🚀 go-pugleaf

This whole issue is starting to take on too much of the aspect of
religion to suit me. I don't intend to argue the "patents are evil
things from the devil" theme!

Glossary: USPTO - United States Patent and Trademark Office, the
government agency that examines and issues patents in the U.S.

In article <BURLEY.91Mar1110527@albert.ai.mit.edu> burley@albert.ai.mit.edu (Craig Burley) writes:
>In article <870@nddsun1.sps.mot.com> waters@nddsun1.sps.mot.com (Mike Waters) writes:
>   In article <1991Feb28.111753.2@minerva.inesc.pt> fmhv@minerva.inesc.pt (Fernando Manuel Vasconcelos) writes:
>   A previous poster writes:
{and if YOU can keep the attribution straight ... }
>A patent search will be of little use with software if you are trying to
>ensure your code doesn't violate any patents, because a) it won't reveal
>pending patents, or patents not yet applied for; 

I assume that you concede that the COST isn't the factor then? 

Naturally it only reveals the ISSUED patents as of today, did you expect
anything else? Provided the time between filing and issue is brought
into line that should not be a problem. Right?

Even the courts are agreeing that 10-20 years from filing to issue is
absurd. Nothing to do with software, thats a general observation.

If no-one has filed a patent then publication (i.e. in the program
documentation, specification oreven the code itsefl!) prevents anyone from
patenting it. What is the problem?

> b) it won't reveal things
>you aren't aware you've "created" in your code that somebody else doesn't
>think is "obvious", especially if you "created" such things by simply running
>an optimizing (or especially a globally optimizing) compiler to build your
>application (theoretically, such a program could create the concept of
>backing store and the XOR cursor solution entirely on its own).

I am not aware of ANY compiler smart enough to "invent" what wasn't
already there.

>There is if you've got money.  I don't think the courts will care much what
>you charged for the product -- the issue is not how much did you get for
>the product, but how much should you have paid in licensing fees, and whether
>treble damages should be awarded.

Any specific citations? I am not aware of this being a software problem
particularly. Ham radio gets along fine with circuit patents.

>   A problem which has been hashed out in every country of the world, with
>   remarkable similarity in the results - the present patent system!
>
>Not the PRESENT patent system, but the one before around 1982 -- the one
>where obvious things and "nature" could not be patented.  

I wasn't aware of the deletion of "obviousness". Just because its
software certainly doesn't make it obvious.

>In that system,
>backing store and XOR cursors and the like could never have been patented,
>nor could most of today's software patents.

I have a file of about a hundred software patents, every one of which
was quite innovative AT THE TIME FILED!

>   >This price would put off every small software company ...

>   Why? Why hasn't this happened in fields like instant cameras (Land vs
>   Kodak), electronics etc.?

>There are several reasons I can think of.  First, software is much more fluid
>and new inventions instantly realized -- compare the amount of time it takes
>to implement a new idea, say like a new paper clip, where you've got to
>prototype it, find just the right materials, come up with (and patent) a
>production process, and so on, where "matter" is involved, to a new idea
>in software -- where once you have it, you can simply "type it in", see if
>it works, and then ride the coattails of all the abstraction software gives
>you (i.e. no need to work out the issue of materials or production, since
>computer hardware already abstracts that away).

THat would seem to me to make patents much MORE useful since you can
experiment and find truly original ways to do things without spending
huge amounts of money in prototypes.

>Compare this to software, where for the most part once you think up a neat
>new way to do something, it is fairly trivial to implement.  Hence the fact
>that most clever programmers create "50 new inventions by breakfast" --
>they're not smarter than their physical-scientist counterparts, just working
>in a field where realization stands an extremely short distance away from
>inspiration.

Depends what you call "invention" I guess. I don't call re-inventing the
wheel particularly inventive nor particularly useful. Much better to pay
to find out how someone has already done it and work on something which
has never been done before.

When I look at the progress made in hardware from the 1960's to the
present, then compare the progress in software I really have to wonder
at statements like this. Even the US government couldn't afford a 4Mbyte
machine in 1960, today a home type PC runs that much.

But we still have almost identical operating systems, substituting such
radical innovations as CRTs (hardware) for cards (hardware) and actually
trying to do some graphics (hardware). Having spent 20 years as a CAD
software developer it seems tome that the only REAL innovation has been
to adapt old ideas to new and better hardware. No wonder there is so
much fuss when you have to pay for re-inventing someone elses' wheel!

[deleting a lot of interesting speculation about AI futures and
"inventing machines"]

>The patent process is one that protects not the idea, but the sweat and toil
>and inspiration that goes into making the idea PRACTICAL.  At least, until
>around 1982, when the patent office decided to "give businesses a break"
>and allow more leniency in patenting things it never used to allow, like
>laws of nature -- which is what backing store and XOR cursors are, in
>essence. 

In the account I read from the USPTO, it was the courts who forced this,
the USPTO would just as soon avoid the whole mess like the good
bureaucrats they are!

I remain to be convinced on the backing store and XOR patents. Certainly
the concepts wern't well known in 1970 even though there was a lot of
experimentation with graphics then.

>On the other hand, if somebody gains some incredible insight and/or puts in
>tons of human-mind (i.e. not machine-reproducible) work to discover something
...
>This is too easy, especially
>compared to things like inventing a new drug, to allow a patent for it.
>Spend 5 years analyzing English and implementing various AI algorithms to
...
[and you]
>deserve a patent for it; spend 5 days plugging in various fairly well known
[things ... and you don't]

I don't know why the amount of effort it took you is relevant to whether
or not the thing is a "law of nature". The test is "obviousness" which
seems perfectly reasonable to me. If I add to "the store of human
knowledge" then I deserve some reward for it. If the "invention" is
something "useful" and you want to use it then you should expect to pay
me to teach you.

>   >It's very difficult ( if not impossible ) to grant software patents 
>   >judiciously.
>   >This proces would put off every small and medium software company.
>   >Thus making more damage then good ....
>
>   Please explain just what makes software so uniquely vulnerable? More so
>   than say circuit design which has always had patents, innovation and
>   small companies.
>
>Software is uniquely vulnerable because the patent office refuses to use
>computer science people to assess the patentability of software patents,
>whereas they use chem people to assess chem patents and so on.  Nobody in
>the patent office who figures out whether a new software patent is obvious
>or based on prior art has any idea what IS obvious or prior art in the
>software field.  

I assume that you have personal knowledge of this? 

Sounds like the problem is easily fixable though, hire some CS types.

>Certainly they have no idea what can be derived by machine
>simply by entering various general descriptions of a problem, as proved by
>backing store and XORing cursors and such becoming patents.  

I don't think that shows anything of the sort. It shows that the patents
took a long time to issue and the ideas became widespread during that
time. In hardware areas it is quite common to publish an article on a
new idea at the same time as a patent is being filed.

>MOST software
>patents, I'm told, boil down (and the boiling process is itself tedious,
>because patent lawyers ensure patents aren't readable) to laws of nature,
>obvious things, or prior art.

Well, I'm an EE (not a lawyer) and I write patents for a living! 
The requirement BTW is to pass a USPTO examination and become a
"registered patent agent" with the USPTO. A law degree is NOT required
unless you want to sue for infringment or something of the sort.

In fact one of the
requirements is that the patent be understandable to "one of ordinary
skill in the art". That test is actually used sometimes, we get an
Engineer to read the patent and explain it. If they can't then it gets
rewritten until they do! 

Usually at the insistance of the USPTO.

>The other problem is that it is so trivial in software to combine several
>general, obvious/law-of-nature/prior-art features in a new way.  
[long statement about how obvious the "backing store" patent must be
- I defer comment since I have never read the patent]

>been narrowed to the field of windowing systems!  Yet that kind of
>specific narrowing is an anathema to software growth, since what makes
>our industry grow by leaps and bounds is largely the ease with which we can
>apply working algorithms and ideas in one domain to another entirely different
>domain (which is what the process of porting applications to another machine
>is, in essence, for example).  

A new application ofan old idea is patentable, but just reinventing the
wheel on my new XYZ machine is not. I maintain that "porting" is nothing
more than wasted effort which one is forced to do in order to make up
for poor software and compilers.

What has made the industry grow BTW is the drop in hardware prices,
software has done nothing whatever to cause this. That is why the
percentage of total system cost due to software has gone from insignificant 
in 1950 to the dominant cost today.


-- 
           *Mike Waters    AA4MW/7  waters@nddsun1.sps.mot.com *
A psychiatrist is a person who will give you expensive answers that
your wife will give you for free.