🚀 go-pugleaf

1.  I was happy to find the above post more balanced than the
    previous one, and am pleased to reciprocate in kind.

2.  Some of you did not like my use of EMPHASIS, so I will reduce
    that usage.  Personally, I find the *other* emphasis _conventions_
    a bit too cute.

3.  Although I have tried to answer the previous post, I cannot
    continue with posts of this length.  Is it at all possible to cut
    back to fewer issues, saving some for another day, or is this
    all too intertwinkled?



In <BURLEY.91Sep3121001@churchy.gnu.ai.mit.edu>
   burley@churchy.gnu.ai.mit.edu (Craig Burley) responds:


SOFTWARE PATENT DEFINITION

>A patent that does not involve/require the transformation of matter,
>for example,

OK, lets see how it works:

How about a TELEPHONE; does *that* "transform matter?"  Would the
Bell patent be a "software patent?"

What about microphones and loudspeakers, organs, FM modulation, the
Cathode Ray Tube, antennas, the transistor itself, and dynamic RAM
storage cells; do *they* "transform matter?"

A *reasonable* definition based on the LPF position might be "a patent
which can be applied to a software implementation."



THE SOFTWARE PATENT LITERATURE

It is only to be expected that if one is not familiar with the patent
literature one will also see no advantage to using it.  Ordinarily
this would be called "ignorance."

Since the patent literature is little used by software designers, it
should comes as no surprise that there may be few cases where
specifically patent literature has benefitted a design.  In order
for it to help, somebody has to make use of it.

I have found the patent literature very helpful, even *dramatic* in
some instances although not for the reasons one might think.  I have
never had an idea jump out at me and solve my problem (and, if it did,
it probably would be under patent).  But I *have* used the flow of
patents as a clear indication of the direction of research and what
other researchers thought was important.

Although there is a lot of legal obfuscation in a patent, there is
also a certain *clarity* about it.  Somebody is trying to define
<a machine> in a way which _cannot_be_misunderstood_.  For someone
who designs <machines>, this is fundamental and important, perhaps
as important as calculus or matrix math is to a Physicist.

And, in general, a patent is *not* from somebody just sitting at a desk,
but is almost always from someone who has actually *done* something
at least arguably new (not yet another analysis of sorting).
Patents are often at least partially in the inventors' own words and
convey a certain understanding of the work, a view of the process of
innovation which never seems to be available in a journal article.



THE RANGE OF SOFTWARE PATENTS

>There are very many software patents issued, too many in fact.  Did you
>know that the "pause-one-second, send +++, pause-one-second" sequence
>is patented by Hayes?

Yes.  Although I do not *like* the protocol, I do think it was new at
the time, and not all that "obvious."

This is probably a pretty easy patent to get around, technically.
The point is that it is a *standard*, and Hayes *established* that
standard.  Why should they *not* get rewarded?  If you want to do it
some other way and set up your own standard, then fine.  Because they
got in early, made units, and established conventions, they earned the
right to benefit when society selected their work as standard.


>That is an example of a software patent -- even
>though it involves and can be implemented by hardware, it is entirely
>within the domain of algorithms and the passage of time, both of which
>are "laws of nature" according to patent terminology.  Only since the '80s

Well, there *are* no inventions which escape the "laws of nature."

Binary codings (not cryptology), are a good example of "algorithm" and
"time".  But codings have long been subject to patent; coding theory
involves a lot of expensive research, and the results are directly
applicable to improving information flow and reducing error rate.
Algorithms and time, but not new.  This has been the way the PTO has
operated, probably since the 50's.



EXAMPLE OF SOFTWARE PATENTS

>All of the software patents I've heard of were well-understood throughout
>the industry before the patents were published.  Please give me a counter-
>example of one where the patent truly published a brand-new approach to
>doing something and that was in the software/algorithm domain.

This question is inherently misleading.  A patent is open literature,
but not widely read.  *After* a person or company has decided to
publish the invention, they would be crazy not to try to publish
the idea in other forums as well.

The reason the question is deceptive is that, to meet its requirements,
we must find something which was patented but *not* otherwise published,
and this would be crazy.  And it is incorrect to then reason that "all
new ideas are in the open literature anyway," because it is the
patent which has *forced* the idea into the open literature.  This
fallacy is called "post hoc ergo propter hoc."

It is not possible to know whether if, without patents, an invention
would have been made public.  But it does seem obvious that *someone*
thought each invention was "important," or no patent application would
have been made.  Remembering our Capitalist system, one must wonder
whether that same person would have *released* the invention without a
way to profit from it.  If not, then it would never have appeared in
the literature.

In fact, we have some evidence that this is true, for *most* software
is distributed under attempted license agreements.  Some software is
distributed under license agreements with real teeth.  These people
must think they have *something* to protect, and that Copyright and
object code alone will not do it.  Maybe they are right.



IMPACT ON HARDWARE PATENTS

>It is true that patenting a hardware logic mechanism that implements
>something realizable in software would be risky, given that once someone
>did it in software, they were out of the reach of patent-infringement
>charges.  But that raises an interesting question: if the hardware logic
>is so simple that somebody can knock off an equivalent version in
>software, what's the point of letting it be patentable anyway?  Remember,
>hardware that drives RAM, I/O busses, and the like, would still be
>patentable because software can't do it itself -- one always needs
>specific hardware to accomplish that.

Patents are only granted for *new* inventions, and "RAM, I/O busses,
and the like" have been around for a while.  Incremental and/or
relatively non-limiting changes are still patented, but there is
less and less left which is new.  Moreover, an I/O chip must work with
someone else's idea of an I/O interface, one long-established and
standardized.  One does not have the freedom to innovate a new
I/O interface for a new peripheral chip.

In other discussion you (and the LPF) have said that software systems
can be *far more complex* than hardware systems (probably for the same
realization investment).  That hardware is "simple" follows from the
assumption that software systems are generally "more complex."  Thus,
we would expect that *most* digital designs could be "knocked off,"
when we have a fast-enough single-chip design.  In this way you
potentially threaten the patent protection for many hardware designs,
not just a hypothetical one or two.

The point is that information-driven aspects of research take as much
money (or more!) than hardware innovations.  If someone can rip off
that research--EVEN WHEN IMPLEMENTED IN HARDWARE--the research may not
be made.  I know this in my case, and my (second-hand) contact with
venture capital makes me believe it even more:  If those guys can't see
a way to get their money *out* (5x investment in 7 yrs), they will not
put money *in.*  That's Capitalism.  This is the economic system we have
to work with.  As bad as it is, it is at least arguably the best thing
around.  If you want to challenge the system itself, OK, but make that
clear.

As an aside, Zabigniev Brezinski (?) was interviewed on MacNeil/Lehrer
tonight (91-9-5), and was asked his opinion as to the causes of the
collapse of Communism.  The very first thing he mentioned was that
Communism had misunderstood the nature of the human being, in particular,
the relationship between creativity and the acquisition of goods.
The LPF claims that this does not apply to software.  I claim that
they are wrong.



CAN RELEASED SOFTWARE BE "SECRET"?

>...released software doesn't
>really contain secret ideas -- at least, not for long, if those ideas are
>valuable.

Well, I guess this is one reason that *important* software is almost
always sold under a license agreement.  Often, that agreement specifies
that the techniques in the program are proprietary.  The term "secret"
depends upon your particular definition, but if one is not allowed to
use the idea, *or* describe it in print, what would *you* call it?
Note that this is quite common, and is *not* an effect of "software
patents."

However, released software is also *not* a "full and open disclosure."
It may be that a few lone hackers will know its secrets (along with
the disassembly departments in the major software firms).  But most
individual programmers, most students, most professors will not
have access to that information.  That is why object-code software
does not constitute "prior art."



WHOSE PROPERTY IS IT?

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

>That is just the kind of thing I want to avoid -- having the courts decide

Our society is based on private ownership.  It is up to each citizen
to *be able* to decide who owns what, and not violate someone else's
ownership.  You may or may not *agree* with "software patents," but
you are bound to *respect* them, or find yourself in court.

If your distributed program infringes someone's patent, they will let
you know.  You can:

   a) dispute the infringement,
   b) dispute the patent,
   c) negotiate a license, or
   d) implement a non-infringing solution.

Option (d) is quite common in hardware design.

Hardware designers have long had the problem of respecting someone
else's rights, even when their designs were original.  In my experience,
hardware designers don't complain too much about designing around
patents, probably because they expect others to respect *their*
designs and rights.

If software designers had the same competence in their field that
hardware designers do in theirs, they would have no trouble getting
around most patents.  And the remaining patents which cannot be avoided
(after some study and work) really indicate how important they are.



RESPECTING PROPERTY RIGHTS

>   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.)

>Respecting intellectual property rights in this case would mean I have rights
>to my own ideas even if someone else happened to come up with them first.
>You wish to deny me of those rights -- even when extended to the realm of
>my own thoughts implemented in computer programs I wish to distribute.

Independent invention has *never* been an acceptable reason for
patent infringement.  This is *not* a "software patents" issue.
You may not *like* the idea, but it is hardly new.  (It is probably
necessary because of all the "honest" people out there:  "I invented
it independently.  Yeah, independently, that's the ticket.")

Thus, when you re-invent a patented invention, it is *not* *your*
*invention.*  From the get-go you *do not have* rights over something
someone else has patented.  This is the state of your rights.  You
cannot be denied rights which you do not have.


>If
>software patents are abolished, it is not piracy for me to use someone else's
>software algorithm any more than it is piracy to give away a copy of
>GNU EMACS.

The operable word here is "if," but your sentence is in the present
tense.  If you write software which infringes some else's patent and
then knowingly use it or distribute it, even "under the protection"
of an organization, the term "piracy" would seem very appropriate.

IF, in the future things change, well, former rum-runners have been
made ambassadors.  But *for now* the issue is clear.


>The point is that what you call "piracy", if you are indeed, as
>you seem to be, extending it to include cases where one simply has an idea
>that someone else had before and uses it in a product, happens all the time
>in software and far more often than in any other field where patents are
>permitted.

I have never said that, nor have I "seemed" to say that.  IF someone
HAS A PATENT, *then* you are bound to respect it, at least with regard
to distribution or economically-significant use.

It is worthwhile mentioning that this paranoia about all the other
patents which you may stumble into in the course of everyday programming
goes away if, as I believe, patents are rare.  Knuth, and the other
programming references, and decades of scads of magazines and journals
has made *a lot* of material available.  In my experience, it is *quite*
difficult to obtain a patent.

I do not say that all PTO decisions are right; *they* would not say
that.  Can you say "bureaucracy?"  We are talking decisions by humans,
albeit under law, and they are as liable to error as other legal
decisions.  With thousands of patents issued every week, some will be
turkeys.  But, *on the whole*, the system seems to work.


>You are saying an idea I have is not
>my property just because someone else had it first.  I am saying I can
>agree with this only insofar as it applies the way it has for a couple
>hundred years -- to matter-transforming machinery, but NOT to algorithms,
>because in the former case I can see an overall advantage to society for
>allowing such usurping of personal intellectual property rights, whereas
>in the latter case I can see no such advantage.

I am compelled to point out again that you do not get to pick and choose
which laws you will or will not obey--at least, not without risk.

You may or may not "feel" that something is "yours" for any particular
reason.  You may have had the idea, or known someone who sold it to
you, or inherited it from your grandfather.  But societies' definition
of your "right" is a *legal* definition, which, in this instance, does
not correspond to your feelings.  Saying that something "should" be
some way because you "feel" it, is really sort of silly.

As for an invention not being yours if someone else had the idea first,
this is not, as you note, a "software patents" issue.  But then you
go on to cloud the issue:

In a limited sense, inventions and patents are, and have always been,
ideas.  They are designs on paper.  These designs do not operate.
Of course, machinery made to those designs *may* operate.  Many such
designs did not "change matter" at all (e.g., player piano).  And
computer machinery which functions according to those designs does
indeed make physical changes, at least in stored charge.  Moreover,
it is obvious that a (complex and slow) *mechanical* computer could
be made to execute software.

This repeated attempt to imply that "software patents" are invalid
because the computer does not go through physical changes is clearly
specious.  



DISTRIBUTION OF NEW IDEAS

>I'd like the opportunity to make
>a plethora of software-patentable ideas available quickly and easily without
>risking being sued because someone else happened to have thought of them
>first.

No, that is *not* what you want.  Because you can do *that* with no
risk whatsoever.  Publishing *ideas* and making *ideas* available does
*not* violate a patent.  What *you* want to do is to be able to *use*
patented ideas.  Please make yourself clear on this.



MORE ON INTELLECTUAL PROPERTY

>   >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.
>
>We ALL are making use of intellectual property that does not "belong" to
>us.

No, we are not.  The key word here is "property."  If it does not
belong to someone, it is not their property.  Of course we stand on
the shoulders of those who have gone before, and in 17 years, a new
patent will be one more shoulder, and completely free.


>The originators of patent (and copyright) law made it plain that
>certain things belonged to nobody and everybody: laws of nature; obvious
>ideas; typefaces (fonts); and so on.  Laws of nature has always included
>algorithms and software,

This seems *deliberately* deceptive.  The phrase "laws of nature" clearly
has *not* always included "software."


>and the PTO never had any difficulty making
>the distinction, except that until the 1980s they took it to mean that
>no idea that even included a law of nature (algorithm) done in software
>as a critical element couldn't be patented, then they went too far in the
>other direction.

No.  The PTO is now being consistent.  Software which is not functioning
on hardware is subject to Copyright; it is a written work.  Software
which is functioning does so *on hardware* and accomplishes real,
physical work, just like any other electronic machine.

The whole point of a computer is a generalized logic machine.  The
machine was *designed* to be customized.  It was designed so that any
possible memory state could be used.  Software has not added one thing
to the hardware other than to select one of the many possibilities which
were originally designed into it.  Software cannot make the machine
do *any* other instruction than was designed into the hardware.  Software
can only *select* among *existing* hardware instructions, the way a
player-piano roll selects keys.  Software is *not* separate from the
hardware; when "software" executes, *only* the hardware is present, in
one of its many possible states.  Software, when it functions, is only a
state of the hardware.  With respect to patents, "software" is a misnomer:
there is *no* *different* *thing* to which we can apply the term; the
only thing which is present is the physical machine in one of its
possible states.  When it functions, software IS hardware.  If the
machine functions in a patented way, it must infringe.  Software
configures the machine; if it configures the machine to infringe,
then the configuration must infringe, so the software must infringe.

This is why patents "now" apply to software.  In the sense you mean,
there *is* no software.  Only hardware machines function.  And that
is why patents apply to functioning software.



20 PATENTABLE IDEAS IN 3 HOURS?

>   >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.
>
>Based on what I've seen patents awarded on in software, I'm being
>conservative with this estimate.
>
>   I would like to see YOU, or ANYONE, actually come up with, and
>   SUCCEED IN PATENTING 20 ideas from 3 hours work.
>
>If I had the tens of thousands of dollars and significant time, I or
>any decent programmer could do it.  Do you really think it takes time

This really shows that you simply do not have a clue about what a
patent is.  No wonder you are so paranoid.

Patentable ideas are rare and precious, and would be so even if they
had only to be "new."  Previously-disclosed ideas cannot be patented.

To say that you have "20 new patentable ideas" is to say that *no
other person* on the planet has seen fit to describe ANY of these
ideas in print.  You may be smart, but *nobody* is *that* smart.
Have you looked through Knuth lately?  Or the dragon book?  Or the
rest of the huge literature of software ideas which now *cannot* be
patented?  Relax; things are better than you think.

A "patentable idea" must ALSO be useful AND non-obvious.

Non-obvious is the real kicker.  Usually when this is discussed on
Usenet, every mother's son labors under the delusion that this means
that the examiner sits back and imagines whether it was obvious
or not.  And few examiners are computer scientists.

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.

Clearly, if the invention under examination had previously been assumed
impossible (say, in papers in the field), and a way had been found to
make the invention work, that would indicate that the invention was
not quite as obvious as one might think.



HOW FAST CAN *YOU* PROGRAM?

>I'm showing that, based on
>my experience in programming combined with what the PTO considers
>patentable, I can't possibly program at the same speed to which I am
>accustomed if I have to worry about possible patents (mine or somebody
>else's).  The fact that you seem to think this is possible suggests you
>aren't well-acquainted with the art itself.  It's no more an attack than

Stop putting words in my mouth.  You may very well have to slow down.
Not respecting patents which apply to software is not, at this time,
an option.  If you conspire to avoid the law, you may personally be
liable under it.

Most hardware designers work for a manufacturer, who is ultimately
responsible.  If your program is to be manufactured and sold, you will
need some sort of sales/support organization.  Patent issues are
just one of the many issues which the team must support.

If patent issues are such a danger for software firms, perhaps you
would care to tell us about a few companies which have been forced
out of business because of patents.  As compared to, say, the number
forced out because of "stolen" ideas which were *not* patented (or
obsolete software, or bad management, or the recession).  Patent
problems are a minor part of the real problems which must be handled
in a real software business.



AGAIN, WHAT *IS* A PATENT?

>TECO was an invention of
>sorts; most people who need to recognize it do indeed; we hardly need to
>reuse it; and it wasn't patented.  Yet it was a super-hot piece of
>software in its day, especially MIT's version.

I seriously doubt that a whole program could be patented effectively;
by that I mean that if it were patented, the patent would be worthless
as a monopoly.

If a whole application is somehow patented, all you have to do is change
some things and then the application is not the same, not protected under
patent.  (The claims define the limit of the patent.)

The patents you have to worry about are on small fundamental
mechanisms and processes.  And none of the ones openly described
before in history count.


>I know of very few cases of companies
>holding up releasing software until they can do a patent search and start
>applying for patents.

Well, if the software is released in object code form, that would not
constitute prior art and would not prevent a later patent application,
even in Europe or Japan.  But someone might disassemble the code,
discover the trade secret, and try to patent it, so it could be risky.
After they get bit by this once or twice, I expect they will seek to
avoid that risk.  Management does not always see new risks clearly.



SAY, CAN WE TALK?

>PUBLICATION
>   OF YOUR IDEAS DOES NOT--AND CAN NOT--VIOLATE ANY PATENT!!!
>
>Sure it can, and does, quite often.  compress was fully published, but
>turned out to violate a patent, and now people are (or at least were --
>I doubt I'm up-to-date on this) trying to abandon compress.  X-Windows
>was freely and openly published, and turned out to violate AT&T's
>backing-store patent.

No, you mean that *actual working implementations* can violate patents.

It would be a bit too cute, don't you think, if one were to argue that
a full working implementation was intended merely for "research," or
"not to be executed."  And execution certainly could violate a patent.
This argument sounds legally contributory, and is unlikely to stand.

You might, however, distribute some small example code, and this would
probably cause no problems at all.

But the main point is, that you *can* write an article about any idea
you have independent of whether somebody has a patent on it or not,
and they cannot sue you for doing so.  An article could arguably be
as simple as a fully-disclosing post (with some source code) on
Usenet.  And if nobody *does* have a patent pending, then the idea
will be free for use.

In contrast, the failure to publish can be quite costly.  By waiting,
you may allow someone else to get the patent.  You could try to argue
that "you had the idea first," but this will not cut much ice: you must
also move toward patenting the idea or disclosing it.  If you sit on
it, hide it from society until it is finally found out, society will
not reward you with a patent.

By publishing you do risk that somebody may at some point inform you of
their patent; then you can try to work around it.  But if your idea
*really is* new, the open description prevents an unwanted patent.

By NOT publishing, you risk that somebody will *later* come up with
the idea you had first, patent it, and you will *still* have to
work around it.  And if you sneak around deliberately hiding your work
to avoid any patents which might exist, this can't look good if you
ever *do* get to court.  How can not publishing be a good option?



MORE PIRACY?

>Why do you call me a pirate?  If I have an idea and I implement it, I don't
>want to have my life-savings taken away from me just because somebody else
>happened to patent it first.  I've had some of these ideas kicking around
>in my brain for 10-15 years without writing anything down because it was
>clear, based on existing PTO policies at the time, that it wasn't necessary.
>Now it's too late -- and I can't afford a patent search on all the possibly

Look, its a shame.  I feel for you.

But that's the way it is.

You can "have" an idea for as long as you want.  Maybe a lot of guys
"had" the idea.  But if nobody openly discloses the idea, it is ripe
to be reduced to practice and patented by *someone else*.

Why should the fact that you have had an idea kicking around in your
head for 10-15 years (without disclosing it to society) prevent someone
else (who is willing to disclose it) from getting a patent on that
invention?  Is it in societies' interest to have designers keep their
ideas private?

In fact, the 15 year value is rather interesting, for, if you *had*
disclosed then, EVEN IF someone did get a patent, that patent would
be about run out now, and you could soon freely use that idea.  By not
publishing you screwed yourself; society did not do it to you.  How
can you possibly argue that this is your best course for the future?



DISTINCTIONS

>To make a useful (I hope) sample distinction, a Turing machine is not
>patentable, while a particular implementation of one might be.  A Turing
>machine is just an algorithm, basically.  A physical machine that
>implements one is patentable to the extent it does physical ("matter-
>transforming") things, but the Turing nature of it, while it should be
>allowed (and didn't used to be) by the PTO, should not in and of itself
>be patentable (which it now is, if there were prior art).

If you write software for a non-extant hardware machine, software for
software's sake, that will not violate a patent.  The violation occurs
when the software can be used to make a machine function in a patented
way.  Then manufacturing, distribution, or use, could infringe.


>   Why should a hardware-only machine be patentable, but EXACTLY THE
>   SAME MACHINE, implemented with software and a CPU, NOT be
>   patentable?
>
>Because the hardware-only machine might transform matter while the software/
>CPU combination might just transform representations of matter.

You are basically misstating the requirements; MANY patented mechanical
devices do not "transform" matter in the sense of working it.
Mechanical things move.  Electronic devices change voltage.  Same thing.



SOFTWARE INFRINGES?

>You said "patents are about the USE of software TO PERFORM HARDWARE
>ACTIONS.  It is these actions which are patented" but now you say
>"simply DISTRIBUTING a program containing patented mechanisms violates
>the patent."  How do you reconcile this with "Without hardware, software
>ALREADY does not infringe patents"?  What do you mean "without hardware"?
>Code not typed in?  Code not compiled?  Code not running?  I'm confused
>about what you consider to be a patent violation.

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

Distributing a full, working, program is certainly manufacture,
distribution, and also contributory to use.

On the other hand, distributing examples, snippets, which do not
accomplish anything is probably OK as research material.  Writing in
a non-existent language (for which there was not hardware) would not
infringe (until somebody built hardware to execute it).  (We could
get into a long discussion about how software could *suddenly*
infringe when a new machine becomes available, but this is not
real.  Patents are *economic* tools.)

Software which is not "loaded," is only data, but it is just too cute
to say "How could I know my customers would execute that data?"

Can the simple replication of data infringe?  Well, we might ask how
you promoted it to your users.  Are you selling random data?  If so,
and it turns out to be a running program, that would be a bit cute.
And if you promote it to *be* a program, then you clearly knew what
you were doing when you manufactured it.


>If this is what
>you mean, then you are proposing that it is ok for me to write free
>software as long as I don't distribute it or use it, unless I'm willing
>to incur the expense of a patent search or the risk of not doing one,
>correct?

I don't know what good this is.  If you want to write it for yourself
and use it for yourself, just keep quite about it.  Giving it to
your friends for *use* (as opposed to *testing*) would probably
infringe, but probably nobody would care.  (If you own a large
factory and build infringing software for "your" use in "your"
factory, then you *might* have to worry about use infringement.)

I really don't see a problem.  If you are talking about being in
business, it is likely that by the time the patent holder finds you
out, you will either have the money to handle this problem (among
the million other problems of a small business), or the product
will have failed, in which case you have no problem.  If you want
to keep the product active, chances are 9 out of 10 that you can
find a workaround.  In fact, the patent holder may even *help* you
find a workaround.


>What is the difference between a program set up for research vs. production
>use on, say, a UNIX system?

If you are researching the infringing program (testing it, measuring it),
that would probably be OK.  If you are *using* the program for research
work, that sounds like infringement to me.



FREE SOFTWARE

>And, again, do you really want most or all distribution of free software
>to halt, given that it very likely violates software patents but the writers
>of it cannot afford patent searches to make sure?

Software, by its very nature, requires maintenance.  This happens both
because a program is static while the world changes around it, because
the design is generally incomplete, and because latent errors make
themselves known.  Somebody *must* do maintenance, even on *free*
software.  Thus, IF and WHEN the patent holder says you violate a
patent, then somebody must spend the effort to implement a workaround.

If a workaround does not happen, it is possible the users could bear
some risk of continued use, so probably the program would die.

As for what I want, well, I want everybody who has a software idea and
does not want to own it to publish that idea, and pretty soon we will
be in software where we are in hardware.

I would encourage programmers to patent, when they can.  It is hard
to imagine anything which is more "power to the people" than for
individuals to *own* the work which they define and support
themselves.



USERS LIABLE?

>By the way, I don't think that users of patent-violating hardware devices
>are ever liable.  A lawyer responded to a post of mine about a year or so
>ago.  I had been wondering whether I would be in any way liable or have to
>worry if I bought, say, a new kind of hammer, and it turned out it violated
>a patent.  He said the manufacturer and distributor of the hammer could
>be sued for retroactive licensing fees, but I didn't have to worry -- not
>only would a house I built with the hammer be safe, but I wouldn't have to
>return or pay an additional fee for the hammer.

In that case, you must have missed all the brouhaha in '89 and '90 between
Motorola and Hitachi.  As I remember it, Mot charged Hitachi with
infringement of (essentially) the 6801 architecture in the Hitachi "H"
series, and then Hitachi charged Mot with infringing a dual-port-RAM cell
on the 68030 and the 88200 RISK cache MMU.  It got tense for a while, and
Mot actually had to hold up some shipments.  As I recall, there was a
settlement after:  1) Mot re-designed the RAM cell (they may not have
actually taken it to mask), and  2) Mot threatened to ask customs to stop
the import of cars using the H chips (lots of cars)!  The car manufacturers
were certainly *customers* of Hitachi, although obviously not end users.

Again, if you build something for yourself and use it for yourself,
that is not going to be a problem.  Patents are *economic* tools, and
nobody is going to get much from you (unless you are rich, or have
infringement insurance).

But if, for example, a pirate manufactured an expensive infringing
program used by large corporations, and was eventually shut down,
the patent owner *might* ask users for reasonable royalties.  But more
likely the patent holder would get the assets of the business and
"upgrade" the users.

In general, none of this will happen.  Nobody wants to go to court.
A patent is assumed valid.  Most patents are upheld on appeal.  There
will be a work-around or a license fee, and a license fee would
be just another business expense the same as disks, documentation,
boxes, employees, insurance, retirement, etc., etc., etc.



FREE SOFTWARE?

>So if GNU C (gcc) incorporates a patent-violating algorithm, not only is
>the FSF liable for distributing it, but so is anyone who makes copies of it
>for friends, distributes it in turn, OR anyone who recompiles it (with itself)
>and/or pulls out the source code for sections of it (including the algorithm
>in question) to use in their own product.  Just as people who run compress
>are considered liable for violating the LZW patent, from what I've been able
>to determine.

Yes, but this is really a bit much.  The kind of *users* to go after,
from a patent-holder point of view, are big corporate users.  Little
users, why bother?

But wouldn't it be better to upgrade gcc to not infringe?

This might be harder for compress, but creativity is the reason that
designers are designers and managers are not.  Programmers simply need
to recognize and respond to the legitimate property rights of others.
Why is it such a *disaster* to have to use a different compression
technique?  Maybe you lose some efficiency (big deal), or maybe you
figure out something even better (hooray).



>Again, software patents ultimately means no way for free software to
>continue, at least not without massive support by the proprietary software
>industry (not very likely).

The problem is not patents.

The problem is that even free software needs support and maintenance,
but there is no cash flow for it.  Support is important.  Even when
software is free, without support (and continued development) it's
almost worthless.

The problem is not "software patents."  The problem is the lack of
a business basis for support.



DO PATENTS SUPPORT THE INDUSTRY?

>My point is that before the PTO started allowing software patents in the
>'80s, development of the computer industry, especially items that could
>(and would) be later emulated in software, was already rampant.  Talk to
>Intel about desirability of patents on microprocessor designs -- and that
>one isn't even a software patent!

The software industry is maturing.  As it matures, power tends to collect
in large firms.  Patents are one of the *few* tools a small firm would
have in competition with the large firms.

As you pointed out earlier, object code is not much of a secret for a
determined hacker.  (It is still not full, open disclosure, however;
not "prior art.")  This means that the large companies can swipe
innovations and put more resources into any competing product, more
features, more marketing, and so on.  Without a patent, a little guy
does not have much of a chance.

It is not patents that are doing it.  It is the changing industry.



MY MIDNIGHT ENGINEERING ARTICLE

I think I have it somewhere as a text file, if email would be OK.


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