🚀 go-pugleaf

In <BURLEY.91Sep2162405@churchy.gnu.ai.mit.edu>
    burley@churchy.gnu.ai.mit.edu (Craig Burley) responds:

>I've never heard of anyone discovering a new
>approach to something (inventing one) by first reading a software
>patent and saying "aha, then if I add <x> to it...Eureka!" and I
>doubt I ever will.

In one sentence you assume that:

   a) we know what a "software patent" is,
   b) never having heard of an experience means that it never 
      occurred and never will,
   c) that the relatively small patent literature on anything you
      might call a "software" patent can be compared to the massive
      conventional literature.

Do you find these debating tricks useful to confuse and defeat? 
Alas, I had presumed that you would seriously address THE ISSUE.

First of all, very few patents are strictly "software patents." 
Many of what are commonly called "software" patents cover BOTH
hardware AND software implementations.

Next, with very few "software patents" issued, it is hardly
surprising that you have not heard of the utility of building upon
them.

And if software designers rarely use the patent literature
(as seems likely), it is also no surprise that few developments
have been based on that literature.

If, however, your point is that there need be no patent literature
because you think you already have access to everything in other
journals, despite the fact that you are not acquainted with the
patent literature, well . . . WHAT IS WRONG WITH THIS PICTURE?


>the huge cost
>involved in turning software creation into 1% development, 40%
>search for what is patentable in the development, and 59% search
>of existing patents to avoid them far outway (sic) any occasional
>positive result from patenting software

What is your source?  Where do you GET these figures?  If you just
make up things as you go, we will have very little to discuss.


>it is becoming increasingly likely that optimizing
>compiler technology will be capable of violating/inventing a
>patent given a fairly ordinary description of a problem (I already
>know how to build such a system, but I can't describe it and must
>keep it secret until software patents are abolished; in the
>meantime, if I manage to build it, at least I can use it myself
>and probably make a small fortune off of it).

First, enough hysterics:  You CAN build ANY software system FOR
YOURSELF, and use it BY YOURSELF, with little economic risk. 
Patents are ECONOMIC rights, and they are really only effective to
prevent you from seriously manufacturing, selling, or distributing
a patented invention.

Next, if you mean by "software patents," all patents which apply to
any mechanism realized in software, such patents are quite unlikely
to be "abolished," because this would significantly impact the
current protection for HARDWARE logic mechanisms.  You will have
a long wait.

But if you have a software idea worth "a small fortune," then why
not:

   a) patent it yourself,

      This would give you the ability to describe it in open print
      and yet still allow you to license or use the technique for the
      benefit of society, instead of keeping it secret and away from
      society, as you seem to think you must do now.  You could even
      GIVE AWAY the patent, once you have it.


   b) describe it in open print

      This would constitute full open disclosure, and thus "prior
      art," preventing anyone else from applying for the patent
      subsequently (you would have a year to decide).


Option (b) would seem to provide all the features you hope for in
a world WITHOUT software patents.  Moreover, YOU can do this, RIGHT
NOW, with virtually NO investment.  One is led to wonder why you
do not do this.

The WHOLE POINT of patents is to ALLOW people to DESCRIBE their
otherwise secret ideas so that they can be protected.  And if you
DO NOT WANT that protection, ALL you have to do is publish.


>Right now I know of a personal-computer-based page-layout program
>whose internal file format violates a software patent.  Who is
>responsible for this violation if the coders simply used one OO
>library that provided a

The courts will help you decide, if you are unable to do so.

Respecting intellectual property rights is a hassle, and WILL
ALWAYS BE a hassle.  Shall we simply "say yes to piracy?"
(I believe that the unlicensed use of intellectual property is
commonly called piracy.)


>Why should you be denied use of
>your own property?  Remember I do support the idea of patents in
>general, which can and do prevent you from, say, selling the plans
>to your house even though it's your own design because somebody
>else patented it first.

Again, more hysterics.  If YOU implement ANY software technique,
and USE it FOR YOURSELF, the ONLY risk is YOU (shooting your mouth
off, which--admittedly--could be a risk).  Within criminal law, this
is known as "self incrimination."  You don't have to do this.  Don't.

However, if you mean that you should be able to MANUFACTURE copies
of that work, well, the answer is that the design is NOT YOUR
PROPERTY when someone else has taken the trouble to register the
invention and make it public.

It is IMPORTANT to recognize what is happening here.  YOU wish the
RIGHT to keep an invention SECRET, AWAY FROM SOCIETY; someone else
makes it PUBLIC in a patent application.

EVEN IF you do not believe in software patents, YOU CAN STILL PUBLISH
YOUR IDEAS.  You can do that NOW, WITHOUT changes in the law.  And,
if you do, then anyone coming after you cannot get a patent and cannot
restrict your ability to use that work.  The fact that you do not do that
shows that you have a different agenda.


>Anyway, patents are NOT economic tools to recover R&D
>expenses, or at least not primarily so; patents are tools to
>encourage publication of the fruits of R&D expenses.  Please keep
>this important difference in mind.

What do you do, just make this stuff up as you go along?  The obvious
POINT of a monopoly is to recover economic value.  That is WHY a
patent is a limited monopoly.


>There are far better mechanisms for encouraging R&D
>itself -- look at Japan and at various U.S. government programs
>that do this.  Some of them even insist that the resulting
>techniques be placed in the public domain (i.e. not patented or
>copyrighted) or assigned to the government!

Ah, yes.  Consider cryptography, for example:  That research is
secret.  WE THE PEOPLE pay for it, but WE do not get access to it. 
I think we can afford to forego a great deal of such successful
government research, thank you.

I WOULD like to see the research environment improve--we could
sure use it!  In my opinion it would be helpful to concentrate on
the applied results TO THE PEOPLE of any such research.  If
research had to show results IN THE MARKETPLACE, research centers
would be far different than they are today.

Showing results IN THE MARKETPLACE is another thing that patents
are about.  Patents generally do not return money to the inventor
until they are ACTUALLY APPLIED in a product, manufactured, and
then SOLD to someone who thinks the product is a good deal.


>Innocent people getting convicted is something the law bends over
>backwards to avoid in a case where there is a .001% chance that a
>particular fellow is not a serial killer and is thereby released
>on what is commonly called a technicality.

It must be particularly CONVENIENT for you to be able to just MAKE
THESE THINGS UP.  Where do you get these figures?  What is your
reliable source?  I suspect the real value is FAR higher, but I
don't have your sources . . . .


>If we are so willing to avoid unjust conviction in a
>heinous case, why do you suggest it is ok for someone to be
>convicted or otherwise taken for all the money he or she has
>simply because they wrote and distributed compress or X?

Well, that depends upon whether they have been properly warned that
they are making use of intellectual property which does not belong
to them.  If so, and they continue, then I guess they made their
own decision, and they should be willing to back it up in court.


>Fine, but with software, I come up with 20 new patentable ideas
>for every 3 hours of typical programming, based on what the PTO
>has been awarding as patents.

Wo, SPACE CITY!  Again, if you have no idea, JUST MAKE SOMETHING
UP!  I guess you reserve the right to just make up whatever values
you want, as long as they benefit your argument.  Not good form.

I would like to see YOU, or ANYONE, actually come up with, and
SUCCEED IN PATENTING 20 ideas from 3 hours work.

You must have a pretty good opinion of yourself to imagine that
NOBODY else has either OPENLY DESCRIBED or FILED FOR PATENT on any
trivial little thing that you come up with.  Others may not share
that opinion, however.  Obtaining even ONE patent may be just a
bit trickier than you think . . . .


>In any instance where it can be shown that a patented-style
>publication is more informative and useful and build-upon-able
>( :-) than releasing the source code or even the executable image
>and using a disassembler, I'll agree that, in that instance,
>patentability might well be preferable.

A patent is a CONTRACT, a DEAL between inventor and society.  If
the SOLE aim of a patent were to benefit society, then there would
be no monopoly awarded.

Alas, such an approach ignores human nature.  If there were no
reward for disclosure, then only trivial items would be disclosed. 
It is one of the little ironies of market economics that deals
which are not profitable for BOTH sides simply do not happen.

Since your background is in "freeware," it is NO WONDER that you
think all new ideas are trivial!  Economically speaking, that is
what we would expect.


>I really get the impression you're not a computer programmer, or
>at least not a serious (or efficient) one.  I can hardly keep up
>with the tiny

Well, having decimated my argument (HA!), now you wish to demean
ME.

This used to be called an "ad hominem" attack, and is one of the
fallacies of irrelevance.  It nicely demonstrates your competence
to argue, as well as your disposition to do so fairly.  Real nice
work.


>If you compare the lifetimes of various popular products in
>various different fields, I think you'll find that software dies
>so fast, it isn't worth worrying about patents for it.

This is an argument FOR patents.  Society has an interest in
PROTECTING inventions so that they may (eventually) be re-used by
all of society.  Simply RECOGNIZING such an invention, so that it
may be catalogued for the future, may be an important event.

Note that it is NOT true that all inventions last 17 years; if an
inventor fails to pay the "Maintenance Fees" (as might happen if
the company goes out of business), the patent could lapse after
only 4 years.


>And, in any case, the whole point is that
>it is nearly impossible to succeed at keeping any released
>software's internal design secret, unless it is perceived as
>generally useless and therefore not worth disassembling.

This is ANOTHER argument FOR patents, for if an invention CANNOT be
protected, it may not even be applied.


>If I knew less about computers than I
>do,

I guess you must be a real EXPERT!  Gee, how can anyone hope to
oppose the opinion you have of you?

Yet another instance of irrelevance.


>and thought indeed important secrets behind a popular program
>could be lost forever, I'd agree that patents were important to
>ensure publication, but that's not the case.  In fact it amazes me
>how often totally useless or rarely sold software programs that
>attempt to keep their internals secret via various techniques
>(zapping debugger registers, copy protection, et cetera) are
>nevertheless hacked at by intrepid types who just want to
>know how they work -- and effectively published.  This happens
>with games and such, and often they're more compdgx than "real"
>application programs!

The issue is NOT whether a few "intrepid types" know what is going
on, the issue is whether new ideas are WIDELY PUBLISHED and MADE
AVAILABLE to PROFESSORS and NEW GENERATIONS OF PROGRAMMER.  After
the program dies, it hardly can be said to be available to
analyze . . . .

Frankly, I think you enjoy the POWER of being SOMEONE WHO KNOWS,
and, consequently, see no problem in keeping that knowledge SECRET
from your "lessers."

On the other hand, I am for OPEN PUBLICATION and KNOWLEDGE, with
restrictions only on ACTUAL PRODUCTION USE of that knowledge. 

Which of these attitudes do you think is more true to the goals of
education?


>And as I suggest, I cannot risk publicizing my ideas for much
>better optimization and management of software programming because
>it is very likely they will violate 100s of trivial patents even
>if I tried to patent my

And I suggest that the REAL reason that you do not PUBLISH your
ideas is that you want to keep FULL CONTROL over them.  PUBLICATION
OF YOUR IDEAS DOES NOT--AND CAN NOT--VIOLATE ANY PATENT!!!


>Instead I must keep my ideas a personal
>secret,

"Personal secret."  That makes it pretty plain.  You want to have
it, and you don't want anyone else to have it.

Yes, sir, it sounds like a fine educational environment . . . .


>I'd like
>to publish what I've learned, but I can't take the risk in this
>society -- software patents basically mean I don't really own my
>own ways of doing things.

Oh, NOW I see!  You don't want to publish because then someone
might figure out that you intend to use THEIR intellectual
property.  Pirates rarely do like to draw attention to themselves!

However, on another level, if you REALLY think that software ideas
are SO TRIVIAL, why don't you also assume that you have the ability
to GET AROUND any trivial patent?  Generally that assumption would
be correct.  Certainly, hardware designers have had to deal with
this on a continuing basis, because THEY EXPECT to honor patents.
So what are YOU whining about?

"Patents are trivial" but "I'm afraid I might not be able to get
around them" just does not compute.


>   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.

>Uh, if you can, via thought and abstractable communication alone,
>scan a keyboard, drive a display or printer, interpret and
>generate modem signals, store magnetic data on floppies,
>read/write/refresh dynamic RAM, then I very much would like to
>meet you in person!!  You could replace a few expensive
>workstations I have around here....

Uh, try again.  Maybe if you were able to follow this, you might
have seen that I was forming an analogy between your ignorant
defence of software and hardware devices themselves.

OBVIOUSLY, we can perform ALL of the actions of a HARDWARE CPU,
IN OUR HEAD, THE SAME AS WE CAN FOR SOFTWARE.  I claim that this is
a good analogy, and that,in BOTH cases, the fact that we CAN do such
instructions, one-by-one, DOES NOT mean that WE are "prior art" to
CPU's, OR software.  The innovation consists of doing it accurately
and fast, and software is just a way to tell hardware to do this.
When software operates, it is an extension of the hardware, and its
sole purpose is to produce a physical hardware effect.

If you are content to LOOK at software, THAT will not violate a
patent.  If you want software to order a machine to perform in a
particular way, then software BECOMES PART of the execution of the
machine, and MAY violate a patent.


>the transformation of the passage of time into information on what
>time it is is entirely algorithmic (if you allow that time itself
>is of an algorithmic nature, in that it is a law of nature), and
>thus not patentable -- until recently.

Again, since it is so DIFFICULT to understand, digital hardware IS
patentable.  And there is NO aspect of digital hardware which
cannot be emulated in the mind.  So the ability to get the same
results in the mind as in a patented device is NOT new.

Software is just a way to make a hardware device operate in a way
which emulates some OTHER hardware device, made ONLY in hardware,
WITHOUT software, which does the exact same thing.

Why should a hardware-only machine be patentable, but EXACTLY THE
SAME MACHINE, implemented with software and a CPU, NOT be
patentable?

WHAT DOES A HARDWARE PATENT MEAN, if a hardware device can be
emulated in software with impunity?


>   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.

>Then nobody who writes a program violates a patent, it is only
>those who actually run the program?  Hardly.

Of course not.  You missed a little step between WRITING and
USING:  simply DISTRIBUTING a program containing patented mechanisms
violates the patent.  Subsequent USE would ALSO violate the patent,
although a court might require notification of deceived users
before they would be liable.  The distributor would probably be
liable for such notification, but this would probably not be the
extent of his (or her) liability.


>The developer running his/her own program
>to test it wouldn't violate by these standards, because one can
>use a patented technique for testing purposes and such (I forget
>the exact wording, but it means you can experiment with a patented
>technique without worry), unless he/she sold the results of those
>runs.

Correct.


>But leave users holding
>the bag for actually running the program to get work done?  Nobody
>who wants software patents will agree with you on this one!

They WOULD side with me, for I am not on "that" side.  YOU put me
there so you could argue against it.  

SELLING programs containing patented mechanisms violates the sales
and distribution monopoly.  Even GIVING AWAY such programs violates
the distribution monopoly, unless there is a SUBSTANTIAL reason to
believe that programs will only be used for researching those ideas.
Just SAYING "This program should only use this program for research"
will probably cut little ice if the program is obviously set up for
production use.  Production use in other research activities is still
use.


>With traditional guidelines for a patent, it was always
>sufficiently clear who was doing the violating -- with
>matter-transformation processes, somebody has to build and/or
>run a machine to transform the matter.  With software, the program
>exists even when no machine exists to run it,

If a patented machine was sold without license, the manufacturer
and/or seller would be responsible.  Once the machine was in place,
if the user knew the machine was unpatented, continued use might
well give the user some responsibility.  JUST LIKE SOFTWARE. 
NOTHING HAS CHANGED.


>   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.

>Wrong, since all computer hardware innovation up to this point has
>not required software patents per se to be protected!  Again, software
>is not, by itself, going to be able to drive a display or scan a
>keyboard; the chip design that does these things is indeed hardware
>and thus patentable, inclusive of any software that is part of the
>patented process.  But the

Wrong, since this is NOT the LPF position.  Your point of departure
is the phrase "inclusive of any software."  (How tough could it be
for you to do this research?)  Shall I quote the LPF position paper
for you?

      "We recommend the passage of a law to exclude software from the
   domain of patents.  That is to say that, no matter what patents
   might exist, they would not cover implementations in software;
   only implementations in the form of hard-to-design hardware would
   be covered." -- Against Software Patents, p. 10

We now have FAST processors on a chip.  This is new.

But IF the fast processor emulates another chip with SOFTWARE (for
example, microcode), the LPF says that this would AVOID any HARDWARE
patents protecting the other chip.

Although the worth of many chips is in their speed, other chips may
implement complex protocols, such as normally-slow I/O operations. 
Such HARDWARE designs would no longer have effective patent
protection because another company could copy the design (WITHOUT
paying for research into error-rates, protocol formats, etc.) in a
fast microcode-driven single-chip processor.


>It is amazing to me that you can have written an article for a
>publication (admittedly one I've never heard of), presumably done
>all the necessary research,

Someone who has absolutely no compunction about MAKING UP statistics
for his argument, and who has no idea what the LPF position is on
software patents, has some damn nerve criticizing MY research in an
article he has never read.


>and yet state that "[software patents have] been a
>basis for the development of the computer industry"

Jeez, maybe they had better teach you to read again:

>   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.

You will note the words "and thus avoid the hardware patent."

Then, "Such protection has been the basis for the development of
the computer industry . . . ."

Clearly, I refer to HARDWARE PATENTS as ONE basis for the computer
industry, and I stand by that.


>Anyway, if you are willing to send me a copy of your article,

Oh, yeah, I really look forward to that.  Do your own "research."

We can ALREADY see just how much "research" you do . . . .

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