Re: Software Patent Concerns => New Black Markets?

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

Patent Guy wrote:
> "Warren W. Gay VE3WWG" <ve3wwg@cogeco.ca> wrote in message > I don't fully buy this idea, though I have not read that
>>>Take an MPEG codec for example.  There are software codecs and hardware codecs.
> 
>>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!)
> 
> Your correct that software achieves its utility when executed by
> hardware.  But the general idea that ultimately resulted in the US
> courts allowing software patents is that software basically configures
> general-purpose hardware to perform in as special-purpose hardware. 
> Why should the special-purpose hardware (e.g. hardware codec) be
> protectable and the software/general-purpose hardware not be
> protectable?

I would suggest the question should be "why not?"  There are
obvious reasons why it is done in special-purpose hardware,
that would suggest that using GP hardware is less than ideal.

So why not allow it in GP hardware?  You've already given up
the advantage.

>>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?
> 
> Technically, yes the patent holder could prevent such activities.  The
> reality is what is the likelihood that the patent holder 1) will know,
> and 2) will care about such a deminimus?  It's vey unlikely that it is
> in the patent holder's best interest to sue you under such a senario.

This is one of the things I suspected, and don't like. I find
this scenario similar to the copyrighted material WRT backup
copies (like cassette music tapes). I think this is an example
of fair use, and it should be stated in law that way.

The fact that no one is likely to come after you, is not really
the point.

>>>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?
> 
> It really depends on how such legislation is drafted.  For example, I
> could see the FSF lobbying that all making, using, selling, offering
> to sell, importing of GPL and LGPL software was non-infringing.
> 
> The OSI might want to expand this to include other open source
> licenses.

You are probably right. It would certainly help the open
source movement, if it could be free of patent entanglements.

>>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.
> 
> The problem here from my understanding is the DMCA (copyright) and not
> patents.

But they have tried to outlaw the code that decodes it. So this
goes beyond copyright infringement, because after all, the
same process must occur under Windows to view DVDs.

>>I have trouble agreeing that simple ideas need to be protected
>>in the first place.
> 
> Let's say you came-up with a great idea for a toy.  With proper
> marketing, distribution, etc you you could make millions on the toy. 
> However, the toy is simple to make and once Milton Bradley or one of
> the other toy makers notices your success they will be able to
> undercut you and grab the whole market.  Without a patent, you are
> basically screwed because there isn't much you can do to stop the
> other manufacturers from appropriating your idea.  Do you still think
> simple ideas should not be patentable.

Yes, simple ideas should not be patentable.

Firstly, you wouldn't do the whole 9 yards on the simple toy,
for the obvious reasons you meantioned. If you did, then you
would do it differently to reduce your risk (ie. competition
is good).

This would also free the patent office from having to mess
with trivial matters, and focus on the truly deserving items.

>>"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.
> 
> If the patent had been filed in 1944, it would have expired roughly
> 1964.  I doubt that it's existence would have had much effect on the
> computing industry from 1944 to 1964.

Yes of course. But the point was that it was seen in the
public's best interest to see this idea in the public
domain. I think many software patents belong in this
category.

But I'll have to admit, that some processes like MPEG codecs
may well represent a class of worthy patentable algorithms
(I need to ponder this more).  But 20 years(?), if that is
how long it is, is much too long!

I think that the real issue most people have with software
patents (and in general), is whether or not a patent award
was worthy or not. From what I read, I don't believe that
the patent office is doing a very good job of this. How can
they? If they were software experts, they'd probably be
employed in software! It's like the Radio Shack guy behind
the counter knowing about electronics. If he really did,
he'd be employed in the field.

So if a patent office cannot properly administer software
patents, I would say that the system needs to be
scrapped. But I recognize that this is unlikely.

-- 
Warren W. Gay VE3WWG
http://home.cogeco.ca/~ve3wwg