High Voltage Shareware/high1.zip/high1/DIR9/PATENT09.ZIP/PP5.CAP

Internet Message Format | 1993-09-22 | 111KB

From: [e-mail]         Date: 09-18-93 (04:06)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

[e-mail] (Carl Oppedahl) writes:

>In <[e-mail]> [e-mail] (Richard M. Hartman) writes:

>>That said, I think the case against software patents is more to be
>>found in the review and granting process.  Conditions that would
>>normally invalidate some other sort of patent, such as prior art
>>or obviousness are consistantly overlooked by the patent office
>>when reviewing software patents.  Without being familiar with the
>>patent office's procedures I would surmise that since these people
>>are essentially laywers and not software engineers they are just
>>plain not aware of what prior art (speficially not-patented but
>>wide spread practices) might already exist, or what may or may not
>>be obvious to someone with a background and training that did not
>>come from a law school.

>This is a commonly raised concern.  The Patent Office is held up as
>being populated by people who took only Computer Science 101 -- people
>who would say "gee whiz, that's neat -- if you repeatedly XOR that byte
>you get a flashing cursor!  Here's your patent!"

>The patent examining corps is not "essentially lawyers".  Fewer than
>half are lawyers when they enter the Patent Office, although some do go
>to night law school while working there.  Virtually all examiners had,
>as their main academic credential when entering the Patent Office, an
>engineering degree.

I actually think that you would find that many of the (non oriental?)
non attorney examiners are going to law school at the same time.
In our firm of 8 patent attys, we have 4 who are former examiners.
They all did some, if not all of their law school education at night
while employed at the PTO.

>The view expressed by the poster blurs into another commonly voiced
>criticism of the Patent Office, namely that the Office does not hire
>enough Computer Science graduates.  (I wonder if at least one or two of
>the gripers are people who applied for work there and were turned
>down.)  The problem is not one the Patent Office can solve, but is
>rather a problem that can be laid to the schools that grant Computer
>Science degrees.  The basic problem is that the CS degree means very
>little, taken in the abstract.

I would possibly disagree. I think that much of this stems from the
time (pre-1991) when the PTO did not allow either examiners nor
patent attys/agents with CS degrees OR classes. Instead, what you
had during much of the time in question (before 1991 when many
of the questionable patents were being examined) were EE's in
the most part who literally did have that one FORTRAN class as
their only CS exposure examining the software patents. This has
changed in the last two years as more and more CS people enter
the PTO ranks (and as patent attys/agents). Likewise, the complaints
about the PTO's knowledge base are also based on past behaviour.
Today, they seem to have a reasonably good base, but obviously
didn't during much of the 1980's.

>It is so different in other more historically established engineering
>disciplines.  If I see three semesters of calculus on a transcript there
>is a certain fairly impressive list of minimum skills I can assume are
>(or once were) present in the applicant.  The same could be said, for
>example, of an analog-design course for which differential equations is
>a prerequisite.  And so on through many courses that are commonly found
>on the transcripts of people who have the degrees that the Patent Office
>has traditionally hired.  (And no, I am not an EE.)

>From all this the reader should have some sense of why people who apply
>for jobs at the Patent Office with a CS degree are not snapped up the
>way EEs and Chem Es and biochemistry PhDs are snapped up.

>Don't get me wrong here.  I am sure that there are lots of very, very
>smart people out there who would be wonderful patent examiners (and
>wonderful patent lawyers) who have CS degrees.  Thousands of them,
>probably.  But they are surrounded by tens of thousands of others with
>CS degrees.  The CS degree is not much help in identifying those with
>promise.

But I would still hire the CS graduate off the street to examine
an application with substantial software content before I would
let the EE (or worse). Why? Because I have to believe that 30-40
hurs in a subject, no matter how poorly taught, have to better
train you to understand a subject than 4 or 5. Now of course the
subject of patent attys is easier, since it is much easier to determine
what the person knows (and how good his education is) - as you admit
(in reverse - in something I probably deleted) the private sector
has no trouble rejecting because you went to podunk U, instead of MIT.

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (04:21)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

[e-mail] (Scott L. McGregor) writes:

>In article <[e-mail]>
[e-mail] (Geoffrey Clemm) writes:

>>The "little inventor" is in far more peril of being sued by a large company
>>with a portfolio of patents, since any software system the little inventor
>>comes up with is sure to infringe on at least some of patents of any large
>>company, or at least the large company's lawyers are happy to take the small
>>inventor to court in case it looks like the small inventor has something
>>the large company could make a profit from.

>This runs counter to my experience in several respects. First, large
>companies very regularly license all comers for a reasonable price, even
>little inventors. IBM, AT&T are good examples--most of their large
>patent pools are licenseable for royalties on the order of 1-5% and often
>less.  Having licensed the other technologies from the big company, the
>small inventor can come back and offer them a license on his technology
>and often they will take it--because that is precisely the business
>that these larger companies are in: commercializing and distributing
>technologies, both those they develop and those they license themselves.

>Second, while large company's lawyers are happy to take small inventors
>to court, the large company's accountants are less thrilled that legal
>expenses will probably outweigh any potential awards or opportunity costs.
>The legal system has this strange double edged sword: those with the
>money can buy the best legal help, etc. but they are also the party
>with the deepest pockets and consequently most vulnerable to attack

>This is one of the reasons why you see multi-billion dollar companies
>like Apple sueing other multi-billion dollar companies like HP and
>Microsoft, instead of suing you or me personally for using New Wave
>or Windows. Similarly, other multi-million dollar companies sue other
>multi-million dollar companies. Extrapolating that large companies
>will sue individuals and small garage software start-ups seems to me
>to be extrapolating beyond the range of the data, and may also reflect
>naivete in cost-benefit analysis in business decision making by people
>who characterize themselves as computer practioners and not businessmen
>and entrepreneurs.

I would agree here. In our practice, I have never seen the large
company sue the small one, or the individual, for patent infringement.
It seems to be the opposite - the small company or individual or
company suing the large one, or two large companies duking it out.
(We all love those - the money flows like water).

For any of those that worry that the small inventor cannot get his
day in court - my firm does accept IP cases on a contgency basis,
but remember - the first thing we ask for is the amount of damages
involved (and that is why you sue big companies and not small ones).

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (04:31)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

[e-mail] (Geoffrey Clemm) writes:

>In article <bhayden.747819804@teal> [e-mail] (Bruce Hayden)
writes:

>   As a patent attorney who has spent more time in litigation recently than
>   in prosecution, I find this suggestion absurd. The first, #1, thing that
>   anyone looks for in patent litigation is whether or not the possible
>   defendant has deep pockets. No deep pockets => no suit.

>   Why? Because patent litigation is not cheap....

>No, but initiating the process is.  And if you're a small software house,
>all you need is to have an RSA-like company initiate a patent suit,
>and how eager will the VC's be to invest in your company ?

Yes, but it is not a good idea to start a suit without the intent of
finishing it. That is one of the things that Rule 11 is helpful for.

>And why would a company spend the money to attack some small software house ?
>Because it scares off all the other small software houses that might
>otherwise compete with you.

And it aenates more people. I do not think that I am the only
person who cashed in his 1-2-3 after the Paperback Book case.
(I moved to Quatro Pro - and I am nogoing to stop using its
ability to read 1-2-3 macros either). Note the difference here.
Paperback Book got more sympathy probably than the suit was worth
economically (except as precendent etc. against Borland) than
Lotus ever made on the suit.

>   Two things. First, my experience is that there are indeed true "inventions"
>   in software. Maybe you are not the type that can create them. Many are not.

>Of course !  That was my mistake.  Instead of getting my PhD and spending
>15 years building large complex software systems for HP, Sun, and the phone
>companies, I should have become a patent attorney.  Then I'd be able to
>distinguish the "true inventions" in software (:-).

You are the one that claims that there is no "invention" in the field,
I am not. Indeed, I am surprised at your position here, since PhD
degrees require what could almost pass as sufficient originality.

Note that I did not mean the above as a personal attack. I just have
a hard time believing that anyone who has had as much experience in
the field as you do can believe that what they do and have been
doing for the last 15 years does not have as much, if not more,
creative content than any other branch of engineering

I would say that one of the things that drew me so strongly to
programming and systems design was the amount of creativity involved.
I can remember some long discussions with a friend of mine who makes
her living painting comparing our creative experiences, and finding
much more in common with her than with many of the engineers I know.

>   Secondly, an inventive combination of a number of relatively obvious
>   inventions has allways been patentable. Ever look at a mechanical patent?
>   Some of them are full of gears, screws, etc. Does the fact that gears, etc.
>   are now obvious affect the patentability of the invention? Of course not.

>It does if a different company has patented each of the kinds of gears
>you need to use, and a different set of companies have patented each
>of the kinds of screws you need to use, since those discerning folks at
>the patent office have chosen to deem the software equivalent of gears
>and screws as patentable.

You misunderstand patents then. Just because the underlying "gears"
are also patentable does not impact in the least the ability to
patent the machine made from the gears.

Unless you are arguing that the "gears" shouldn't be patentable on their
own. But that has never been the case. The only difference here is that
the gears have now passed into the publlic domain. These software
gears and nuts and bolts will also pass into the PD in time (assumming,
which I don't, that that is what is being patented).

>"But each company only wants 1%-5% royalty."  Unfortunately, non-trivial
>software systems contains thousands (at the very least) of these "inventions"
>Those 1000% total royalty payments add up fast.

>Cheers,

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (04:48)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

[e-mail] (Mike Waters) writes:

>In article <[e-mail]>,
>[e-mail] (D. J. Bernstein) wrote:

>> In article <rcrw90-140993091456@node_142cf.aieg.mot.com>
[e-mail] (Mike Waters) writes:
>> > I would agree that the prior art in software cases is very poorly
organized
>> > and hard to search.  I think the USPTO would agree with this too!  The
>> > solution, however, is not to forbid software patents but to organize the
>> > body of software knowledge in much the same way as other fields have been
-
>>
>> But of course the problem of software patents extends much deeper than
>> the USPTO's mere failure to comprehend existing literature. Surely you
>> will agree that there is already a body of prior art which could not be
>> any better organized by the USPTO---namely, its very own patents! Yet
>> the USPTO grants software patents which are entirely anticipated by
>> _previous software patents_. How could any database of knowledge solve
>> this problem?

>I keep challenging you to point out a single case where this has happened
>and you keep citing cases you claim are "bad" for other reasons.

>The one case I can think of was "invalid" by some rule of yours, not the
>U.S. legal system.  You don't get to make up your own rules here!

I would guess the problem if there is one is that in some of these
cases terminology changes (after all ,there is a saying that a
patent applicant (or actually his atty) is his own lexographer).

As an example, in a piece of litigation I am involved in currently,
we just got back a search report from a professional searcher who
searches the art professionally, and the searcher failed to find
any art that anticipates the claims of a certain patent. I found
two such patents. My advantage? I had used the underlying product
in one case, and had seen the other in action. So I knew that the
missing features had to be somewhere in the (150 page spec and
100 figure) patents. And sure enough - on page 108 and 110 I found
the stuff that wasn't in the summary. It wasn't in the summary
because these patents covered slightly different subject matter.
The point? In complex systems, it is very easy to miss anticipating
patents unless you know exactly what you are looking for.

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (04:57)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

>The problem isn't with intellectual property per se; the problem is
>with the judicial system which favorizes large companies in all such
>cases.

It also favors them as defendants. I would never sue a small company
on a contingency basis. Why? Because it wouldn't be worth my time.
The only defendant worth suing on a contingency basis is the large
(or medium) corporation. They have the deep pockets to make it
worth it, and the sales to base a damage award on.

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (05:01)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

[e-mail] (Paul Eggert) writes:

>[e-mail] (Bruce Hayden) writes:

> my experience is that there are indeed true "inventions" in software.

>No one denies that progress occurs in the software industry.
>But what most software practitioners deny is that this progress can or
>should be shoehorned into the traditional patent notion of ``inventions''.

>For example, object-oriented programming is often thought to be an
>innovation in software.  But fundamentally, it is an innovation in a
>_way of thinking_ about software.  Once you think about software in an
>object-oriented way, then certain ways of implementing it are obvious.
>It would be fundamentally wrong for these implementation strategies to
>become patented, since they are obvious, and since patenting them would
>have greatly discouraged the use of OOP and would thus have inflicted
>great harm on the software industry.  But under the current rules, the
>Patent Office would have granted those patents, since the Patent
>Office's rule for ``what is obvious'' are the rules of patent lawyers,
>not the rules of software practitioners.

Come on. How do you think obviousness is determined in the real world?
Do you put a couple of patent attorneys on the stand? Of course not.
You put you PhD on the stand, and he states that of course it was
obvious - just look at these journal articles. They put their PhD
on the stand and he says just the opposite. The side that wins
probably had the better sounding PhD.

>Of course, one could propose that the Patent Office tighten up its
>standards and not let so many obvious techniques to be patented.  Such
>an improvement is unlikely, since the current system caters to patent
>lawyers instead of to the public.  But let's suppose that the standards
>were magically set higher.  From your experience, can you give examples
>of recent software innovations that would actually deserve patents?
>(By ``recent'' I mean ``in the past 10 years''; by ``software'' I mean
>the LPF's definition.)  I can't think of many.  This is not because
>software lacks innovations; it's because the innovations do not fit
>into the ``invention'' model of the patent system.  Generally, the true
>inventions in software are fundamentally mathematical in nature, and
>there are good reasons that we don't allow mathematics to be patented.

Why? Because it is like a law of nature (such as gravity)?

Clever twist though - trying to turn the argument around. Without
citing any "bad" patents that were obvious (at least to you in
20/20 hindsight), you are asking the proponent of software patents
to find a good one.

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (05:18)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

[e-mail] (Carl Oppedahl) writes:

>You are absolutely right that if any one claim of '746 is disclosed or
>claimed in '302 then this is a serious weakness in '746.  Such a thing,
>if true, would gravely impair the owner of '746 in court if they were
>asserting claim 7 against someone.

>It is also the case, however, that the pure legal consequence of one
>claim being invalid is just that -- that the claim is invalid.  But the
>claims that depend from that claim are not automatically invalid.  And
>the other claims are not automatically invalid.  It happens all the time
>that a claim in a patent is asserted and successfully, even if some
>other claim of the patent is invalid.  So for a patent to be invalid
>would have to mean that all the claims of the patent are invalid.  For a
>patent to be anticipated would have to mean that all the claims are
>anticipated.

And this is the reason that patents have so many claims.

I was taught to try to draft three levels of claims -
broad, intermediate, and narrow. The broad claims are what you
would like (but don't really expect), the medium claims are
those you expect, and the narrow claims are your backup position,
in case either the examiner or the courts throw out the others.
These latter tend to be specific enough that you can almost
allways get them issued, and they will rarely get thrown out later
(for being anticipated at least).

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (05:23)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Colorado SuperNet, Inc.

[e-mail] (Arthur Rubin) writes:

>Actually, it seems reasonable to me to take this down to the claim level.
>If claim 7 of 4,814,746 is disclosed or claimed in 4,558,302, then that
>_claim_ of 4,814,746 is invalid, which _should_ create a presumption of
>invalidity of the the '746 patent.  (I'm not saying it does legally create
>such a presumption or that the rest of the patent is necessarily
>invalidateable.)

Huh? As Carl points out in another post, you have to knock out ALL
of the claims in a patent to invalidate it. Claims are often drafted
with very different scope. So, for example you may have broad, intermediate,
and narrow claims in a patent. Invalidating a single broad claim has
NO legal significance in invalidating the more narrow claims
(but of couse, if you invalidate for anticipation a dependant claim,
you have invalidated the underlying independant and dependant claims).

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (05:43)
Organization: Colorado SuperNet, Inc.

>But you are asking about individual courses.  Ny perception is that
>nothing short of the law degree would make a big difference to most
>employers.

There is a saying that letting someone know that you dropped out
of law school part way through is worse than not having gone at all
in the eyes of some people because this shows you are a quitter.
(in particular in the eyes of those who stuck it out and got their JD).

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (05:51)
Subj: Re: Expert Testimony       Status: Public
Organization: Colorado SuperNet, Inc.

[e-mail] (Arsalan Saljoughy) writes:

>I have an intriguing question concerning the validity of expert testimony.

>Suppose an expert testifies to a certain scientific effect, while her
experties
>are based on measurements made by instruments which either lack engineering
>specifications altogether, or have specifications whose accuracy are in
>dispute within the scientific community.  My general question is:  does
>the law require expert testimony to be based on "reliable" instrumentation, or
>is it simply the overall opinion of the expert witness that matters?  In other
>words, is the expert witness liable to  ascertain the reliablility of his
>instruments, before making conclusions that are admissible in a court of law
>as expert testimony?

>In general, I don't know what makes an expert, an expert, in the eyes of the
>law.  Degrees, experience, ...what?  Is an expert witness immune from
>malpractice?

Usually a combination of degrees and experience. Without one or the other
one is subject to attack as not being an expert.

As for malpractice, it depends on who you are talking about being the
plaintiff. As I see it, the only person who could possibly be the
plaintiff is the person hiring the expert witness. Anyone else wouldn't
have an employer/employee relationship, and the expert would probably
be shielded by the fact that the testimony was in court.

What is expert testimony is quite hotly debated these days. One major
complaint has been what is called "junk science". The Supreme Court
recently modified the requirements somewhat. What they appear to
have thrown out is what is called the Fry(?) test. This test essentially
required peer review. What they left in place was the judge acting
as gatekeeper, with some warnings to try and keep out the junk science.
Only time will tell how effective this will be.

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: [e-mail]         Date: 09-18-93 (05:58)
SUBJECT:Re: GUIs known to patent courts, from Apple/Microsoft case
Organization: Colorado SuperNet, Inc.

[e-mail] (Tim Arnold) writes:

>[e-mail] (Gregory Aharonian) writes:

>>     Microsoft's lawyers strategy of presenting such comparison data probably
>>helped strongly in convincing the court of the non-novelty of Apple's user
>>interfaces.  I guess the lawyers felt confident enough to not cite the many
>>university user interface systems, which while not commercialized, having
been
>>published, would qualify for prior art consideration.  Given the hundreds of

>Since when has prior art been a consideration in copyright (and for
>that matter novelty)? These are patent concepts.

>I understood that the data that this table reproduces was used to show
>that the Microsoft interface incorporated expressions that although
>found in the Apple API were also found in a number of other systems so
>that the expressions relied on were not part of the creative input of
>Apple i.e. if Microsoft did reproduce these expressions then Apple was
>not the appropriate plaintiff. This is of course related to prior art
>but has a quite different effect in some circumstances.

Well, they may be somewhat differen, but I can also see similarities.

In any case, I think that we are going to see the Apple case as an
extreme. Currently we have the Lotus v. Borland and the Apple v. MS/HP
cases as essentially opposite extremes. I don't know anyone that thinks
that Lotus would have won in the 9th circuit. And obviously Apple
would have won with Lotus's judge.

I think you are going to see some sort of intermediate position prevail.
Some of the other filtration cases seem more reasonable. I see the
problem with Apple as first ignoring the amount of creativity found
in some situations (where the judge said that the feature should
be filtered because the relevant choice was based on efficiency grounds
and efficiency is the goal of all programmers, etc.). Also, I can
fault the filtration used because the expression is the sum of the
decisions made. For example, if you have two equal alternatives in
say twenty instances, you have 2**20 equally possible alternatives.
The copying of any one of these choices should constitute infringement.
But then, Apple had the discretion to bring to the attention the
features that it felt infringe. Thus it could tacitly ignore those
places where MS and HP made different choices. Not an easy answer.

Bruce E. Hayden                 1720 South Bellaire Street
[e-mail]                   1100 Colorado Tower Bldg.
[phone]                      Denver, Colorado 80222

==============================================================================
From: OWL.CALTECH.EDU!GAGEORGE     Date: 09-18-93 (07:32)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: California Institute of Technology, Pasadena

I have been following this thread and have found it quite interesting and
thought I'd throw in my two cents worth.  If you want to try to read
biases into my musings I'll give you my pertinent background.  I am
co-inventor on a number of patents, some of which would fit the
definitions of "software patent".  Some of these patents have been and are
in litigation.  I have only recently started reading this newsgroup so I
have not seen the actual LPF document.  I only know it from the
interpretive postings.  Finally, before you knock me for it, I'll admit to
arguing both sides of the "should there be software patents" question.
I'm just throwing out some ideas.

There are three areas in which I wanted to make comments.  First, there
has been a lot of discussions of VCs and patents.  I have been involved in
three start-ups all of which involved VC funding.  In every case
protection of the technology was a major issue and patents were the
preferred method.  Non-patentability did not kill deals, but it made our
selling job (to the VCs when we didn't have patents) much more difficult.

Secondly, I wonder if maybe the problem with patents and software has
something to do with the maturity of the industry (i.e. very young).  When
patents came into existence many mechanical systems and components were
already very well-known, so the basic elements of mechanical systems
(people weren't doing much software in the 1800's) were patent-free.  The
patents were granted on the much more complex and specialized combination
of those elements.  The software industry is still in its infancy and the
patents are being granted on the equivalent of gears and pullies (actually
I don't think it's that bad, but some people seem to be arguing that way).
I don't know what the supreme court ruling was based on for not allowing
business method patents, but it seems to me that it might have been a
similar situation.  If this idea is the problem we should see similar
problems in any new industry.  Does anyone have other examples?  Bio-tech
maybe?

Finally, there is a point which there seems to be general agreement on,
and because of that, the arguments past that point puzzle me somewhat.  It
seems that most people are agreeing that existence of patents does not
affect innovation, only commercialization.  That seems very obvious to me,
the people that invent very innovative things are almost always motivated
by the process of invention not the hope of big bucks.  So the existence
of patents should not affect innovation just the final availablility and
cost of the invention (the commercialization).  I would also agree with
the general pro-patent line that patents encourage innovation because you
have to innovate to get around a patent (but this is usually not
ground-breaking type innovation).  Now my puzzlement - if we are not
stifling innovation, why should LPF care about software patents?  It would
seem that the only remaining anti-patent argument is that it jacks up cost
to the end-user and doesn't let Joe Schmoo sell whatever software products
he wants.  So maybe he can't sell a product that uses LZW.  I guess he'll
have to come up with a new (more innovative) idea if he wants to sell
something.  This holds true for all non-software patents too.  So I could
understand an argument against all patents, but I can't understand
singling out software by this argument.

BTW, if anyone has a copy of the list of patent quantities for
universities that was mentioned at some point in the discussion I'd
appreciate being mailed it.

Glen George
EE Dept. / Caltech
[e-mail]


==============================================================================
From: [e-mail]         Date: 09-18-93 (09:21)
SUBJECT:Re: The simplest shareware situation
Organization: TheNews

In article <[e-mail]>
[e-mail] (D. J. Bernstein) writes:
>In article <[e-mail]> [e-mail] (Bill Cramer)
writes:
>> Bottom line, I think, is that whether or not a shrinkwrap license
>> is enforcable is strictly a matter of *state* law.
>
>But that's exactly what Vault v. Quaid established was _not_ the case!
>
>Federal copyright law preempts any attempt by the states to take away
>the rights of owners. You (like Conley, the loudest critic of Vault)
>seem to think that the states can dodge this restriction by redefining
>owners as licensees. If this were true, preemption would be useless!
>Any aspect of the copyright law could be changed by state definitions.

Perhaps I should have chosen my words more carefully.  "Bottom line, I think,
is that whether or not a shrinkwrap license is enforcable is strictly a matter
of *valid state law*."

Vault notes 3 conflicts between the state and federal law -- the total
prohibition on copying, eternal protection against copying, and protection of
all software. I agree that this makes *this act* invalid.  But my question is
this: What would the court have done had the state law allowed the making of
archival copies, only provided protection for the life+50 term, and only
permitted the licenses on federally protected works?  If the state law then did
not contradict the federal law, what's left to interfere with the federal law?

My point is that Vault does not stand for the principle that *all* shrinkwrap
licenses are invalid *all of the time*, which is what I believed was being said
(my apologies if I misread the postings). They may in fact be invalid all of
the time, but Vault does not say this, nor is a federal court in a position to
define what is and is not valid state law (except like in Vault where it
buggers with federal law).  If a shrinkwrap license, for example, excludes or
limits warranties, it's the state's business on whether or not this is
unconscionable (Magnuson-Moss considerations aside).

Bill Cramer

| 1257 Worcester Road, Suite 196      | "A man can't pull himself up
| Framingham, MA  01701  USA          |    by his bootstraps if he
| Internet: [e-mail]      |    can't even afford shoes."
| CIS: 70322,3412                     |


==============================================================================
From: [e-mail]          Date: 09-17-93 (16:22)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Prescient Software, Inc.

In article <[e-mail]> [e-mail] (Paul Eggert) writes:
>Scott McGregor's faith in the patent system is boundless...

Paul Eggert mistakes my lack of faith in the ASP proposal for faith in
the patent system. In doing so he has failed to notice that I have
often agreed that the patent system in general, and the parts that
affect our industry in particular are a worthy target for reform. I
acknowledge that the current system is flawed, but I find the ASP proposal
more flawed as well: and likely to cause the current system to become
even more flawed (both within the software industry and without) although
the flaws would more likely show themselves in different ways.

While Carl, Mike and others here who share my concern with ASP have
all admitted the limitations in the current patent system and practice,
and have discussed alternatives from stricter rules on novelty and
obviousness to clearinghouses and even to abandonment of patents (not
just software patents), it seems to me that it is rather Paul and Dan who
have steadfastly adhered to the ASP proposal with boundless faith--refusing
to address the issues of commercialization, the potential risk of spillover
to other process areas, and the difficulties inherent in equivalent ASICs
(which would be patentable under ASP) and software instructions running
on a PC microprocessor (which would not be).

I am interested in discussions of potential reforms that might possibly
be enacted by congress, or practices that might be adopted by the PTO.
For reasons I have given before, I do not think the ASP proposal could
ever be adopted in this way. I am less interested in an academic debate
over ASP given that it will probably not fly. I think that those of us
who are truly concerned about real reform would be better served by turning
our focus to proposals that might have a better chance for success in
the legislature and PTO.

> Against faith like this, reason and argument are helpless.

I think this can be equally said about the ASP apologist postings here.
I tend to agree that further discussion will be unproductive if it
is merely along the line of "patents can be bad (we both agree), the
ASP proposal is the only way out (Paul), No it isn't--it is fatally
flawed (me), but there are these bad patents (Paul again)" -- Shampoo,
rinse and repeat--no terminating conditional! :-)

I'm willing to drop this unproductive line of discussion and just agree
to disagree with Paul and Dan.  But I hope that sometime in the future
a discussion of alternative reform approaches will be discussed without
the antiASP = pro-patent polarization.


--
-- Scott L. McGregor  [e-mail]
   President   tel: [phone]
   Prescient Software, Inc. fax: [phone]
   3494 Yuba Avenue
   San Jose, CA 95117-2967

Prescient Software sells software products for group productivity and
offers consulting  & training in software process, project management
and design for usability.


==============================================================================
From: [e-mail]           Date: 09-18-93 (12:28)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail]
(D. J. Bernstein) writes:

>In article <rcrw90-170993124535@node_142cf.aieg.mot.com> [e-mail]
(Mike Waters) writes:
>> His point is exactly the same as I read it - neither patent *claims* the
>> same material.

>There's an article by the Bell-Witten-Cleary crowd which states outright
>that MW1 is the same as LZW. This is _recognized fact_ among data
>compression experts. 4,814,746 claims MW1 and MW2; 4,558,302 claims LZW.

>As usual, you display your ignorance of this fact by claiming that it is
>false---and, as usual, you have no idea what you're talking about.

My suggestion to Mr. Bernstein is that his comments would be better
received if they stated points of discussion rather than attacking the
poster (here, Mr. Waters) personally as "ignorant".

Mr. Bernstein was using a word with a quite well established legal
meaning -- the word "anticipates".  If Mr. Bernstein adopts Mr. Gailly's
example of patent 4,814,746 being supposedly "entirely anticipated" by
patent 4.558,302, then whether he likes it or not he is using a legal
term with a precise meaning.

For '302 to completely anticipate '746 (or merely to anticipate it,
which turns out to be the same thing legally, since anticipation is an
all-or-nothing thing, like being pregnant) then every single element in
every single claim of '746 would have to appear in '302.  It does not,
so far as I can see.

Now Mr. Bernstein says it is a three-step or four-step process.  Let's
map it out.

To be proven:  for each claim in '746, each element is found in '302.

Starting from the '302 end of the statement, we have the statement that
'302 claims LZW.  It is of course irrelevant what '302 claims.  But
suppose we cut Mr. Bernstein some slack and let him say that what he
meaant to say was that '302 discloses LZW.

We then have the statement, which for purpose of this discussion I will
take as true, that everyone who matters, including some article authors,
say that LZW and MW1 are the same thing.  (Apparently they amount to the
same thing mathematically but use all different nouns and verbs;  but
who cares about that -- for Mr. Bernstein's benefit we are assuming it
is true and that is that.)

Thus '302 discloses MW1.

Then we have the statement by Mr. Bernstein that '746 claims MW1 and
MW2.  Perhaps some of the claims (call them group I) claim MW1 by
itself;  perhaps other claims (call them group II) claim doing MW1 and
MW2 together;  and perhaps still other claims (call them group III)
claim MW2 by itself.

Then what we have is that '302 anticipates only the group-I claims of
'746.  It does not anticipate the group-II claims of '746, since to
anticipate them a single piece of prior art would have to contain all of
MW1 and all of MW2, and yet Mr. Bernstein only seems to say that MW1 can
be found in '302.  Finally, '302 does not anticipate the group-III
claims.

From Mr. Bernstein's statements one cannot reach the conclusion that
'302 anticipates '746, and the statements suggest the opposite to be the
actual situation, since the statements suggest that at least one claim
of '746 is directed to MW2, and that MW2 cannot be found in '302.

--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: [e-mail]        Date: 09-18-93 (12:17)
SUBJECT:Advice: PAY and/or royalties?
Organization: University of Vermont -- Division of EMBA Computer Facility


I have an opportunity to develop software and am begining negotiations
with the company.  They prefer to pay less up front and give me royalties.
I've never been in this type of situation so I don't know what to
expect.  Does anyone work this way that could pass on some advice to me
or point me to some books that might help?  A sample contract might be nice.
I'm also considering a lawyer.

Other possibilites are being able to sell the product myself, maybe to a
different market.

Thanks for your help.


==============================================================================
From: sohl,william h               Date: 09-18-93 (12:44)
SUBJECT:Re: Query: legal status of shareware fee request
Organization: Bellcore, Livingston, NJ

In article <27cuk4$[e-mail]> [e-mail] (Dennis O'Neill)
writes:
>I'm wondering about the legal status of the fee request that's included with
>shareware.  What does the law have to say about whether one is required to
>pay the requested shareware fee?  Does the shareware licensing statement
>have legal weight?
>
>(I know what the *right* thing to do is.  I just want to know what the
>*legal requirements* are, so I can explain them when asked.)
>--
>Dennis O'Neill               [e-mail]                 703-476-5197

This question starts a discussion in this newsgroup about every
two/three months.  Factually, there has not been any legal
test of an enforcement effort by a shareware author against
someone who obtained the shareware, continues to use it, but
refuses to pay for it.

The biggest problem area (assuming one can legally enforce
a shareware license) is the inability of the shareware author
to obtain the needed evidence of license violation against
someone using the shareware.  Also, the costs to pursue
such a court case are not trivial and, therefore, not likely
to encourage any such court case/test in the future.

To be sure, there are two distinct views: Those that believe
the law would sustain a license/contract violation judgement and
those that say it wouldn't.  Again, neither has any
shareware case law to point to.

Personally, I believe shareware is misnamed and would more
appropriately be called "Donationware" as I am one of those
that find it hard to belive that shareware licenses are
(1) enforceable at all, and (2) that there is virtually no
ability to provide supporting evidence of any specific shareware
violations for a court to rule on.

Others, I'm sure, will be happy to commentto the contrary :-)

Standard Disclaimer- Any opinions, etc. are mine and NOT my employer's.
-----------------------------------------------------------------------
Bill Sohl (K2UNK) BELLCORE (Bell Communications Research, Inc.)
Morristown, NJ             email via UUCP      bcr!cc!whs70
201-829-2879 Weekdays      email via Internet  [e-mail]


==============================================================================
From: [e-mail]           Date: 09-18-93 (12:52)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail]
(D. J. Bernstein) writes:

>Tee hee hee. Carl got it all _backwards_.

>MW (4,814,746) was filed three weeks _before_ LZW (4,558,302). MW
>entirely anticipates LZW. This is the example I was thinking of, and it
>was the first of Jean-loup's examples.

The patent application that issued as '746, which is application number
895,120, was filed on August 11, 1986.  What Mr. Bernstein is
apparently talking about is an earlier application number 499,943 which
was filed June 1, 1983.

>But Carl misread the patent history. He thought that MW was filed three
>_years_ _after_ LZW. In his haste to post, Carl failed to check what he
>was responding to. He posted a 559-line article to point out that LZW
>did not entirely anticipate MW.

>[chuckle]

>In article <27b5oo$[e-mail]> [e-mail] (Carl Oppedahl) writes:
>> It is said that the
>> application of the IBM patent ('746) "was first filed three weeks before
that
>> of Unisys" ('302).  But by my reading the time sequence is this:

[note here that Mr. Bernstein does not bother to quote what I actually
said.]

What is sort of disappointing about all this is that Mr. Bernstein's
perceived "gotcha" -- that I labored to show that '746 is not
anticipated by '302, when what he was saying was that '302 is
anticipated by (not "anticipates") '746 -- is meaningless.

To be clear about this, let's review the legal meaning (it is part of
the U.S. Patent law, found at 35 USC sec. 102) of "anticipates".  For a
reference (here, '746) to anticipate a patent (here, '302) it would have
to (a) contain every element of every claim of '302, and (b) have been
filed with the U.S. Patent Office more than a year before the filing
date of '302.

The application that issued as '746 was not filed more than a year
before -- it was filed three years afterwards.  And even its parent
application that was filed June 1, 1983 (the one that led to Mr.
Bernstein's triumphant "gotcha") was not filed more than a year before
-- it was filed only three weeks before.

So it is chronologically impossible for '746 to anticipate '302,
regardless of its content.

>You undoubtedly aren't aware that MW (4,814,746) was published by
>Victor Miller in Proc. Symp. Appl. Math., volume 34, 1986, p. 107, as
>the lecture notes from a talk he gave in public in January 1984. Surely
>you believe that patents filed more than a year after publication are
>not granted; so how would you explain a patent filed in 1986 on a method
>published in 1984?

>Anyway, your reading is simply incorrect. You say ``August 11, 1986 ---
>'746 application filed''; but in fact the first filing was June 1, 1983.

The application that issued as the '746 patent was filed August 11,
1986, as I said.  Its parent was filed June 1, 1983.  What you say is
true but trivial.  It does not support your argument.

>Of course, Carl, even if you figured out which patent came first, you
>still wouldn't know anything about data compression. So how could you
>be so sure that something in one patent wasn't claimed in the other?

It is quite generous of you to share with all of us your ability to know
what others know about and don't know about.  But if you were to turn
out to be wrong more than just once or twice (I do in fact know quite a
bit about data compression) there is the danger that people would stop
believing your statements.

--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: [e-mail]           Date: 09-18-93 (13:04)
SUBJECT:Re: A famous example of a bad software patent
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail]
(D. J. Bernstein) writes:

>In article <rcrw90-170993085842@node_142cf.aieg.mot.com> [e-mail]
(Mike Waters) writes:
>> Nowhere
>> has he cited any issued software patent which really is anticipated by a
>> published reference of any sort - including another patent!

>Wrong. I have cited, for example, the two data compression patents
>4,558,302 and 4,464,650. The first of these was anticipated by
>4,814,746---despite the fact that numerically 4558302 < 4814746.
>The second was anticipated by publication a few years before the patent.

>Both of these examples are well known among data compression experts.
>Everyone agrees that 4,814,746 anticipates 4,558,302. And everyone
>agrees that 4,464,650 was anticipated by its previous publication.

Well, as I mentioned in another post, '746 would have to claim priority
from a patent application filed more than a year before the filing of
the '302 application to anticipate it.  And that did not happen.  So by
definition '746 cannot anticipate '302.

>Now you claim that I have not cited any examples of software patents
>anticipated by published references. This is a very strong claim. It
>implies, for instance, that neither 4,558,302 nor 4,464,650 was
>anticipated---which is absurd.

>Mike, you seem to enjoy displaying your ignorance of one fact after
>another by claiming that each one, in turn, is false. You literally
>have no idea what you're talking about in any of the cases. You don't
>have the common sense or courtesy to check with experts before running
>your mouth. And you end up with strong rhetoric which falls flat in the
>face of reality.

Mr. Bernstein's statements would be easier to accept if they were
researched as well.

>Why are you so closed-minded about the possibility that software patents
>are a bad idea? Do you have a financial stake in one side of the issue?
>If it would create a conflict of interest for you to participate in
>reasoned discussion, don't bother posting anything.

It is a pity that Mr. Bernstein feels the need to attack the poster
personally, suspecting bad motives, when he could simply attempt to add
to the logical discussion.  If Mr. Waters' argument works, or does not
work, or is persuasive or non-persuasive, should not turn on whether we
(or Mr. Bernstein) think that Mr. Waters has good or bad motives for
making the argument.


--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: sohl,william h               Date: 09-18-93 (13:14)
SUBJECT:Re: (fwd) Subpoena served on Crypto
Organization: Bellcore, Livingston, NJ

The following is crossposted from misc.legal where I originally
came across it.  I'd think it is proper subject matter for
the misc.legal.computing group also.

In article <[e-mail]> [e-mail] (Kelly Goen) writes:
>Xref: netcom.com alt.wired:475 comp.lang.c:62219 alt.activism:50763
misc.legal:62914 alt.censorship:19449
>Newsgroups: alt.wired,comp.lang.c,alt.activism,misc.legal,alt.censorship
>Path: netcom.com!grady
>From: [e-mail] (Grady Ward)
>Subject: Subpoena served on Crypto
>Message-ID: <[e-mail]>
>Organization: Moby lexicons
>X-Newsreader: TIN [version 1.1 PL8]
>Date: Fri, 17 Sep 1993 06:59:50 GMT
>Lines: 180
>
>FOR IMMEDIATE RELEASE
>
>Subpoena served on Austin Code Works for
>material related to Moby Crypto.
>
>
>At 10:30 PM EDT  Thursday, 16 Sept 1993 Theodore R. Siggins,
>special agent for the Department of Treasury, U.S.
>Customs Service office of enforcement for
>Austin, TX [phone] served the following
>subpoena:
>
>United States District Court
>Northern District of California
>
>TO:
>
>Custodian of Records
>Austin Code Works
>11100 Leafwood Lane
>Austin, TX
>[phone]
>
>SUBPOENA TO TESTIFY BEFORE GRAND JURY
>documents of object(s)
>
>
>PLACE
>
>U.S. Courthouse & Federal Building
>280 South First Street
>San Jose, CA  95113
>
>Grand Jury Room 2115
>September 22, 1993  9:00 AM
>
>YOU ARE ALSO COMMANDED to bring with you
>
>Any and all correspondence, contracts, payments, and record,
>including those stored as computer data, relating to the
>international distribution of the commercial product "Moby
>Crypto" and any other commercial product related to PGP and RSA
>Source Code for the time period June 1, 1991 to the present.
>
>
>CLERK
>
>RICHARD W. WIERKING
>by deputy  clerk (illegible)
>
>This subpoena is issued on application of the United States of America
>Michael J. Yamaguchi
>United States Attorney
>
>Assistant U.S. Attorney
>William P. Keane
>280 S. First St., Suite 371
>San Jose, CA  95113
>[phone]
>s/a Robin Sterzer, Customs
>93-1348(SJ) 93-1(SJ)
>
>9 September 1993
>
>
>served by
>
>Theodore R. Siggins
>special agent
>Department of Treasury
>U.S. Customs Service
>Office of Enforcement
>P.O. Box 99
>Austin, TX 78767
>
>(FTS) 770-5502
>[phone]
>
>
>--------------------------- BACKGROUND ----------------------------
>
>The day before yesterday I faxed the following to the NSA:
>
>
>
>Grady Ward
>3449 Martha Ct.
>Arcata, CA  95521
>[phone]
>[e-mail]
>
>
>
>Charlotte Knepper
>National Security Agency
>301 688 7834
>FAX [phone]
>
>         14 Sep 93
>
>
>Re:  Moby Crypto and the Austin Code Works
>
>
>Recently you phoned Maria Guthery at the Austin Code Works (512-258-0785)
>to voice your concern about the publication for export
>of my product 'Moby Crypto'.
>
>As the editor and author of the compilation I made sure not to include
>any executable code -- only the algorithmic description in C source code
>that can be found (and exported) from scores of books and journals from
>the US distributed throughout the world.
>
>I believe that this material qualifies for the 'public domain' technical
>documentation exception under the current DTR rules.
>It seems to me that proscribing the publication of material because it is
>conveyed on a magnetic media rather than paper pulp is an NSA initiative
>that is both destructive to our basic freedom of expression and to the
>trade renaissance that Vice President Al Gore and the Clinton Administration
>are trying to foster.
>
>Even the Supreme Court recognizes the role of the computer media in
>protecting our freedom; beginning this 1993 calendar year all decisions
>will be provided in electronic form. Further, as you may know, it was
>recently decided that White House records in electronic form must be
>protected as a permanent archive of our government.  Clearly, magnetic
>media must be treated as a logical extension of the power and fundamental
>right of the print media.
>
>Please phone, fax, e-mail or post your ideas or any literature to me that
>you think useful if I have misapprehended the situation.
>
>Of course if you wish I will send you a gratis copy of the software
>(about nine megabytes of sources for DES, RSA, IDEA, Lucifer, PGP, SHA,
>and so on) for your advice and comments.
>
>Very truly yours,
>
>
>GRADY WARD
>
>
>--------------------- WHAT YOU SHOULD DO ---------------------
>
>NSA and the US Treasury has started a new, agressive campaign to
>prevent the spread of cryptographic ideas, algorithms, sources,
>and documentation.  The subpoena was served on the ACW in the night
>because they MIGHT have sold a copy of source code, already available
>worlwide, to a foreign national.
>
>If you value the freedom to disseminate ideas on both paper and magentic
>and electronic media, you should immediately preserve your right to
>have such knowledge by obtaining a copy of the source to Pretty Good Privacy
>and all other cryptographic materials before a possible complete blackout
>of such material is attempted by the US authorities.
>
>It is not yet against the law to possess source code to PGP, the world's
>foremost encryption application in the United States.  Source is available
>for a variety of platforms including MS-DOS, Unix, and Macintosh from
>the following sites:
>
>soda.berkeley.edu
>ghost.dsi.unimi.it
>nic.funet.fi
>ota.ox.ac.uk
>van-bc.wimsey.bc.ca
>
>and many other sites
>
>For more information about PGP,
>send a blank mail message to:
>[e-mail]
>
>
>
>--
>Grady Ward                                         [e-mail]
>3449 Martha Ct.                           compiler of Moby lexicons
>Arcata, CA  95521-4884            e-mail or finger [e-mail]
>[phone]  (voice/24hr FAX)               for more information



==============================================================================
From: [e-mail]           Date: 09-18-93 (13:25)
SUBJECT:Re: software product disclosure headache
Organization: PANIX Public Access Internet and Unix, NYC

In <27dalo$[e-mail]> [e-mail] (Ivan Filippenko) writes:

>Joe has designed and programmed (what he thinks is) a novel educational
>game / computerized learning environment, let's call it BARBAZ, for IBM-style
>personal computers.  BARBAZ is based on a known game in the "public domain,"
>but weds that game to a certain (also known) model of learning / philosophy
>of education in a manner that, Joe fervently believes, has potential for
>significantly benefitting the world's children.  Indeed, the marriage of
>the game, the philosophy, and the computerized context forms an important
>part of the novelty claimed for BARBAZ.

>In addition to his altruistic motives, Joe naturally has personal hopes
>for his product.  His principal objectives for BARBAZ are the following:

>  A. To make him as much money as possible (in part, to free him to pursue
>     further ventures in the spirit of BARBAZ without the encumbrances
>     of an unrelated job); and, relatedly,

>  B. To provide a concrete example of Joe's passion and capabilities
>     for presentation to potential employers in the fields of learning
>     research and educational technology.

>Ideally, Joe hopes both to make money directly from the product BARBAZ,
>*and* to use BARBAZ as a launch vehicle for joining a group pursuing the
>areas mentioned in objective B.  In the best (but not essential) scenario,
>such a group would become interested in using BARBAZ itself as a platform
>for some of its work.

>Having reached an implementation plateau for BARBAZ, Joe is now pondering
>his next steps, with a view toward protecting his enormous investment of
>time, labor, and creative energy (see A.) while at the same time making
>progress in the direction of objective B.  He is confused about the relative
>merits and demerits of the following options:

>  1. Register a copyright for BARBAZ.

>     - this only protects the source code itself (to which no one will
>       have access anyway in the forseeable future); it does not protect
>       the "idea," nor BARBAZ from reverse engineering

Well, it also protects the executable code and the screen display
generated by the source code.  But you are right not to have high
expectations for protecting "ideas" nor for stopping reverse
engineering.

>     - the subtleties are not entirely obvious (proper copyright date?
>       location of copyright notice? dependence on standard libraries
>       or commercial packages?)

Various Usenet groups have recently had threads on how to get the
copyright notice right.

>     - hire legal counsel?

See below.

>  2. File a patent application for BARBAZ.

>     - "Software patent?"  What chance would this have of being granted
>       in this situation?  Would Joe be barking up the wrong tree?

It would not be a big surprise if there were multiple inventions in your
software, each deserving of a patent application.

>     - Cost? (would definitely need to hire legal cousel)

Yes, several thousand dollars at least.

>     - is patenting typical, or inappropriate, for "educational software,"
>       and why?

People do it all the time.

>     - in what ways could this be viewed as a strength or liability for
>       BARBAZ by others, e.g.,  by existing educational software companies
>       or research centers whom Joe might approach ?

If you have a patent application pending (or more than one) it might
help to quiet some of the butterflies one often feels when going to a
meeting to reveal everything to some software publisher.

>  3. Approach another party without having filed for a patent, hoping to
>     negotiate a deal giving that party the rights and burdens (including
>     patenting) in exchange for a decent royalty and a continuing
>     intellectual/business relationship.

Perhaps readers who have been burned after revealing ideas to thrid
parties would like to offer their comments on this.

>     - somehow Joe imagines that this is the normal course followed by
>       independent software developers who do not want to deal with
>       legal / production / marketing hassles themselves

>     - is the potential long-term payoff decreased by not doing 2. first ?
>       or would 2. turn other parties off ?

>  4. Approach the directors of Joe's child's private school, who are likely
>     to understand the "idea," to see if they would like to serve as a
>     "test site" or "laboratory" for BARBAZ, and possibly make a name
>     for themselves.

>     - advantages: demonstrated success in the field - "proof of concept" -
>       would be a major selling/bargaining point with other parties
>       down the road

>     - possible pitfall: if this constitutes "public disclosure, it might
>       seriously undercut patent prospects: inside the U.S. after a year
>       and, perhaps even more worrisome, outside the U.S. immediately.

You are right to be concerned about this.  So many people pay attention
to it only *after* the public divulgation.

>In short, Joe would like to maximize his gains with respect to objectives
>A. and B. without heading off in some inappropriate direction -- e.g., maybe
>putting all plans for leveraging BARBAZ on hold while misguidedly applying
>for a patent just does not promise adequate returns, or vice versa ?

>As you can perhaps see, these issues are not merely legal ones, but have
>to do as much with how the social and business structures involved operate.
>Would hiring legal counsel right off the bat really help Joe resolve all
>these questions, or are there some clues to be found in the folklore of
>"how these things are usually done?" (netters!).

You might want to spend an hour or two with an experienced intellectual
property lawyer just to review all the issues you name, and others
(trademark, for example) that might come up.

>And one of Joe's problems is that both his money, and the time that he
>can afford to wait before taking some sort of action, are very limited.

>Thanks, on Joe's behalf, for putting up with this reasonably long post.
>We do hope that the problem it describes pertains to other people who
>find themselves in similar positions.

--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: [e-mail]           Date: 09-18-93 (13:30)
SUBJECT:Re: software product disclosure headache
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail] (johnson scott
andrew) writes:

>In article <27dalo$[e-mail]>, Ivan Filippenko <[e-mail]> wrote:

>>  1. Register a copyright for BARBAZ.
>>
>>     - this only protects the source code itself (to which no one will
>>       have access anyway in the forseeable future); it does not protect
>>       the "idea," nor BARBAZ from reverse engineering

>I believe copyrights protect object and executable code as well as source
code,
>but I'm not sure.  What I do know is that as copyright holder (Joe holds the
>copyright whether he registers or not), Joe can dictate terms of distribution
>and use of his product.  When people buy a software package, they are actually
>buying a lisence to use the software.  Thus, Joe can include a provision in
the
>lisence which forbids the lisencee (the customer) from reverse engineering,
>disassembling, decompiling, modifying, or otherwise monkeying with his
program.

>>     - the subtleties are not entirely obvious (proper copyright date?
>>       location of copyright notice? dependence on standard libraries
>>       or commercial packages?)

>A notice which says "Copyright 1993 Joe Whatzhizbucket, ALL RIGHTS RESERVED"
>displayed in a consipcuous place (or better, in several conspicuous places,
>such as on the printed documentation, on the floppy disks, on the box, and
>on the title screen of any executable) should suffice.  As to giving credit
>for standard libraries or commercial packages he uses, it depends on the
>library or package.  They should have the requirements spelled out in the
>documentation.

Er, getting the year part wrong (one should not automatically put down
1993) could lose one's rights.  Look in a World Almanac where the "year"
part goes on for half a page to see how complicated it can get.  Only if
the whole software were written in 1993 could one be sure that merely
putting 1993 would do.  See competent counsel about this if you are
tempted to rely on this advice.

>Testing your software won't cause you to lose any rights.  As software
>involves copyrights and not patents, "public disclosure" won't hurt you at
all.
>If it did, then the mere act of publishing a book would void the author's
>rights.

I suggest this is not quite right.  Much software does have the prospect
of involving patents.  Public disclosure could compromise those rights.

--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: [e-mail]           Date: 09-18-93 (13:30)
SUBJECT:Re: software product disclosure headache
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail] (johnson scott
andrew) writes:

>In article <27dalo$[e-mail]>, Ivan Filippenko <[e-mail]> wrote:

>>  1. Register a copyright for BARBAZ.
>>
>>     - this only protects the source code itself (to which no one will
>>       have access anyway in the forseeable future); it does not protect
>>       the "idea," nor BARBAZ from reverse engineering

>I believe copyrights protect object and executable code as well as source
code,
>but I'm not sure.  What I do know is that as copyright holder (Joe holds the
>copyright whether he registers or not), Joe can dictate terms of distribution
>and use of his product.  When people buy a software package, they are actually
>buying a lisence to use the software.  Thus, Joe can include a provision in
the
>lisence which forbids the lisencee (the customer) from reverse engineering,
>disassembling, decompiling, modifying, or otherwise monkeying with his
program.

>>     - the subtleties are not entirely obvious (proper copyright date?
>>       location of copyright notice? dependence on standard libraries
>>       or commercial packages?)

>A notice which says "Copyright 1993 Joe Whatzhizbucket, ALL RIGHTS RESERVED"
>displayed in a consipcuous place (or better, in several conspicuous places,
>such as on the printed documentation, on the floppy disks, on the box, and
>on the title screen of any executable) should suffice.  As to giving credit
>for standard libraries or commercial packages he uses, it depends on the
>library or package.  They should have the requirements spelled out in the
>documentation.

Er, getting the year part wrong (one should not automatically put down
1993) could lose one's rights.  Look in a World Almanac where the "year"
part goes on for half a page to see how complicated it can get.  Only if
the whole software were written in 1993 could one be sure that merely
putting 1993 would do.  See competent counsel about this if you are
tempted to rely on this advice.

>Testing your software won't cause you to lose any rights.  As software
>involves copyrights and not patents, "public disclosure" won't hurt you at
all.
>If it did, then the mere act of publishing a book would void the author's
>rights.

I suggest this is not quite right.  Much software does have the prospect
of involving patents.  Public disclosure could compromise those rights.

--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: sohl,william h               Date: 09-18-93 (13:17)
Subj: Re: crypto witchhunt?      Status: Public
Organization: Bellcore, Livingston, NJ


More on the "CRYPT" thing from misc.legal

In article <27d15r$[e-mail]> Shari Steele <[e-mail]> writes:
>To the 'net community:
>EFF is very concerned about the Customs Department-initiated grand jury
>investigation into encryption export violations.  Two U.S. companies have
>been subpoenaed to produce documents related to the "international
>distribution" of commercial products utilizing PGP and RSA source code.
>Neither of these companies are engaged in the international distribution
>of
>any illegal materials.  EFF is working with the concerned parties and is
>trying to find out the scope of the grand jury investigation.
>Unfortunately for us in this case, grand jury investigations are secret,
>so
>learning the scope is proving to be quite difficult.
>
>What we do know is this:
>
>Austin Code Works, a software publisher in Austin, Texas (heavy sigh), has
>been planning to publish a code document written by Grady Ward called Moby
>Crypto.  Grady describes Moby Crypto as simply containing descriptive
>source code, not executable object code, describing many cryptographic
>routines that are freely available around the world.  Most of this
>material
>has been released in print form already.  The important distinction seems
>to be that Moby Crypto will be released in machine-readable format.
>Austin
>Code Works has told Customs Agents that it does not intend to release Moby
>Crypto outside of the U.S., yet the company has been subpoenaed to release
>all documents related to this product.  (Incidently, if Moby Crypto
>contains no executable code, it should be exportable under ITAR, just as
>textbooks containing such materials are exportable.)
>
>ViaCrypt, a Phoenix, Arizona,-based (heavy sigh again -- man, does this
>ring familiar) software producer that has a license to sell software
>products that use the RSA algorithm, was issued a similar subpoena.
>ViaCrypt has recently contracted with Phil Zimmermann, creator of the PGP
>encryption code, to sell a commercial version of PGP.  ViaCrypt only
>distributes its products containing the RSA algorithm within the United
>States, since RSA is not exportable under ITAR.
>
>EFF has been in touch with Phil Zimmermann and his attorney, Grady Ward,
>and the owner of Austin Code Works.  We have advised everyone that there
>is
>nothing to hide and that they should abide by the subpoenas and produce
>the
>documents requested.  We will not know what the appropriate response
>should
>be until the grand jury makes its determinations.  In the meantime, we
>want
>everyone to know that EFF is committed to ensuring that the right to use
>and publish whatever encryption method an individual chooses to use is
>protected.  Jerry Berman, EFF's Executive Director, issued the following
>internal message this morning:
>
>>I've assured Phil that he is not alone, and I have talked with his
>attorney.
>>If Phil is charged with export control violations based on making PGP
>>available in the US on a non-commercial basis and it happens to get
>>published or copied overseas, First Amendment issues indeed may be
>joined.
>>As of now, ViaCrypt has done no "exporting" and does not intend to. I
>have
>>the subpoena.
>
>Indeed, EFF has copies of both subpoenas.  We will continue to keep you
>informed of what's going on as we learn the facts.  EFF is deeply
>concerned, and we want Phil and everyone else involved to know that they
>are not alone.  As soon as it becomes clear what specifically is being
>investigated, EFF will respond.
>Shari
>***********************************************************************
>******
>
>Shari Steele
>Director of Legal Services
>Electronic Frontier Foundation
>1001 G Street, NW
>Suite 950 East
>Washington, DC  20001
>202/347-5400 (voice), 202/393-5509 (fax)
>[e-mail]



==============================================================================
From: [e-mail]    Date: 09-18-93 (14:07)
SUBJECT:Re: software product disclosure headache
Organization: Computer Science Department, Oregon State University

In article <27fk4u$[e-mail]>, Carl Oppedahl <[e-mail]> wrote:
>In <[e-mail]> [e-mail] (johnson scott
andrew) writes:
>
>
>>Testing your software won't cause you to lose any rights.  As software
>>involves copyrights and not patents, "public disclosure" won't hurt you at
all.
>>If it did, then the mere act of publishing a book would void the author's
>>rights.
>
>I suggest this is not quite right.  Much software does have the prospect
>of involving patents.  Public disclosure could compromise those rights.
>
>--
>Carl Oppedahl AA2KW  (patent lawyer)
>1992 Commerce Street #309
>Yorktown Heights, NY  10598-4412
>voice 212-777-1330

I will defer to your opinion as you appear to be an expert in this arena.
However, it is the opinion of many in the computer science industry that
"software patents", that is, patents on specific computer algorithms, are
inherently damaging to the industry.  Many large corporations (i.e. Intel)
hold "patents" on various algorithms and ideas which are extremely intuitive or
blatantly obvious to any experienced programmer, or otherwise common knowledge.

One example frequently cited is the "XOR cursor".  The act of displaying a
cursor on a video screen without special hardware is inherently destructive to
the underlying data.  One way around this is to exclusive-OR the cursor data
with the background data.  As the exclusive-OR operation is reversible, one
need perform the operation again to restore the original screen when wants to
move the cursor.  Most grade-school programmers with a PC in their rooms can
figure this out.  Yet, it is patented by someone.

Another example is the so-called "Crawford patent", held by Intel.  It is
basically a patent on virtual memory--the process whereby an operating system
moves chunks of memory between RAM and a physical storage device (usually a
hard drive), so that the logical memory space can exceed the physical amount
of RAM.  Virtual memory is also a well-known technique to computer scientists,
as it is taught in every basic operating systems course.  However, Intel holds
a patent on it, and they use it to intimidate computer manufacturers who sell
machines using non-Intel processors.  According to Intel, anyone who sells a
computer system containing both a protected-mode processor (pretty much any
processor sold these days) and a multitasking operating system (again, with the
exception of MS-DOS, most operating systems are capable of multitasking)
violates this patent.  Thus, computer manufactures are forced to either use
Intel processors, or not bundle the operating system with the computer, forcing
the user to purchase it separately.

Personally, I think software patents are flawed, especially if they are applied
in this generic of a manner.  The ideal solution to this problem would be to
implement cross-lisencing in the computer industry, just like it is found in
the automotive industry.  This way, the consumer will benefit, and the
industry itself will benefit as well.  The only ones who WON'T benefit from
this
are the patent attorneys.


Comments?

/sj/


==============================================================================
From: [e-mail]            Date: 09-18-93 (13:24)
SUBJECT:Re: software product disclosure headache
Organization: Real/Time Communications

Option 3, all the way.  "Joe" does not want to be in the business of
copyrighting, trademarking, patenting, licensing, marketing, licensing, and
negotiating.  Joe wants to be in the business of BARBAZing.  He is likely
overestimating how much interest there may be in the world in stealing the
ideas in BARBAZ, and he is >definitely< overestimating both the interest in
and the practicality of such theft by software publishers.  If a publisher
wants the software, signing a contract with the author to publish it is far
more practical for them.  Coding their own version after seeing his would be
expensive and risky (program development is an uncertain process at best),
even stealing a copy of his code leaves them without the person who knows it
best available for modifications, bug fixes, upgrades and sequels, leaves
them vulnerable to a lawsuit, and puts up a big red flag to other software
developers that says "Don't submit your programs to us, we steal things."

Joe is one of the lucky ones, really.  He's FINISHED something.  A lot of
people never make it that far, and you can't sell anything unless you finish
something.  The only obstacle left is the possibility that not many people
will ever SEE what he's finished.  This can happen two ways - if it doesn't
sell well, or get marketed well, or distributed well...  But to take your
chances in that arena, you have to overcome the possibility of it never
getting published at all.  This is a thing FAR more worthy of being scared of
than getting your product stolen, because it is FAR more likely.  Shove
copies of the thing in front of as many potential publishers as you can!  If
you get more than one offer, great, pick your favorite.  But the goal is to
get that first offer.  But isn't sending out more copies going to make it
more likely some cigar chomping sleazeball will steal your hard work?  Let me
tell you...  I've worked at several publishers, and what's REALLY going to
happen is that a significant percentage of the copies you submit are going to
languish in a big pile with a bunch of other submissions, and in some cases
it will NEVER get looked at, or at best glanced at quickly by someone who's
in a hurry and isn't really interested.  If you only send it to ONE publisher,
it might be one of those, and then you have NO chance.

To recap, your real danger is not that Joe's voice (BARBAZ) will be heard too
widely, before he's ready.  The danger is that it will hardly be heard at all,
in a sea of thousands of people trying to say things.  He must shout BARBAZ,
shout it from the rooftops!  I've had a shareware package out for 6 months
now, and I haven't been shouting it loud enough, and that really bothers me.
(It can be downloaded from After Hours at [phone] in the adult library!
There, I feel better now!)  Go shout BARBAZ at publishers and quit worrying...


     Dr. Cat / Dragon's Eye Productions

==============================================================================
From: [e-mail]           Date: 09-18-93 (16:59)
SUBJECT:Re: software product disclosure headache
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail] (johnson scott
andrew) writes:

>In article <27fk4u$[e-mail]>, Carl Oppedahl <[e-mail]> wrote:

>>In <[e-mail]> [e-mail] (johnson scott
andrew) writes:
>>
>>>Testing your software won't cause you to lose any rights.  As software
>>>involves copyrights and not patents, "public disclosure" won't hurt you at
all.
>>>If it did, then the mere act of publishing a book would void the author's
>>>rights.
>>
>>I suggest this is not quite right.  Much software does have the prospect
>>of involving patents.  Public disclosure could compromise those rights.
>>
>I will defer to your opinion as you appear to be an expert in this arena.
>However, it is the opinion of many in the computer science industry that
>"software patents", that is, patents on specific computer algorithms, are
>inherently damaging to the industry.  Many large corporations (i.e. Intel)
>hold "patents" on various algorithms and ideas which are extremely intuitive
or
>blatantly obvious to any experienced programmer, or otherwise common
knowledge.

[XOR patent hauled out and publicly flogged]

[another example omitted]

>Personally, I think software patents are flawed, especially if they are
applied
>in this generic of a manner.  The ideal solution to this problem would be to
>implement cross-lisencing in the computer industry, just like it is found in
>the automotive industry.  This way, the consumer will benefit, and the
>industry itself will benefit as well.  The only ones who WON'T benefit from
this
>are the patent attorneys.

>Comments?

Reviewing how we got here, and oversimplifying what people said:

A asks "should I hold back from testing of my software out of concern
for losing patent rights?"

B says "you can't patent software, so don't worry about it."

I say "no, B isn't right, you should worry about whether you would
lose patent rights."

D says "software patents are bad."

If we are going to try to help A make a wise decision, I'm not sure how
D's comments help.  After all, it might be in A's interest to seek a
patent on A's work regardless of whether D's view is correct about
the social value of patents.

--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: [e-mail]             Date: 09-18-93 (17:12)
SUBJECT:Re: Advice: PAY and/or royalties?
Organization: Corporate Network Consulting, Inc.

In <arden.748372626@griffin> [e-mail] (Arden Sonnenberg) writes:


>I have an opportunity to develop software and am begining negotiations
>with the company.  They prefer to pay less up front and give me royalties.
>I've never been in this type of situation so I don't know what to
>expect.  Does anyone work this way that could pass on some advice to me
>or point me to some books that might help?  A sample contract might be nice.
>I'm also considering a lawyer.

The ONLY way I would consider royalties would be if there was a guaranteed
minimum and a time period at which that guaranteed minimum would take effect.


==============================================================================
From: D. J. Bernstein              Date: 09-18-93 (16:57)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: IR

In article <27fgg2$[e-mail]> [e-mail] (Carl Oppedahl) writes:
  [ as the conclusion of a convoluted 71-line article ]
> From Mr. Bernstein's statements one cannot reach the conclusion that
> '302 anticipates '746, and the statements suggest the opposite to be the
> actual situation, since the statements suggest that at least one claim
> of '746 is directed to MW2, and that MW2 cannot be found in '302.

Once again, Carl, you've managed to get everything backwards.

It is '746 which discloses everything in '302. When you painstakingly
prove that '302 does not anticipate '746, you are arguing with the wall.
Nobody has claimed that '302 anticipates '746. As Jean-loup stated:

: The LZW algorithm used in 'compress' is patented by IBM (4,814,746)
: and Unisys (4,558,302). The IBM patent application was first filed
: three weeks before that of Unisys. The IBM patent is more general,
: but its claim 7 is exactly LZW.

In response to these statements you have now posted six hundred lines
arguing that the Unisys patent does not anticipate the IBM patent. You
have also incorrectly stated the priority of 4,814,746 over 4,558,302.
Why don't you spend just a bit more time reading before you post?

---Dan

==============================================================================
FROM   :[e-mail]
SUBJECT:Re: The simplest shareware situation
Organization: IR

In article <[e-mail]> [e-mail] (Bill Cramer)
writes:
> What would the court have done had the state law allowed the making of
> archival copies, only provided protection for the life+50 term, and only
> permitted the licenses on federally protected works?

Who cares? If a shrinkwrap license doesn't attempt to take away the
rights of users guaranteed by Federal copyright law, why would the
vendor bother with it?

Shrinkwrap licenses attempt to force the owner of a copy of a program
to obey restrictive conditions (don't make backups, send the author a
``donation,'' etc.) imposed without his consent---because he has the
temerity to _use_ the program he bought. That's what I find offensive.
Conversely, I wouldn't really care about a shrinkwrap license which
stayed within the limitations of copyright law, because most users could
simply ignore it.

---Dan

==============================================================================
From: D. J. Bernstein              Date: 09-18-93 (17:42)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: IR

My apologies if I misused the term ``anticipates.''

The USPTO issues software patents which claim nothing beyond what has
already been disclosed in earlier software patents. As Jean-loup pointed
out, there are at least two examples among data compression patents, one
where the applications were filed just a few weeks apart.

Some people think that the USPTO's problems with software patents can be
traced to the USPTO's demonstrated lack of familiarity with the prior
art. But the duplicate patents prove that the problem lies much deeper.
The USPTO is simply unable to detect that two software patents cover the
same thing, even though all the information is available firsthand to
patent examiners!

---Dan

==============================================================================
FROM   :[e-mail]
SUBJECT:Re: A famous example of a bad software patent
Organization: IR

4,464,650, the LZ algorithm patent, was first filed in 1981. It covers
nothing beyond what the same authors published in IEEE Trans. Inf. Th.
in 1978.

4,714,846, the MW (both MW1 and MW2) algorithm patent, was first filed
on 1 June 1983. Co-inventor Miller states that he would have published
the algorithm whether or not patent protection was available.

4,558,302, the LZW algorithm patent, was first filed on 20 June 1983.
LZW is the same as MW1.

4,876,541, the AP algorithm patent, covers an algorithm which was
independently reinvented and republished---twice!

4,200,770, the Diffie-Hellman algorithm patent, covers an algorithm
which was published before the inventors even thought about patenting
it.

These are just a few examples of bad software patents. Society does not
gain by granting a patent on an idea ``whose time has come''; it will be
published and used without any interference from the patent system.

In article <27fijb$[e-mail]> [e-mail] (Carl Oppedahl) writes:
> In <[e-mail]> [e-mail]
(D. J. Bernstein) writes:
> >In article <rcrw90-170993085842@node_142cf.aieg.mot.com>
[e-mail] (Mike Waters) writes:
> >> Nowhere
> >> has he cited any issued software patent which really is anticipated by a
> >> published reference of any sort - including another patent!
> >Wrong. I have cited, for example, the two data compression patents
> >4,558,302 and 4,464,650.
  [ ... ]
> It is a pity that Mr. Bernstein feels the need to attack the poster
> personally, suspecting bad motives, when he could simply attempt to add
> to the logical discussion.

Excuse me? Just _look_ at what's been written. On the pro-monopoly side,
Waters makes an absurd claim about my supposed failure to cite bad
patents, and you do nothing except criticize my terminology and style.
On the pro-freedom side, I give _specific_ examples of bad patents---
with _patent numbers_ that anyone can use to verify the truth of my
assertions. That's what you see in the quotes above. What substantive
content have you or Waters contributed to this discussion?

---Dan

==============================================================================
From: [e-mail]         Date: 09-18-93 (19:11)
SUBJECT:Re: The simplest shareware situation
Organization: TheNews

In article <[e-mail]>
[e-mail] (D. J. Bernstein) writes:
>In article <[e-mail]> [e-mail] (Bill Cramer)
writes:
>> What would the court have done had the state law allowed the making of
>> archival copies, only provided protection for the life+50 term, and only
>> permitted the licenses on federally protected works?
>
>Who cares? If a shrinkwrap license doesn't attempt to take away the
>rights of users guaranteed by Federal copyright law, why would the
>vendor bother with it?
>
>Shrinkwrap licenses attempt to force the owner of a copy of a program
>to obey restrictive conditions (don't make backups, send the author a
>``donation,'' etc.) imposed without his consent---because he has the
>temerity to _use_ the program he bought. That's what I find offensive.
>Conversely, I wouldn't really care about a shrinkwrap license which
>stayed within the limitations of copyright law, because most users could
>simply ignore it.

Good point.  Hmm... but would the presence of such copyright-compatible
language give me a cause of action without resorting to the federal courts?

Bill Cramer

| 1257 Worcester Road, Suite 196      | "A man can't pull himself up
| Framingham, MA  01701  USA          |    by his bootstraps if he
| Internet: [e-mail]      |    can't even afford shoes."
| CIS: 70322,3412                     |


==============================================================================
From: [e-mail]           Date: 09-18-93 (20:01)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail]
(D. J. Bernstein) writes:

>My apologies if I misused the term ``anticipates.''

>The USPTO issues software patents which claim nothing beyond what has
>already been disclosed in earlier software patents. As Jean-loup pointed
>out, there are at least two examples among data compression patents, one
>where the applications were filed just a few weeks apart.

>Some people think that the USPTO's problems with software patents can be
>traced to the USPTO's demonstrated lack of familiarity with the prior
>art. But the duplicate patents prove that the problem lies much deeper.
>The USPTO is simply unable to detect that two software patents cover the
>same thing, even though all the information is available firsthand to
>patent examiners!

Fortunately for us all, even if what Mr. Bernstein says is true (that
two patent applications were pending at the same time, with claims
covering a single invention) there are ways to fix the problem.  Anyone
who wants to could submit information to the Patent Office to be posted
to one or both of the application files, regarding this claim.  That
costs nothing, and yet makes a clear record of the claim in case
litigation should ever arise.

Second, anyone who wants to could request the Patent Office to reexamine
either of the two patents, taking into account this supposed duplication
of claim coverage and disclosure.


--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: [e-mail]       Date: 09-18-93 (20:04)
SUBJECT:Re: software product disclosure headache
Organization: Stanford University CSLI

A familiar scenario.  I would second the advise of talking to an intellectual
property lawyer.  I think most will talk to you for an hour or so if you are a
perspective client and you can get all the details right.  While a patent
application is expensive (typically between $5000 and $10,000) you can reduce
some of that cost by doing some of the work (writing drafts and doing some of
the prior art search).

Regarding non-US software patents, all that I have heard and read indicate
that unless you have something really really special that they are not worth
the bother.  They are hard to enforce and the US is the biggest market and a
US patent protects one there.  Once you decide not to worry about non-US
patents you can disclose, get feedback, and you still have 1 year to file.

 -ken kahn

==============================================================================
From: [e-mail]            Date: 09-18-93 (20:46)
SUBJECT:Re: Advice: PAY and/or royalties?
Organization: NETCOM On-line Communication Services (408 241-9760 guest)

Chris Estep ([e-mail]) wrote:
: In <arden.748372626@griffin> [e-mail] (Arden Sonnenberg) writes:

: >I have an opportunity to develop software and am begining negotiations
: >with the company.  They prefer to pay less up front and give me royalties.
: >I've never been in this type of situation so I don't know what to
: >expect.  Does anyone work this way that could pass on some advice to me
: >or point me to some books that might help?  A sample contract might be nice.
: >I'm also considering a lawyer.

: The ONLY way I would consider royalties would be if there was a guaranteed
: minimum and a time period at which that guaranteed minimum would take effect.

At the risk of insulting Chris (which is NOT my intent), I must say that
I would interpret such a statement to imply that he has little confidence,
either in his own ability to develop a good product (in which case, perhaps
he shouldn't even be attempting this task) or in the client's ability to
market the product (in which case, perhaps he should avoid working for this
client).  Those are overly broad conclusions, I admit, but that's the
_impression_ that his statement makes to me.

I submit that a capable designer or programmer doing business with a solid
client should _consider_ a royalty basis, if offered.  Whether or not to
accept such an arrangement must depend on many factors, including the
willingness to accept some risk in return for potentially higher reward
if the product takes off.  I would certainly insist that the _expected_
total return in royalties would be substantially greater than the amount
I would accept in direct payment, where the client assumes all the risk
of success of the product.  Obviously, if the client isn't financially
sound or you distrust the client, then take your money as fast as you can
scoop it in, but then I'd question why you would do business with them.
Of course, these days, you may have to take what you can get.

I'm sure that books exist on this subject.  I hope someone can suggest
some; if not, ask your local librarian.

+-----------------------------------------------------------------------------+
| Don Ravey           [e-mail]               OBJECTS IN MIRROR       |

|                                                ARE CLOSER THAN THEY APPEAR  |
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From: [e-mail]               Date: 09-18-93 (23:53)
SUBJECT:Re: Advice: PAY and/or royalties?
Organization: Computer Solutions by Hawkinson

<In article:  <arden.748372626@griffin> -> [e-mail] writes:
>
> I have an opportunity to develop software and am begining negotiations
> with the company.  They prefer to pay less up front and give me
royalties.
> I've never been in this type of situation so I don't know what to
> expect.  Does anyone work this way that could pass on some advice to
me
> or point me to some books that might help?  A sample contract might be
nice.
> I'm also considering a lawyer.
>
> Other possibilites are being able to sell the product myself, maybe to
a
> different market.
>
> Thanks for your help.
>

Yes, get a lawyer, and also get an accountant.  Check out how well this
company sells.  You need hard facts before considering a mainly royalty
based contract.

You also will want to sit back and see why they would rather do business
this way.  Most companies would prefer NOT too.  The paying of
development money usually ear-marks the first 6 monthes to year of
sales.  Royalties go on for (or can go on) forever.  If they have only a
little invested, they may not push it as hard.  Everything has to depend
on the 'feel' you get with the people involved, and their track record.

Keep in mind that a 'royalty' payment is the most risky method of
payment.  Now, not only don't they have to pay you more if the project
is more difficult than previously considered, but you NEED too do it to
get anything.  Your holding yourself over the barrel.  Your risk, high,
theirs low.

On the flip, you COULD make a bundle.  Find out their sales figures for
previous ventures in a similiar line.  Check out their original
forcasts, how do they jive?  If the company usually forcasts 300% too
much, factor it in and see if there is anyway to make a profit.  Last
point to consider, if you develope software and so have a 'marketing'
company sell it, you can see upwards of 80% of the proceeds.  Compare
your risk with the potential gains.  If on the basis of the figures you
will not be able to recover your development time (in money) within a
year, its probably too risky.

Your risk is high, theirs low.  If the project is successfull, it will
cost them more than paying up front.  Since most companies presume a
project is going to be successfull, why would they want such an
agreement?  Is this their first product (risk VERY HIGH, potential gains
are high as well)?  Just the way they do business?  That why is
important.  Judge the risks against the probable (not potential,
probable) gains.

Keep your options open.  Being able to sell it yourself to another
market segment is a good step (if you can and are willing to sell).

Chris

---------------------------------------------------------------------------
Computer Solutions by Hawkinson
Internet:       [e-mail]
Phone:          [phone]                 Software Development
Fax:            [phone]
BBS:            [phone]
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==============================================================================
From: [e-mail]            Date: 09-17-93 (23:27)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Edward, Irene, Caiaphas & Ernest

In <[e-mail]>, [e-mail]
(D. J. Bernstein)  wrote:
>
> In article <[e-mail]> "Edward C. Kwok"
<[e-mail]> writes:
> > Seriously, its dangerous to let government decide what kinds of invention
> > "promote progress".
>
> But that's what the patent system is all about! The government has
> decided that certain inventions (those which are new, unobvious, etc.)
> promote progress. Surely you don't believe what you just said---you do
> seem to support the patent system as a whole, as do many LPF members.
>
> Do you retract your statement?

Of course not.  The patent system is based on the broad premise that granting
invention rights promotes progress, just as much as the free press system
promotes democratic process.  The government should not go around deciding
what kind of newspaper promote the democractic process.  In the same manner,
the government should not go around deciding what kinds of inventions
promote progress.


---------------------------------------------------------------------------

Edward, Irene, Caiaphas & Ernest
Asia-US Market Research Co.

==============================================================================
From: [e-mail]          Date: 09-19-93 (04:58)
SUBJECT:Re: A famous example of a bad software patent
Organization: Prescient Software, Inc.

In article <27fijb$[e-mail]> [e-mail] (Carl Oppedahl) writes:
>In <[e-mail]> [e-mail]
(D. J. Bernstein) writes:
>>4,814,746---despite the fact that numerically 4558302 < 4814746.
>>The second was anticipated by publication a few years before the patent.
>
>>Both of these examples are well known among data compression experts.
>>Everyone agrees that 4,814,746 anticipates 4,558,302. And everyone
>>agrees that 4,464,650 was anticipated by its previous publication.
>
>Well, as I mentioned in another post, '746 would have to claim priority
>from a patent application filed more than a year before the filing of
>the '302 application to anticipate it.  And that did not happen.  So by
>definition '746 cannot anticipate '302.

One thing that I find confusing here is that it seems Dan and Carl
are arguing past each other. Dan seems to be claiming that the
ALGORITHMS are the same, and that technical experts know this.
But Carl is focussed on something different--that the CLAIMS
are not the same.  Now it would seem to me that both could be
correct: namely that two inventors invent the same invention, but
that each makes different claims.

My understanding of the patent law suggests that this situation
while probably rare, can happen without being a legal
contradiction (patent attourneys please correct me).
I came up with the following thought experiment to
convince myself of this.  A few years ago, I discovered a process
that would create the gas NO. As a side-effect, it also creates
nitrated toluene. Let's say I file a for a patent, where I claim only
"a process for creating the gas NO consisting of the following
steps".  Independently, a week later Carl Oppedahl discovers the
same reaction, and he is excited because he was looking for ways to
nitrate toluene. He files with only the claim "a process for Nitrating
Toluene. Nothing I could find in the patent statutes seemed to preclude
both patents from issuing, even though the body of each patent might
discuss precisely the same process.

If I am correct with this thought experiment, it wouldn't move us
any further for Bernstein to produce more experts that say they
are the same algorithm, nor would it benefit us if Oppedahl showed
us more experts who say the claims are not identical. What would
have to happen is for Bernstein to either show the claims are
identical, or Oppedahl to show us the algorithms are not identical.

>
>>Why are you so closed-minded about the possibility that software patents
>>are a bad idea? Do you have a financial stake in one side of the issue?
>>If it would create a conflict of interest for you to participate in
>>reasoned discussion, don't bother posting anything.
>
>It is a pity that Mr. Bernstein feels the need to attack the poster
>personally, suspecting bad motives, when he could simply attempt to add
>to the logical discussion.  If Mr. Waters' argument works, or does not
>work, or is persuasive or non-persuasive, should not turn on whether we
>(or Mr. Bernstein) think that Mr. Waters has good or bad motives for
>making the argument.

It seems to me that both sides stand to gain financially. Bernstein has
already stated that having to do patent research, or license patented
technologies would cost him a lot of time, and effort. Those surely
can be translated into $$$ too. Achieving his goal of no software patents
will undoubtedly have a financial benefit to him too. Neither side
is free from accusations of personal benefit. Indeed that is exactly
why people are involved in trying to set policy in this matter--to see
that their interests are not sacrificed in meeting the other sides goals.


--
-- Scott L. McGregor  [e-mail]
   President   tel: [phone]
   Prescient Software, Inc. fax: [phone]
   3494 Yuba Avenue
   San Jose, CA 95117-2967

Prescient Software sells software products for group productivity and
offers consulting  & training in software process, project management
and design for usability.


==============================================================================
From: [e-mail]             Date: 09-19-93 (08:42)
SUBJECT:Re: Advice: PAY and/or royalties?
Organization: Corporate Network Consulting, Inc.

In <[e-mail]> [e-mail] (Donald Ravey) writes:

>Chris Estep ([e-mail]) wrote:
>: In <arden.748372626@griffin> [e-mail] (Arden Sonnenberg)
writes:

>: >I have an opportunity to develop software and am begining negotiations
>: >with the company.  They prefer to pay less up front and give me royalties.
>: >I've never been in this type of situation so I don't know what to
>: >expect.  Does anyone work this way that could pass on some advice to me
>: >or point me to some books that might help?  A sample contract might be
nice.
>: >I'm also considering a lawyer.

>: The ONLY way I would consider royalties would be if there was a guaranteed
>: minimum and a time period at which that guaranteed minimum would take
effect.

>At the risk of insulting Chris (which is NOT my intent), I must say that
>I would interpret such a statement to imply that he has little confidence,
>either in his own ability to develop a good product (in which case, perhaps
>he shouldn't even be attempting this task) or in the client's ability to
>market the product (in which case, perhaps he should avoid working for this
>client).  Those are overly broad conclusions, I admit, but that's the
>_impression_ that his statement makes to me.

It's not a matter of confidence, but a matter of loss of both autonomy and
remuneration for work performed.  Basically, this client wants the
developer to share the risk with him without giving him any responsibility
for the marketing.  I am just saying that I wouldn't go into business with
someone without being a real "partner".  A royalty situation is a
something-for-nothing proposition with the client.

I've been in situations such as these and been burned, so I am speaking
from experience.  No matter HOW MUCH you may know and trust the individual
doing the marketing, you will eventually be "just an employee" of sorts.
If you want to go into business with them, demand stock AND royalties.
You should have some kind of remuneration other than "future wealth promises".


>I submit that a capable designer or programmer doing business with a solid
>client should _consider_ a royalty basis, if offered.  Whether or not to
>accept such an arrangement must depend on many factors, including the
>willingness to accept some risk in return for potentially higher reward
>if the product takes off.  I would certainly insist that the _expected_
>total return in royalties would be substantially greater than the amount
>I would accept in direct payment, where the client assumes all the risk
>of success of the product.  Obviously, if the client isn't financially
>sound or you distrust the client, then take your money as fast as you can
>scoop it in, but then I'd question why you would do business with them.
>Of course, these days, you may have to take what you can get.


Again, it's not a matter of trust or distrust.  Most programmers do large
projects so they can put food on the table.  A client shouldn't expect a
man to give up his source of income in the promises of future gain, when
they are only promises.  Like I said before, if you want me to go into
business with you, I want to own a good part of the company (since I'm
making the company's product).

(and no you didn't offend me.)  :)

Chris

--
Christopher Estep                 |  Corporate Network Computing, Inc.
Senior Consultant                 |  2775 W. Dickman Rd.
[phone]                    |  Battle Creek, MI 49015