Re: Software Patent Concerns => New Black Markets?

["Warren W. Gay VE3WWG" <ve3wwg@cogeco.ca>]

>"Warren W. Gay VE3WWG" <ve3wwg@cogeco.ca> wrote in message news:<zWT%a.4145$q9.237570@read1.cgocable.net>...
>> "Robert C. Leif" <rleif@rleif.com> wrote in message news:mailman.21.1061147150.299.comp.lang.ada@ada.eu.org...
>> > The US patent law permits a prior art defense. Thus, if you are correct, the
>> > expert witnesses should do very well. In the US, an inventor swears to the
>> > correctness of his/her patent application.
>>
>> The fact that independently developed software can wind up in a
>> patent dispute, is all by itself very much a concern to me. In a
>> business with capital investment, this is a drain and
>> inconvenience (perhaps a serious one).
>>
>> But for the free software developer, this is a complete nightmare. So
>> even if there is a "defence", it is one that comes at a great cost.
>>
>> The net effect will be that free software developers will either
>> start to contribute anonymously, or will work around the legal
>> system (at least once the infringement is discovered). The path
>> of least resistance will be not to bother at all, since the
>> perceived risk will be too much. This too me is the greatest
>> crime of all possible outcomes.
>
>I am a patent attorney for a major hardware company which files many
>software patents each year and has released subtantial code under OSS
>licenses.  I'm also a computer hobbiest and am working on a couple of
>projects which I plan to release under a BSD style license once they
>are a bit more mature.  As a result, I believe I have a unique view on
>software patents.  Please, note that the following are my personal
>views and may not reflect the views of my employer.
>
>I do agree that software patents present problems for
>hobbiest/non-commercial developers.  However, I also believe that
>abolishing software patents is unworkable.  My experience has been
>that people who greatly oppose software patents generally do not have
>a problem with hardware patents.

I believe this is generally true. Hardware is different
by nature.

>The problem is that most patents can
>not easily be classified as a software patent or a hardware patent.  I
>beleive there is a law/thereom/postulate/etc. that basically says
>functionality that can be implemented in software can be implemented
>in hardware and visa versa.

I don't fully buy this idea, though I have not read that
piece of law. How would you classify a computer's memory?
RAM? Core memory?  I can only imagine this as hardware.

You need memory to make software work. More on the "stored
program" later.

> Take an MPEG codec for example.  There
>are software codecs and hardware codecs.  If some one comes up with an
>invention that greatly increases the compression of a MPEG stream, I
>see no reason why that inventor should not be able to obtain rights in
>harware, software, and hardware/software implementations of his
>advancement in the art.

This is surely an interesting example. But I would suggest that
it requires hardware to "use" MPEG codecs, even for a fully
software implementation (no software runs without hardware!)

>I believe the difference with software as compared to other industries
>is that there is substantial non-commercial and hobbiest activity
>which benefits the public at large.

If there is a patent on XYZZY compression technique
does the patent law prevent me from writing
and using it in the privacy of my home?

Just curious. Where does the patent law stand on this?

If I then share that same XYZZY code, am I the software creator in
violation?

Or the user of the code?

>So in my opinion is the key
>question is how to we retain the benefits of non-commercial and
>hobbiest activities without abolishing software patents?  I personally
>think the best way is to lobby Congress for some type of
>non-commercial/hobbiest defense to patent infringement.

But how do you do that? I mean, will it be legal to write
and use MPEG codecs for hobby purposes in GPLed code? What
if businesses use internally, without selling/distributing
it?  What if they distribute Linux distros with it in it?

What about DVD decoders on Linux? There is a real _need_
for such, and the motion picture industry does not want
to provide any such thing for Linux. What choice
do the Linux users have? The only legal choice is not
to view DVDs under Linux. But many feel this is going
too far.

>Apparantly, there has been some success in this approach in the past.
>The most pertinent part of 35 USC 286(c)(1) states;
>
>With respect to a medical practitioner&#8217;s performance of a
>medical activity that constitutes an infringement under section 271(a)
>or (b) of this title,
>the provisions of sections 281, 283, 284, and 285 of this title shall
>not apply against the medical practitioner or against a related health
>care entity with respect to such medical activity.
>
>281 - Says patentee has a civil action remedy for patent infringemnt
>283 - Provides injunctive relief
>284 - Provides monetary damages
>285 - Provides attorneys fees
>
>My understanding of this section is that it basically protects for
>example a surgeon that performs a patentable procedure (e.g. a heart
>by-pass).  I believe a similar approach could be used to protect the
>developers and users of open source/non-commercial software.  If
>drafted appropriately such a provision may even provide a carrot for
>companies to open source some of their software to avoid potential
>patent issues.

I doubt that any hobbiest is ever going to receive the same kind of
treatment that a life-saving physician will get. It is easy to sell this
idea to law makers for saving lives, but much tougher in the name of the
FSF/GNU. First of all, they have a difficult time understanding how this
is in their best interest.

>> The other issue at stake here is when the patent office (on any
>> continent), allows a wide ranging patent to be granted. Look at
>> the ones that have been in the news, ranging from web links to
>> 1-click shopping. Currently small e-shops are caving in and paying
>> the blackmail, since it is cheaper than going to court.
>
>I really do not have a problem with the 1-click patent.  There are
>many simple inventions that have been patented.  Also, in my opinion,
>patents are very important for simple inventions.  Since they are
>simple, every one and their brother can implement them once the
>invention becomes known to the public.  Patents provide really the
>only protection for such inventions.....
>.....  The problem with simple
>inventions is that they often look obvious in hindsight.  However,
>many times the invention really is the identfication of the problem
>(e.g. flow rate not fast enough).  Once the problem is identified the
>solution is simple (e.g. increase incline of slurry hopper).

I have trouble agreeing that simple ideas need to be protected
in the first place. Here is a less simple idea, and look at how
it was handled: the concept of the "stored program".

This interesting account is described in "The Dream Machine: J.C.R.
Licklider and the Revolution That Made Computing Personal" by M.
Mitchell Waldrop. It is found in the section "The Last Transition"
in Chapter 2.

http://www.amazon.com/exec/obidos/ASIN/014200135X/qid=1061341069/sr=2-1/ref=sr_2_1/103-7651020-7144655

There is mentioned how John von Neumann created a paper that
described computer architecture, rather than focus on the
physical implementation of a computer. He was himself
of course, influenced by the work of others. The paper described
the five functional units of this abstract computer ("organs"),
one of which was the memory unit. He said that the computer's
memory should be an electronic scratch pad, where it stored data,
programs, intermediate results and answers. The great leap here
was the "stored programs" part.

The account goes on to describe how the paper was enthusiastically
received, and how Herman Goldstine typed up von Neumann's paper, which
was still lacking credit references that were meant in the blank spaces
left for the purpose. Later of course, the paper got widely circulated,
and then John Mauchly and J. P. Eckert became upset because they were
not receiving credit for their idea.

The problem was that Mauchly and Eckert had already discussed the idea
in 1944, half a year before von Neumann joined the EDVAC project. The
stored program concept now had great potential for a patent, as Mauchly
and Eckert were eager to do.

Eventually this gave way to Mauchly and Eckert wanting a patent, vs von
Neumann and Goldstine who were intent on keeping the stored program
concept free. Since Mauchly and Eckert had done their work on univeristy
time, the University of Pennsylvania denied any application for patent
(not to mention that the university was not  wanting to make claim on
this idea).

To make a long story short, after Mauchly and Eckert quit the
university, this whole nasty patent dispute  wound up in the lap of the
army (who funded ENIAC and EDVAC). Finally in 1947, "exasperated army
attorneys at last threw out everybody's patent claims on the ground that
von Neumann's 'First Draft' paper represented prior public disclosure."

    But that is not all.

"They decreed that the stored-program idea rightfully
belonged in the public domain."

And that is how it was decided, and we enjoy its  benefits today.


I believe there are a number of ideas that either do not deserve to be
protected, or are in the public's best interest to be in the public
domain (as the "stored program" was declared).

>Also, most simple inventions are easily avoided.  For example, use a
>2-click ordering system instead of a 1-click ordering system.

This only works until some enterprising individual recognizes
this and patent protects the 2-click idea. Pretty soon, you'll
have to throw away your mouse to do online shopping because
you can't n-click either, without paying royalties to the sap
that is sucking the system dry.

> If you
>really derive that much benefit from the removal of that extra click,
>then you really are just strengthening the argument that it is
>valuable and that should be protectable (assuming it is new).

What I would suggest is that this sort of thing belongs in
the realm of common sense. How else would one want to shop
online? Why click more times than needed?  Its like why
walk farther than you need to? Does this deserve a patent?
I certainly don't think so.

>Note:
>my understanding of the 1-click patent is that much prior art applied
>against the patent.  While many were close none showed a true 1-click
>system.  Is it possible that Amazon was the first to develop 1-click
>ordering and that all of fan fare is a result of people thinking
>simple inventions should not be patentable?  I personally think that
>the patent system is doing its best when it is protecting simple and
>highly valuable inventions.

I think one of the other things that are very wrong with the patent
system(s) today, is that they protect for far too long. Much too long.
How long has LZW been around? I just saw an announcement the other day
that it was finally set free. I seem to remember this from "way back".

I think the idea of patents is OK, when used for their
originally intended purpose.

What I hate to see, are the leaches of society that take someone else's
idea and uses patents for the express purpose of extorting the life out
of someone else. I also hate to see it for stupid common sense things.

So if I had to choose between the abuses of patents, or no patent office
all, the choice would be a simple one.

Eventually, I think enough people will get fed up and say -- fix it or
lose it!  Now that software is being dragged into court, I think it is
high time something be done about it.

For me, it all comes down to the bottom line. Do you satisfy a few
individual's need to have it all, or do you work for the common good?
The choice for me is a simple one.
-- 
Warren W. Gay VE3WWG
http://home.cogeco.ca/~ve3wwg