: arc1-ca.pugleaf.net!gmdzi!unido!fauern!iraun1.ira.uka.de!yale.edu!qt.cs.utexas.edu!zaphod.mps.ohio-state.edu!swrinde!cs.utexas.edu!milano!cactus.org!ritter From: ritter@cactus.org (Terry Ritter) Newsgroups: gnu.misc.discuss Subject: Re: Patents Message-ID: <9209@cactus.org> Date: 2 Sep 91 08:29:14 GMT References: <1991Aug26.210003.29553@sq.sq.com> <1991Aug31.184217.20959@aber.ac.uk> <BURLEY.91Sep1202411@churchy.gnu.ai.mit.edu> Organization: Capital Area Central Texas Unix Society, Austin, TX Lines: 180