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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