High Voltage Shareware/high1.zip/high1/DIR9/PATENT09.ZIP/PP6.CAP

Internet Message Format | 1993-09-22 | 103KB

From: [e-mail]    Date: 09-19-93 (15:11)
SUBJECT:Re: A famous example of a bad software patent
Organization: Dept. of Math, Harvard Univ.

In article <rcrw90-150993085938@node_142cf.aieg.mot.com>
[e-mail] (Mike Waters) writes:
>
>The various Soviet Institutes were extremely good at discovering scientific
>principles and publishing papers, but the Soviet economy was hardly
>innovative as far as acxtually producing products.

This is of course nonsense.  The research institutes and manufucturing
industries in the Soviet Union, developed and used various innovative
industrial processes, and Western companies were eager to learn about and
license some of these once the USSR started opening up in the 1980's.
Note that the USSR did not honor nor grant patents or copyrights of any
sort.



==============================================================================
FROM   :[e-mail]
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: IR

In article <27gb0v$[e-mail]> [e-mail] (Carl Oppedahl) writes:
> 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.

As usual, Carl hasn't paid the slightest attention to what he's
responding to.

There is a theory that the USPTO's incompetent handling of software
patents is caused by the USPTO's ignorance of the prior art---and thus
can be fixed if Congress throws money at a USPTO prior art database.

I didn't bring up duplicate software patents as a big _problem_ to be
_fixed_. I brought them up to disprove the theory: obviously the USPTO
cannot rely on ignorance as an excuse for duplicate software patents.
The problems of software patents must thus lie deeper. That's all.

---Dan

==============================================================================
From: [e-mail]    Date: 09-19-93 (21:39)
SUBJECT:Re: Query: legal status of shareware fee request
Organization: Amdahl

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

> In article <[e-mail]> [e-mail]
(Terry Carroll) writes:
> > The legal requirements are uncertain.  Anyone who tells you otherwise
> > is full of it.
>
> Agreed on both counts. Very few computer-related areas of law have been
> litigated to the extent that anyone is _certain_ of how the next case
> will be resolved.
>
> Nevertheless there are many reasons to _predict_ that judges will rule
> one way or another. It's more useful to bring those reasons to light,
> and discuss their merits, than to crawl into a shell just because you're
> not _certain_.

It's _very_ uncertain, Dan.  There are very sound arguments in favor of
both sides of the question.  There is no sound basis for confidently
predicting that either side would prevail, and that is the answer that
must, in all intellectual honesty, be given to anyone asking this
question.

==============================================================================
From: [e-mail]    Date: 09-19-93 (00:18)
SUBJECT:Re: A famous example of a bad software patent
Organization: Motorola MCG, Urbana Design Center

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

|   A patent monopoly is not good in and of itself. It violates everyone's
|   _right_ to copy. Society tolerates this intrusion only in the hope
|   that it will speed the progress of science. As a corollary it must
|   tolerate this intrusion only _so far as_ it will speed the progress of
|   science.
---

For what it's worth, with or without the Constitutional justification
for patents, I think if you surveyed the American electorate you would
find wide support for the idea that an inventor should have protected
use of her invention.  I'm not saying the present law is ideal or that
everyone would agree it was the best law possible, but I do think most
people would support patents as "fair".

I also suspect that Congress could find grounds for supporting patent
and other intellectual property laws whether specifically called out by
the Constitution or not and that by dwelling repeatedly on the
Constitutional language you are ignoring other legitimate regulatory
interests of the Federal government.

Not that it matters, of course, since the Constitution did give Congress
specific scope to establish patents and left it to Congress's discretion
to work out the details.
--
scott preece
motorola/mcg urbana design center 1101 e. university, urbana, il   61801
phone: [phone]     fax: [phone]
internet mail: [e-mail]

==============================================================================
From: [e-mail]        Date: 09-19-93 (23:20)
SUBJECT:New organization helps inventors avoid being ripped off
Organization: The World Public Access UNIX, Brookline, MA

    A NEW ORGANIZATION HELPS INVENTORS AVOID BEING RIPPED OFF

    Wall Street Journal 9/15/93,  B2

    For years, amateur inventors have been plagued by so-called invention
    marketing companies that charge plenty for worthless services.  Critics
    say such firms still flourish despite periodic crackdowns by the Federal
    Trade Commission and state law enforcers.  Often, a brush with
    authorities, the companies simply change their names or locales.

    Enter Robert Lougher, president of Inventors Awareness Group in West
    Springfield, Massachusetts.  He says he formed the group last year to
    warn small inventors about possible abusers by invention marketing
    companies.

    Mr. Lougher recalls that he was once part of the problem.  After
    retiring from the Air Force, he joined an invention-marketing concern
    as a telemarketer and later became a marketing director.  He says he
    quit in disgust after 18 months - and two weeks later, launched his
    crusade.

    Since December, he and a partner have spent $70,000 of their own money
    to run warning messages in the same publications used by invention
    marketing companies.  Mr. Lougher says his organization also has sent
    out 15,000 free pamphlets on commercializing inventions.

    Inventor groups praise Mr. Lougher's efforts.  "I was very suspicious
    at first, but he has proved his worth 100 times over", says Bobby
    Toole, chairman of the United Inventors Association of the U.S.A. in
    St. Louis.
--
**************************************************************************
 Greg Aharonian                                      [e-mail]
 Source Translation & Optimization                            617-489-3727
 P.O. Box 404, Belmont, MA 02178

==============================================================================
From: [e-mail]             Date: 09-20-93 (01:25)
SUBJECT:Re: Advice: PAY and/or royalties?
Organization: NETCOM On-line Communication Services (408 241-9760 guest)

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.

      Personally, I made a lot of money that way.  But that was in the
early 1980s, when there was a huge vacuum of new compute power waiting to
be filled with software.

      There are three basic problems with a royalty deal.  First,
avoiding being ripped off.  Second, taking the gamble that the product
will sell well.  And third, handling the relationship between the two
parties as the product progresses.

      Reading "Patent it Yourself", from Nolo Press, gives a view of
the rip-off problem.  You need appropriate contractual protection.

      Second, you're taking a financial risk.  That's a business
decision.

      Third, you need to figure out how the relationship continues or
winds down as the product goes on.  Do you get stuck with a continuing
maintenance commitment?

      It's also worth looking into the tax considerations.  Royalties on
a copyrighted work are ordinary income.  You may want to structure the deal
in some other way for that reason.

     John Nagle

==============================================================================
From: [e-mail]              Date: 09-20-93 (06:52)
SUBJECT:Re: Bay Area software patents by companies and law firms
Newsgroup: misc.legal.computing

Enough has been said on LZW (4,558,302) and MW (4,814,746).
Carl Oppedahl has put in my mouth words I did not say
("Gailly is saying that for _each_ claim of '746, it is
the case that everything in the claim is found in '302") but
I think that the debate does not benefit from being continued
at this level.

However, I cannot let one of Carl Oppedahl's assertions remain unchallenged:

> I have looked and looked at the fifteen claims of the '881 patent, and
> cannot find one of them, let alone all of them, in the '745 patent.

I assert that Gibson & Graybill 5,049,881 does not contain any
invention which is not already disclosed (I mean disclosed, not
claimed) in Waterworth 4,701,745, and consequently that the claims
of '881 should not have been granted because they fail the novelty
requirement. You assert that '881 does in fact contain novelty in all
of its claims. I won't ask you to substantiate your assertion for all
claims, but could you do it just for claim 12 of '881? What is the
novel and non-obvious invention in this claim?

Jean-loup Gailly
[e-mail]

==============================================================================
From: [e-mail]    Date: 09-20-93 (12:00)
SUBJECT:Re: The simplest shareware situation
Organization: Amdahl

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

> To quote Patterson & Lindberg, The Nature of Copyright---A Law of Users'
> Rights, 1991:

Just as a word of warning, from reviews I've read of this work,
Patterson and Lindberg reportedly argue for a broad interpretation of a
user's rights in a work, and a more narrow interpretation of the right
of the copyright holder.  Be aware that this interpretation may or may
not match the law of your jurisdiction.


==============================================================================
From: [e-mail]        Date: 09-20-93 (13:25)
SUBJECT:Prior art status of student theses
Organization: The World Public Access UNIX, Brookline, MA

    Here's an interesting summary of the prior art status of student theses.
It came up in a lawsuit between Du Pont and Cetus over the polymerase chain
reaction process [19 USPQ2d 1185]:

    Publication does not require dissemination in books or journals.
    Rather, given the advanced technology in information storage and
    retrieval, the courts regard "public accessibility" as the touchstone
    in determining whether a reference constitutes a printed publication
    under 35 USC 102 (b).  In Hall, for example, the court found that a
    doctoral thesis that had been indexed, catalogued and shelved in the
    Freiburg University library was sufficiently available to the relevant
    interested public to constitute prior art.

    Defendant cites several cases in which courts have found various
    scholarly publications not to be prior art, but these cases are clearly
    distinguishable.  In 'Application of Boyer' [196 USPQ 670], the court
    held that a graduate thesis held in a university library was not prior
    art where, as of the critical date for availability, it had not yet
    been catalogued or shelved and was available only to the student's
    thesis committee.

    The court in 'In re Cronyn' [13 USPQ2d 1070], also cited by defendant,
    held that undergraduate senior theses filed in the college's main and
    departmental libraries were not printed publications.  It found that
    the theses had not been "either cataloged or indexed in a meaningful
    way", since they were referenced only by index cards filed alphabetically
    by author and held in a shoebox in the chemistry department.  The court
    distinguished 'Hall', in which doctoral dissertations had been indexed,
    catalogued, and shelved, and noted that such systematic storage and
    indexing is the "critical difference" in determining whether a document
    is a "printed publication".
--
**************************************************************************
 Greg Aharonian                                      [e-mail]
 Source Translation & Optimization                            617-489-3727
 P.O. Box 404, Belmont, MA 02178

==============================================================================
From: [e-mail]         Date: 09-20-93 (11:41)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Motorola IPD

In article <bhayden.748345737@teal>, [e-mail] (Bruce Hayden)
wrote:

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

> >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).

No, as far as I can tell Dan uses rules like "everyone knows that" or
"functionally equivalent" to determine anticipation.  That is certainly not
what *I* was taught!  Certainly if it is just rewording then there could be
anticipation, but a system which merely does something similar or does the
same thing in a different way is hardly anticipation in my estimation!
(Depending on just what is claimed of course).

Together with many lines of flames about my ignorance compared to Dan's
clearly superior insight I have finally gleaned some specifics about claim
7 on one of the patents.  I plan to examine that in detail and form my own
opinion.  My prevous examination of the two patents was based on some vague
assertion about "equivalent", and the two patents clearly do similar things
(data compression), but have differing approaches to the problem.  I don't
know if claim 7 is anticipated or not at this point.  If not I anticipate
another few months of exchanging flames with Dan to find out just why he
thinks claim 7 is anticipated.

Not a very efficient method of eliciting information, but one which has had
quite unexpected results in the past.  For example, a few years ago I found
quite a body of research on the question of the effects of pornography as a
result of a similar exchange with someone who claimed that there were
"hundreds of studies showing pornography causes [all kinds of dire
things]."
There certainly are hundreds of studies, but they show no such thing!
Appart from the "studies" which are essentially opinions of those profiting
from the "crusade".  Such notables as Jum Bakker and Charles Keating being
among those authorities BTW.

I have no idea if there is a parallel, but it will be interesting to find
out!


> The point? In complex systems, it is very easy to miss anticipating
> patents unless you know exactly what you are looking for.

Certainly, and of necessity a patentability search is quite limited.
However Dan's claim is that the USPTO lacks the expertise to detect an
invalid patent even when they are made aware of the problem.  The answer to
that should be clear from the record.

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]         Date: 09-20-93 (12:07)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Motorola IPD

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

> 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!

You make these sweeping conclusions, but it is yet to be proven that this
is so.  Certainly it is not clear from what you have posted, only that Dan
B. thinks it is so and will flame anyone who doesn't agree!

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]         Date: 09-20-93 (12:17)
SUBJECT:Re: A famous example of a bad software patent
Organization: Motorola IPD

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


>
> 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?

Please don't put words in my mouth Dan - I said that you have refused to
supply any details to allow the rest of us to evaluate your conclusions.
You still refuse to do so beyond endless lists of numbers of patents which
you claim to be bad - in *your* opinion.  No more than *your* opinion
though, no analysis of the reasoning beyond "everyone knows" or "you are
either biased or ignorant for even questiolning me".

Dan if that is the best you can do, I see why you have a problem with
allowing people who really invent things from preventing those of lesser
ability from copying their inventions!

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]         Date: 09-20-93 (12:39)
SUBJECT:Re: A famous example of a bad software patent
Organization: Motorola IPD

In article <[e-mail]>,
[e-mail] (Tal Kubo) wrote:

> In article <rcrw90-150993085938@node_142cf.aieg.mot.com>
> [e-mail] (Mike Waters) writes:
> >
> >The various Soviet Institutes were extremely good at discovering scientific
> >principles and publishing papers, but the Soviet economy was hardly
> >innovative as far as acxtually producing products.
>
> This is of course nonsense.  The research institutes and manufucturing
> industries in the Soviet Union, developed and used various innovative
> industrial processes, and Western companies were eager to learn about and
> license some of these once the USSR started opening up in the 1980's.
> Note that the USSR did not honor nor grant patents or copyrights of any
> sort.

This is, of course, total nonsense.  Sorry, but I think response in kind is
warranted.

First the Soviet Union did indeed grant patents internally.  They were
extremely slow to issue and very few were granted, but they did have such a
system and as far as I know honored those patents which ultimately did
issue.  Soviet inventors however were strongly encouraged to obtain
somethig called an "Invention Ceertificate" instead which acknowldged them
as inventors but carried no property rights.  As far as I know no patents
were ever granted to a Soviet Citizen.

Secondly, clearly there were things which were unknown outside the SU.  For
the most art I think you will agree though that they were not related to
producing the kinds of products which non-Soviet commerce found useful.
Soviet computers and software for example were almost exclusively copies
from U.S. or European designs.  The only exception that I can think of is
the game "NYET" which made the inventor wealthy due to sales outsite the
Soviet bloc.  NYET was copyrighted but never patented as far as I know.

I think a even a short visit would show the difference in industry however,
there simply were never the goods available in the Soviet Union which have
been available elsewhere.  (I avoid the term "West" because the same is
true of countries such as Japan, and Singapore).

I don't claim that patents caused this entire difference, but I do note
that no country without an active patent system has been what I would call
an industrial leader in the world.

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]     Date: 09-20-93 (16:28)
SUBJECT:Re: A famous example of a bad software patent
Organization: Silicon Graphics, Inc.  Mountain View, CA


In article <[e-mail]>,
[e-mail] writes:

> Society tolerates this intrusion only in the hope
> that it will speed the progress of science. As a corollary it must
> tolerate this intrusion only _so far as_ it will speed the progress of
> science.
>
> If (as you seem to argue) a patent monopoly _were_ good in and of
> itself, then why would it be limited to 17 years?

That was no my point at all (nor even my means;-).  For example, I
agree that, wherever the means fails to produce the desired end, the
means should be abandoned.

My point, rather, was that (a) I believe in the general efficacy of
profit to motivate many things, (b) I believe patents, in general, put
the profit motive to effective social use, and (c) it takes a very
convincing whole-system story to overturn that expectation; a few
counter examples are not enough (human nature is quite perverse enough
to provide counter examples to nearly everything!).  Lacking a really
thorough set of data on the overall effect, anecdotes and individual
cases are merely warning signs attracting greater scrutiny, not
conclusive arguments.


Jack Repenning        M/S 1-875      [e-mail]
Silicon Graphics, Inc.        x3-3027      Off:[phone]
Visual Magic Division       Fax:[phone]

==============================================================================
From: [e-mail]      Date: 09-20-93 (16:46)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: The Center for Advanced Computer Studies

I will appreciate some answers from the patent gurus.


How much money is required to take a patent in software?
What kind of aspects can be patented?
Is it within the grasp of an individual,  or only a large corporation
can do it?

-Suresh


========================================================================
Suresh Damodaran-Kamal                    Holler: 318-231-5809(O)
P.O.Box 42322                               318-269-9787(H)
Lafayette, LA 70504               Email:[e-mail]

==============================================================================
From: [e-mail]                Date: 09-20-93 (12:47)
Subj: Email search precedents
Organization: Octel Communications Corporation


Hey gang,


I'm not a lawyer, and don't wanna play one on the net! However, my company
is faced with a potential court ordered search of our email messages. I believe
there's been some recent cases that are similar, and I'd like to find out what
happened. Am I really gonna have to dig thru all our backups? Or possibly worse
yet, will someone else dig thru all our backups and find that email I sent
to my lover? Please, I don't want to start the eternal email confidentiality
debate, but I would appreciate pointers to recent cases involving email
searches.

cheers,
jfd
--
John F. Detke, [e-mail] | "Solaris 2.0, its enough to make you leave
Octel Communications Corp |  the company"
 890 Tasman Dr. M/S 5-4  | -- Rob Kolstad
Milpitas CA 95035  |

==============================================================================
From: [e-mail]     Date: 09-20-93 (16:32)
SUBJECT:Re: A famous example of a bad software patent
Organization: Silicon Graphics, Inc.  Mountain View, CA


In article <27l79e$[e-mail]>, [e-mail] writes:

> My point, rather, was that ...

Sorry, here's a more germaine statement of my point (got the threads
of this discussion fumbled):

If the law establishes a means to an end, and you undermine the means,
you also undermine the end.  If there is no effective
commercialization, then there is no inducement, and the end is not
served.  The means is not the justification of the law, but the
implementation and enforcement of the law must make the means
credible, or the end will never follow.


Jack Repenning        M/S 1-875      [e-mail]
Silicon Graphics, Inc.        x3-3027      Off:[phone]
Visual Magic Division       Fax:[phone]

==============================================================================
From: Peter Desnoyers              Date: 09-20-93 (15:20)
FROM   :[e-mail]
SUBJECT:Re: A famous example of a bad software patent
Organization: Motorola Codex, Canton, Massachusetts

[e-mail] (Scott E. Preece) writes:

>For what it's worth, with or without the Constitutional justification
>for patents, I think if you surveyed the American electorate you would
>find wide support for the idea that an inventor should have protected
>use of her invention.  I'm not saying the present law is ideal or that
>everyone would agree it was the best law possible, but I do think most
>people would support patents as "fair".

Funny thing, that - all the patents I've noticed mentioned in this
discussion have been held by large corporations, rather than
individual inventors. If you surveyed the American public as to
whether large corporations should have protected use of individual
inventors' works, your answer will probably be a lot different.

For that matter, if you ask the public whether it should spend their
tax dollars on intellectual property (especially e.g. only of foreign
firms) that it could copy for pennies, you can probably guess what the
answer would be.

I'm not arguing that either step (denying patent protection to
corporations, or government immunity to intellectual property laws)
would be a good idea - just that arguments of the form "survey the
American public" are often flawed.

    Peter Desnoyers
--

==============================================================================
From: [e-mail]         Date: 09-20-93 (15:05)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Motorola IPD

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

> In article <rcrw90-170993085115@node_142cf.aieg.mot.com> [e-mail]
(Mike Waters) writes:
> > Which neatly undermines the argument that software is somehow "special"
> > IMHO!
>
> Entirely illogical. Just because _one_ aspect of software is shared by
> other fields doesn't mean that software is just like everything else.

> A casual look at the LPF's _Against Software Patents_ paper reveals

I recommend a more than casual look at the rebutal "Debunkin the Software
Patent Myths" by Paul Heckel, author of one of the patents attacked in the
first article.  He does a good job of researching the facts on the various
patents and debunking the myths propagated in the first article.

> several characteristics of software: 1. Until recently, patents were not
> used in programming. 2. Programs are protected by copyright. 3. Many
> commonly-used programming techniques do not appear in the literature.
> 4. A man-year of programming can produce a huge system (say 100,000
> components) which could easily infringe hundreds of patents. 5. Programs
> have essentially zero copying cost. 6. Programs are fundamentally
> impossible to classify by their end results. 7. In programming,
> independent reinvention is commonplace.

I will agree with 1. That alone seems unique to software.  "Recently" of
course means 20 years ago when the fist IBM software patents were filed.

2 is also true of any other area of technology.

3 is hardly an advantage, it is the very problem that patents were designed
to solve!  In other words this merely restates #1

4. Also applies to any large project, a highway, a new airplane, a new
computer.

5. Circuit designs for one cost nothing to incorporate at the design stage
of a new product.   Paper clips, toy whitles and games are a few other
patented things which have the same characteristic.

6. Often stated, but not substantiated.  Dan may have trouble making the
distinction, but he seems to have trouble backing up this assertion with
more than handwaving and flames.

7. Re-invention hardly adds to any form of progress!  To me this is more of
an indictment of lack of progress than it is a desirable characteristic of
software, it is reven less of a necessity!

> What else shares these characteristics? Business methods, perhaps, and
> mathematics---neither of which is patentable.

No I have given some examples - there are quite a few others.  I see very
little difference between "software" and circuit designs except that
circuit design has always been considered patentable.

> And the fact that software is special is not an ``argument''; it's just
> a summary of the situation. It means that the proposals to eliminate
> software patents are not proposals to eliminate _all_ patents.

Yet you seem totally unable to support your position with any sort of
factual basis.  "Proof by repetition" was once called the "Big Lie" methode
by its deisreputable inventor.

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]    Date: 09-20-93 (19:28)
SUBJECT:Re: A famous example of a bad software patent
Organization: Bureau of Mineral Resources

[e-mail] (Scott L. McGregor) writes:
> No, all the inventor said was that the patent didn't encourage him
> to invent it.  However, unless I missed a reply, Dan failed to
> ask the question of whether it encouraged someone to commercialize it.
> The constitution doesn't say to encourage invention, it says to
> encourage progress.  There is support for the position that the framers
> intended progess to mean more than invention--to mean widespread adoption
> and commercialization. Certainly the benefits chosen are better suited to
> the progress=commercialization interpretation than to the progress=invention
> interpretation. Dan is of course entitled to his view that the
> progress=invention view is what matters. But it is just one possible
> interpretation--and Dan's evidence is insufficient to rule out the
> possibility that the patent DID serve the legislative purpose under the
> other reasonable interpretation of the term progress.

I disagree with both interpretations.  I would like to think that
"progress = widespread use" is a far more useful interpretation, if you
assume that progress is meant to benefit society.  Certainly, if an
invention does not get widespread use, no further inventions can spring
from it, and so no ongoing "progress" is achieved.

If you are after "scientific progress" in particular, the problem is
even worse.  Science is done by influencing folks.  You make a
prediction (an idea) and spread it around a widely as you can, in an
effort to influence folks to verify your predictions.  If folks confirm
that your predictions are usefully accurate, and use them, you have
made scientific progress.  (Ideas that are confirmed as not working are
also progress, since we then know where not to look.)  If this spreading
around of ideas were to stop, we would have no more science, let alone
scientific progress.

The patent systems grants a limited monopoly for the purpose of
rewarding the invertor for *sharing* her invention - in the form of
license fees - so that the invention becomes more widely known and thus
more widely used.  However, patents like the RSA patent and some other
s/w patents, are being used to *restrict* use of the invention.  The
inventors are taking their reward from the commercial monopoly, rather
than licensing the invention and thus sharing it.  This is why they are
bad, they are doing exactly the opposite of what patents (as I
understand) are meant to achieve.

A second problem I have with s/w patents is independent invention.  If
you have an obligation to pay a license fee (or stop using the
invention) *after* you get caught, surely you had that obligation
*before*, too.  Rather like speeding in your car, it is always wrong,
but the fine applied if and only if you are caught (in signal theory
terms, an aliasing problem).  Now, if I have an obligation not to
infringe s/w patents (with or without being caught), but do not have
the resources to do a papent search for every line of code you write,
how can you ever write any code with a clear conscience?  My conclusion
is, again, that s/w patents *restrict* the use of s/w inventions, and
thus s/w patents are all "bad".

Universities patenting *anything* is just as bad.  Firstly, it makes
academics secretive (of what use is a silent lecturer?).  Secondly,
academics are chronically broke, and can't afford any other
universities' licensing fees, and thus can't afford to confirm or deny
scientific reasearch done elsewhere (thus, no science).
Universities already have "sharing" mechanisms - lectures, conferences,
papers, books - and do not need another.

(See the .au in my address?  I am lucky Australia does not (yet) have a
s/w patent treaty with the US.  Nor do I ever want one!)

My favorite example of a "bad" s/w patent (sorry, no number handy) is
the "spreadsheet natural order recalc" patent.  The "natural order" is
a directed acyclic graph with depth-first traversal.  This idea is
obvious and huge amounts of prior art existed (just look at "make" and
it various clones, or anything else using DAGs) yet it was granted.

Peter Miller   UUCP     uunet!munnari!bmr.gov.au!pmiller
/\/\*          Internet [e-mail]
Disclaimer:  The views expressed here are personal and do not necessarily
        reflect the view of my employer or the views of my colleagues.

==============================================================================
From: D. J. Bernstein              Date: 09-20-93 (18:59)
SUBJECT:Re: Query: legal status of shareware fee request
Organization: IR

In article <[e-mail]> [e-mail]
(Terry Carroll) writes:
> It's _very_ uncertain, Dan.

It is of course quite natural for anyone who sympathizes with the loser
of a series of groundbreaking court cases to claim that the issues are
_very_ uncertain.

[smile]

---Dan

==============================================================================
From: D. J. Bernstein              Date: 09-20-93 (19:30)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: IR

In article <rcrw90-200993130525@node_142cf.aieg.mot.com> [e-mail]
(Mike Waters) writes:
> > 6. Programs are fundamentally
> > impossible to classify by their end results.
> 6. Often stated, but not substantiated.  Dan may have trouble making the
> distinction, but he seems to have trouble backing up this assertion with
> more than handwaving and flames.

It doesn't need any ``substantiation''; it's Godel's theorem! There is
no reliable way to take two programs and determine that they're
equivalent.

In contrast, it's easy to see when two physical processes are
equivalent: they accomplish the same creative or destructive effect, or
move matter around, or achieve some physical or chemical transformation,
in the same way.

---Dan

==============================================================================
From: Russell Schulz               Date: 09-14-93 (23:23)
FROM   :[e-mail]
SUBJECT:Re: Usenet like TV (was Re: Need permission to repost?)
Organization: Private System, Edmonton, AB, Canada

[e-mail] (mathew) writes:

> You said that because there were many people distributing Usenet by
> copying it, that made it freely copyable.

no, I never did this.

you're confusing me with someone else.  I'm just pointing out that
the analogy is useless.

> your statement doesn't hold, and we must return to the point that your
> argument ("people copy it automatically every day, therefore it has no
> copyright") suggests that TV has no copyright.

where are you quoting from?!?

>>to at least 4 significant digits, 100% of Usenet is transmitted
>>automatically, with no human intervention, no day-to-day human
>>decisions (usually, no month-to-month human decisions).
>
> Huh.  Tell that to a system administrator at a big site.

you really think that every system admin hand-inspects more than 10
posts per day, deciding whether to send them on to downstream sites?

what universe are you living in?

>>these are _entirely_ different things, and I stand by my argument that
>>the analogy is useless.
>
> Books and video tapes are entirely different things, but copyright
> applies to both.

are you applying an analogy that they're the same?

I thought not.

what _is_ your point?

> Berne Convention tells us that by default, works are copyrighted.

I see no relation between this and my argument.

> you wish to assert that Usenet is a special exemption to this law, it
> is up to YOU to come up with a better argument than "Hey, lots of
> people copy stuff on Usenet".

this has _never_ been my argument.  just _who_ are you quoting?

nowhere have I ever refuted Berne, copyright law, or that VCRs have
timers.  yet, those are the things you return to.
--
Russell Schulz  [e-mail]  ersys!rschulz  Shad 86c

==============================================================================
From: CCO.CALTECH.EDU!GAGEORGE     Date: 09-20-93 (23:52)
SUBJECT:Re: A famous example of a bad software patent
Organization: California Institute of Technology, Pasadena

>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.

I really don't see the importance of this line of argument.  If there is
really a problem with these patents that just means the USPTO made a
mistake in allowing one or the other.  That happens all the time in fields
other than software (that's one of the things patent litigation is all
about).  If the claim is that it happens more in software then that just
shows USPTO needs to make some improvements in that area (and from other
posts it seems they are trying).  It says nothing about whether or not
software patents are "bad".

If the goal of this discussion is the "appropriateness" of "software
patents", then we need an example that precludes an entire area of
research/invention.  For example, a patent on compression with computers.
Then I think we would all agree that some grievous mistake has been made
(anyone "skilled in the art" of computers knows they can implement any
method/algorithm and thus could be used to implement compression).  This
type of a patent is not only obvious (and thus should not be allowed), but
also could hurt the industry.  I don't don't know of such an example.  The
patents being most discussed are LZW/MW/... and RSA.  None of these
preclude a NEW method of compression or encryption with computers, they
maybe just claim the "best" ways known so far.  Well, complaining about
that is just saying you're not clever enough to come up with something new
and inventive so why should other people get to make money off their
inventions.

I still have not seen anything in this discussion that makes me think
"software patents" should be treated any differently from patents in other
fields.

Glen George
[e-mail]


==============================================================================
From: [e-mail]            Date: 09-20-93 (23:50)
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:
>
> It doesn't need any ``substantiation''; it's Godel's theorem! There is
> no reliable way to take two programs and determine that they're
> equivalent.

Shame, shame.  Blasphemy!!

There are MANY steps between Godel's theorem to paragraph 6.
Mr. Godel (1906-1978) made a statement about mu-recursive functions. Or,
as grossly generalized by the popular press, asking whether an internally
consistent formal "logic" system exists.  As far as I can tell, nobody has
ever constructed a system in which a "program," as amenable to such
mundane discourse as "software patents," is a formally defined object,
with a "grammar" by which such an object can be manipulated.  Hence, to the
extent that Mr. Godel's theorem is in any way relevant, the idea
of "equivalence" between such objects is nonsensical.  People like you
go around saying that the Halting problem is proven for an intel
80486 SX machine.  To say anything about Godel (with two dots above the
'o', mister!), you should at least try to be rigorous in your treatment.
Some of us treat these things rather seriously.  Same principle applies
to Mr. Gauss, Mr. Von Neuman's, Mr. Turing's,  Mr. Post's and Mr. Galois'
work.  You shouldn't drag Mr. Godel into this; neither Mr. Godel nor his
prophets would appreciate that.  Mere mortals, like you and I, should not
use the gods' names in vain.  May you be condemned a travelling saleman
assigned to an Hamiltonian circuit.


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

Edward, Irene, Caiaphas & Ernest
Reading Church's Thesis and Posting Correspondence Problems.

==============================================================================
From: [e-mail]                Date: 09-21-93 (00:23)
Subj: e-mail search precedent
Organization: Sytex Communications, Inc

[e-mail] (John F. Detke) writes:

J>Hey gang,
J>is faced with a potential court ordered search of our email messages. I
J>believe
J>there's been some recent cases that are similar, and I'd like to find out wha
J>happened. Am I really gonna have to dig thru all our backups? Or possibly
J>worse
J>yet, will someone else dig thru all our backups and find that email I sent
J>to my lover? Please, I don't want to start the eternal email confidentiality
J>debate, but I would appreciate pointers to recent cases involving email
J>searches.

Only an attorney familiar with the rules of the court issuing the
subpoena and the specifics of the documents requested can give you
specific advise.  You don't mention whether the case is criminal or
civil, state or federal; we don't know what documents have been
requested or what your role is in the matter (e.g., party or non-party).
All of these things matter.  Under federal rules and the rules of at
least some states, however, computer files are no different from hard
copies and you are not absolved from responding to an otherwise proper
request because you keep your records on line rather than on paper.

Your personal correspondence raises different questions.  Unless your
correspondence to your lover is somehow relevant to the case, it should
not be discoverable. (Of course, if you and s/he have been accused of,
say, price-fixing, and you've been scribbling sweet nothings about your
agreements with the competition, it might well be relevant.)  If someone
asked my client for *everything* in their computer records (or
everything in their file cabinets, I'd object and (unless this is a
quite unusual case) win.

Good luck.

---
[e-mail] (Lori Fox) [Esq.]
Access <=> Internet BBS, a public access internet site
Sytex Communications, Arlington VA, 1-703-528-4380

==============================================================================
From: sohl,william h               Date: 09-21-93 (07:16)
SUBJECT:Re: Query: legal status of shareware fee request
Organization: Bellcore, Livingston, NJ

In article <[e-mail]>
[e-mail] (D. J. Bernstein) writes:
>In article <[e-mail]> [e-mail]
(Terry Carroll) writes:
>> It's _very_ uncertain, Dan.
>
>It is of course quite natural for anyone who sympathizes with the loser
>of a series of groundbreaking court cases to claim that the issues are
>_very_ uncertain.
>[smile]
>---Dan

I suppose in general that is true, but the issue of the legality of shareware
doesn't (to the best of my knowledge based on volumes of prior discussion
in this newsgroup) have even one "groundbreaking court case" to point to
to sustain either sides argument/opinion/viewpoint.

If Dan knows of some recent case, please let us know.

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: 09-21-93 (09:13)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: PANIX Public Access Internet and Unix, NYC

In <[e-mail]> [e-mail] (Suresh Damodaran
Kamal) writes:

>I will appreciate some answers from the patent gurus.

I don't know if I count as a patent guru, but here is my 2 cents' worth.

>How much money is required to take a patent in software?

Depending on the particular area, and how much work it takes to describe
it, to apply for the patent takes typically between $5000 and $20000.

>What kind of aspects can be patented?

Whatever is novel and unobvious about it.  This could include a
user-observable functionality or something that is not user-observable
about how it works internally.

>Is it within the grasp of an individual,  or only a large corporation
>can do it?

About half of the software-related patent applications I have prepared
were for individuals.  Keep in mind that for applicants who count as
"small entities" as defined by the Small Business Administration, the
Patent Office fees are mostly cut in half.

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

==============================================================================
From: [e-mail]             Date: 09-21-93 (14:36)
SUBJECT:Re: A famous example of a bad software patent
Organization: Thinking Machines Corporation, Cambridge MA, USA

In article <[e-mail]> [e-mail] (Scott L.
McGregor) writes:
>Whether one shares Miller's opinions or not, it is clear that American
>universities are one of the biggest holders of patents.  However, in
>general, they use their patents exactly as Miller encouraged: they
>license anyone and do not monopolistically restrict their inventions
>from being applied by others--subject of course to those license fees which
>support the universities endowments.

Maybe my experience is limited, but it seems like a common occurrence is
for a grad student to invent something as part of his research, the
university gets the patent rights, the student leaves to commercialize his
invention, and the university grants a license to the company he formed.
Examples are RSA cryptology (MIT granted a license only to PKP (or was it
RSADSI?)) and Lisp Machines (MIT granted licenses only to Symbolics and
LMI).

--
Barry Margolin
System Manager, Thinking Machines Corp.

[e-mail]          {uunet,harvard}!think!barmar

==============================================================================
From: [e-mail]    Date: 09-21-93 (14:43)
SUBJECT:Re: Query: legal status of shareware fee request
Organization: Amdahl

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

> In article <[e-mail]> [e-mail]
(Terry Carroll) writes:
> > It's _very_ uncertain, Dan.
>
> It is of course quite natural for anyone who sympathizes with the loser
> of a series of groundbreaking court cases to claim that the issues are
> _very_ uncertain.

You confuse "sympathizing with the loser" with "being realistic," Dan.
Flamefests like the one you're starting now are one of the reasons I
avoid being drawn into these discussions -- they add more heat than
light.

==============================================================================
From: [e-mail]          Date: 09-20-93 (23:00)
SUBJECT:Re: A famous example of a bad software patent
Organization: Prescient Software, Inc.

In article <[e-mail]> Peter Miller
<[e-mail]> writes:

>The patent systems grants a limited monopoly for the purpose of
>rewarding the invertor for *sharing* her invention - in the form of
>license fees - so that the invention becomes more widely known and thus
>more widely used.  However, patents like the RSA patent and some other
>s/w patents, are being used to *restrict* use of the invention.  The
>inventors are taking their reward from the commercial monopoly, rather
>than licensing the invention and thus sharing it.  This is why they are
>bad, they are doing exactly the opposite of what patents (as I
>understand) are meant to achieve.

I agree that where inventions are restricted by monopoly rather than
licensed, can be counter to the goal of widespread use.  So, I would
be supportive of proposals that established some standard way of licensing
(like the music industry has) or a requirement for licensing.  Both
proposals might achieve the indicated goal directly, but neither are
compatable with the ASP proposal.

>A second problem I have with s/w patents is independent invention.  If
>you have an obligation to pay a license fee (or stop using the
>invention) *after* you get caught, surely you had that obligation
>*before*, too.  Rather like speeding in your car, it is always wrong,
>but the fine applied if and only if you are caught (in signal theory
>terms, an aliasing problem).  Now, if I have an obligation not to
>infringe s/w patents (with or without being caught), but do not have
>the resources to do a papent search for every line of code you write,
>how can you ever write any code with a clear conscience?  My conclusion
>is, again, that s/w patents *restrict* the use of s/w inventions, and
>thus s/w patents are all "bad".

While it is easy to tell if you are speeding, there are many other cases
where it is difficult or expensive to tell if you are inadvertantly breaking
some law. In general, we create awards and fines for such actions taking
into account the inadvertant nature--often no penalty if you stop immediately
upon being informed of the illegality of your acts. Such situations are
common in commerce for example anticipating trademark issues can be
difficult, because of the many jurisdictions in which companies operate.
There may not be any conflict today because of regional sales limitation,
and suddenly be one tomorrow when one or both companies expand.

It seems reasonable to extend reasonable protection to those who inadvertantly
infringe, and not to expect them to do more than reasonably appropriate
to ensure that they aren't infringing. I would support appropriate
reforms in this area too. However, it is worth pointing out that while
this is often discussed in relation to ASP, the big cases cited (which
aren't even always patent cases, e.g. Lotus v. Paperback, Lotus v. Borland,
and Apple v. Microsoft and HP) are all cases of INTENTIONAL infringement.
And in one instance of apparent reinvention (the M1 and LZW patents) the
patent holders AREN'T sueing each other.  It has been claimed that the
cost of patent suits inherently limit suits against individuals so this
may explain why unintentional infringement suits have been uncomommon
in the past and may remain so, while intentional infringement cases
have been common.

One of the differences between ASP and other patent reforms such as
mentioned here is that ASP also throws the door wide open on INTENTIONAL
infringement, whereas addressing this issue head on would not.

>Universities patenting *anything* is just as bad.  Firstly, it makes
>academics secretive (of what use is a silent lecturer?).  Secondly,
>academics are chronically broke, and can't afford any other
>universities' licensing fees, and thus can't afford to confirm or deny
>scientific reasearch done elsewhere (thus, no science).
>Universities already have "sharing" mechanisms - lectures, conferences,
>papers, books - and do not need another.

Whether one shares Miller's opinions or not, it is clear that American
universities are one of the biggest holders of patents.  However, in
general, they use their patents exactly as Miller encouraged: they
license anyone and do not monopolistically restrict their inventions
from being applied by others--subject of course to those license fees which
support the universities endowments.

>My favorite example of a "bad" s/w patent (sorry, no number handy) is
>the "spreadsheet natural order recalc" patent.  The "natural order" is
>a directed acyclic graph with depth-first traversal.  This idea is
>obvious and huge amounts of prior art existed (just look at "make" and
>it various clones, or anything else using DAGs) yet it was granted.

This seems to be a very cogent argument for it being denied (or now overturned)
on the basis of prior art. Apparently there are groups collecting information
to overturn just such patents using interference proceedings. The ASP
proposal is not needed just to achieve this goal.

--
-- 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: 09-20-93 (23:08)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Prescient Software, Inc.

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

>It doesn't need any ``substantiation''; it's Godel's theorem! There is
>no reliable way to take two programs and determine that they're
>equivalent.
>
>In contrast, it's easy to see when two physical processes are
>equivalent: they accomplish the same creative or destructive effect, or
>move matter around, or achieve some physical or chemical transformation,
>in the same way.

Then it should be easy to tell whether two processes are equivalent
in this respect by whether they create or modify electrical signals,
change magnetic polarities, or etch pits in a magneto optical medium, or
change the brightness of phosphors on a screen.  If you propose that all
software patents be required to specifically address their physical
effects on such media in order to facilitate determination of equivalency,
I suspect there would be little or no protest from the pro-patent
community. That might be far more palatable to the congress than the
ASP proposal, and more directly addresses the issue Dan is complaining
about.

--
-- 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: 09-21-93 (01:13)
SUBJECT:Re: Advice: PAY and/or royalties?
Organization: Agincourt Computing

In article <[e-mail]>,
Christopher S. Hawkinson <[e-mail]> wrote:

>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.

>Chris
>Internet:       [e-mail]

What is a "Royalty"?  A percentage of sales?  Retail?  Wholesale?
Shareware fees? (:-)  Nail it down in the contract.  It's nice to have
minimum amounts and dates ("minimum of $X by u/v/1993") if you can get
away with it.

*Never* take a royalty that is a "percentage of profits".  Any decent
accountant can make "profit" magically appear or disappear with the
stroke of a pen.

--
Steve Smith                     Agincourt Computing
[e-mail]            [phone]
"Truth is stranger than fiction because fiction has to make sense."

==============================================================================
From: [e-mail]          Date: 09-21-93 (14:32)
SUBJECT:Re: A famous example of a bad software patent
Organization: negligable

In article <[e-mail]> [e-mail] (Scott L.
McGregor) writes:
>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.

posted elsewhere by: [e-mail] (D. J. Bernstein)

 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.

Note the dates of the FILING -- the number is assigned when
it is granted, thus the numerically higher patent ('846) CAN be filed
prior to the numerically lesser patent ('302).

(I do not know whether 4,814,746 or 4,714,846 is the proper patent
number, both appear to be referring to the same patent since they
are set up as anticipating '302, and both come from djb, I presume
one was a typo when remembering a patent #, and the other is the
proper number after being looked up)

>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.

And how does your thought experiment involving one patent for
a process to create NO vs. a second patent on the same process
claiming to produce nitrate toluene relate to the situation
of, say '302 vs. '846?  This is not a case of separate by-products
being patented -- both are data compression algorithms, supposedly
the SAME algorithm, yielding the same results given any one input.



  -Richard Hartman
  [e-mail]

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
"186,000 mi/sec.  Not just a good idea, it's the LAW!"


==============================================================================
From: [e-mail]    Date: 09-21-93 (11:01)
SUBJECT:Re: A famous example of a bad software patent
Organization: Motorola MCG, Urbana Design Center

In article <[e-mail]> Peter Miller
<[e-mail]> writes:

| I disagree with both interpretations.  I would like to think that
| "progress = widespread use" is a far more useful interpretation, if you
| assume that progress is meant to benefit society.  Certainly, if an
| invention does not get widespread use, no further inventions can spring
| from it, and so no ongoing "progress" is achieved.
---

I don't see any justification for the last claim -- it's quite possible
that the first patented form of an invention may be impractical or apply
to an otherwise obsolete market but still have significant impact as
the seed for a enhanced invention that is practical or defines a new
market.

---
| ...
| The patent systems grants a limited monopoly for the purpose of
| rewarding the invertor for *sharing* her invention - in the form of
| license fees - so that the invention becomes more widely known and thus
| more widely used.  However, patents like the RSA patent and some other
| s/w patents, are being used to *restrict* use of the invention.  The
| inventors are taking their reward from the commercial monopoly, rather
| than licensing the invention and thus sharing it.  This is why they are
| bad, they are doing exactly the opposite of what patents (as I
| understand) are meant to achieve.
---

The same argument could certainly be made about some hardware patents
that have been used to keep keep technologies out of the market while
the patent owner's mature technology continued to make money.  A
mandatory licensing provision would be an interesting addition to the
current system.

---
| ...
| A second problem I have with s/w patents is independent invention.  If
| you have an obligation to pay a license fee (or stop using the
| invention) *after* you get caught, surely you had that obligation
| *before*, too.  Rather like speeding in your car, it is always wrong,
| but the fine applied if and only if you are caught (in signal theory
| terms, an aliasing problem).  Now, if I have an obligation not to
| infringe s/w patents (with or without being caught), but do not have
| the resources to do a papent search for every line of code you write,
| how can you ever write any code with a clear conscience?  My conclusion
| is, again, that s/w patents *restrict* the use of s/w inventions, and
| thus s/w patents are all "bad".
---

But the same argument applies to hardware patents, as well.  The
argument that you don't have time/energy/money to spend on respecting
other's rights is not very convincing.

---
| ...
| My favorite example of a "bad" s/w patent (sorry, no number handy) is
| the "spreadsheet natural order recalc" patent.  The "natural order" is
| a directed acyclic graph with depth-first traversal.  This idea is
| obvious and huge amounts of prior art existed (just look at "make" and
| it various clones, or anything else using DAGs) yet it was granted.
---

I don't think *anyone* would argue that all of the software patents that
have been granted should have been.  Of the ones I have looked at, I
would say that most of them should not -- that they do not reasonably
meet the tests of unobviousness and originality.  Certainly the one you
cite seemed obvious to me the first time I saw a spreadsheet.

There is also about zero judicial history on software patents.  I would
expect that a lot of software patents will be thrown out when they are
actually tested.  I would also expect that the patent office will make
fewer such mistakes as its experience grows and it acquires a team of
experienced software examiners.

At the bottom line, though, I don't see any reason why software should
be any less patentable than hardware and I don't believe that teething
problems in the system are a convincing argument against having the
system.

scott
--
scott preece
motorola/mcg urbana design center 1101 e. university, urbana, il   61801
phone: [phone]     fax: [phone]
internet mail: [e-mail]

==============================================================================
From: [e-mail]         Date: 09-21-93 (16:38)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Motorola IPD

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

> In article <rcrw90-160993092016@node_142cf.aieg.mot.com> [e-mail]
(Mike Waters) writes:
> > In article <[e-mail]>, [e-mail] (Jean-loup Gailly)
> > > Two examples in the domain of data compression:
> > > - 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.
> > At least in this example, the claims are addressed top completely different
> > things!  Dan claims they are "equivalent" by some method he refuses to
> > explain.
>
> Hmmm? When did I refuse to explain something?

What is below hardly explains anything.  It is just a restatement of what
you said before.

> From claim 7 of patent 4,814,746, anyone skilled in the art can easily
> see everything claimed in 4,558,302.


> The ``method'' involved is called
> ``programming.'' I'd be happy to give more details if you really don't
> understand---though it'd be much easier on both of us if you took some
> programming courses first.

My problem is not with *my* programming, but with *your* interpretation of
the law which you seem very reluctant to explain for some reason.


Let us at least be clear that we are talking about the same thing:

claim 7 of patent 4,814,746


   7.  A method according to claim 1, wherein said modifying step comprises
the
steps of:

   adding a new string S' to said set, where S' comprises a concatenation
of
said current string match and an immediately succeeding symbol in said data
stream; and

   assigning an identifier I' to said string S'.

Combining this with claim 1 as per the preamble of claim 7 gives:

1.  A method for data compression of individual sequences or strings of
symbols arranged in a data stream, comprising the steps of:

   initializing a dictionary consisting of a set of strings with an index
for
each of said strings and including all possible strings of length l;

   setting a current input position at the beginning of said data stream
and
repeating the following steps until the data stream to be compressed is
exhausted;

   determining a longest string S in said dictionary which matches a
current
string in the data stream starting from the current input position;

   generating an identifier I for S consisting of an encoding of the index
associated with said longest matched string S;

   advancing the current immediately after said current string
in the data stream;

   adding a new string S' to said set, where S' comprises a concatenation
of
said current string match and an immediately succeeding symbol in said data
stream; and

   assigning an identifier I' to said string S';

   transmitting I to a utilization device; and

   decoding I at said utilization device to recover said string S.



and you claim that this anticipates (i.e. is the same as):

everything claimed in 4,558,302

or more specifically claim 1 which reads:

1. In a data compression and data decompression system, compression
apparatus
for compressing a stream of data character signals into a compressed stream
of
code signals, said compression apparatus comprising

   storage means for storing strings of data character signals encountered
in
said stream of data character signals, said stored strings having code
signals
associated therewith, respectively,

   means for searching said stream of data character signals by comparing
said
stream to said stored strings to determine the longest match therewith,

   means for inserting into said storage means, for storage therein, an
extended
string comprising said longest match with said stream of data character
signals
extended by the next data character signal following said longest match,

   means for assigning a code signal corresponding to said stored extended
string, and

   means for providing the code signal associated with said longest match
so as
to provide said compressed stream of code signals.



Right?

Just in a quick glance I see several things in the second claim which are
different, but I will lay them out for you if that is what it takes.

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]         Date: 09-21-93 (16:49)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: Motorola IPD

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

> In article <rcrw90-200993130525@node_142cf.aieg.mot.com> [e-mail]
(Mike Waters) writes:
> > > 6. Programs are fundamentally
> > > impossible to classify by their end results.
> > 6. Often stated, but not substantiated.  Dan may have trouble making the
> > distinction, but he seems to have trouble backing up this assertion with
> > more than handwaving and flames.
>
> It doesn't need any ``substantiation''; it's Godel's theorem! There is
> no reliable way to take two programs and determine that they're
> equivalent.

Strange I thougght Godel died before computers were invented?  How does
this apply to "software" then?  Or are we back to arguing definitions of
"what is software"?

>
> In contrast, it's easy to see when two physical processes are
> equivalent: they accomplish the same creative or destructive effect, or
> move matter around, or achieve some physical or chemical transformation,
> in the same way.

I don't see the relevence of this as applied to patents.  As I have
repeatedly pointed out to you Dan, "equivalence" doesn't matter,
"obviousness" or "anticipation" is the rule.

Maybe you don't like that, but that is your problem not that of the Patent
Office.

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]         Date: 09-21-93 (17:01)
SUBJECT:Re: A famous example of a bad software patent
Organization: Motorola IPD

In article <[e-mail]>, cco.caltech.edu!gageorge (Glen
Arthur George) wrote:

> >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.
>
> I really don't see the importance of this line of argument.

In essense, Dan is attempting to show that there is no way to distinguish
between two software patents to tell if they are the same.  Thus there is
no way to establish "novelty" in software.  It seems strange that software
alone of all human knowledge should have this property.

I challenged him to show an example and explain how they are the same.  So
far I see numerous differences between the two examples cited, as did the
USPTO in granting the patent.

My suspicion is that Dan is mis-applying the rules used to evaluate patents
and coming to a conclusion about something very different from the patent
system.  That remains to be proven by Dan.

> I still have not seen anything in this discussion that makes me think
> "software patents" should be treated any differently from patents in other
> fields.

That is essentially my conclusion until proven wrong.

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]         Date: 09-21-93 (17:09)
SUBJECT:Re: A famous example of a bad software patent
Organization: Motorola IPD

In article <[e-mail]>, Peter Miller
<[e-mail]> wrote:


> The patent systems grants a limited monopoly for the purpose of
> rewarding the invertor for *sharing* her invention - in the form of
> license fees - so that the invention becomes more widely known and thus
> more widely used.  However, patents like the RSA patent and some other
> s/w patents, are being used to *restrict* use of the invention.  The
> inventors are taking their reward from the commercial monopoly, rather
> than licensing the invention and thus sharing it.  This is why they are
> bad, they are doing exactly the opposite of what patents (as I
> understand) are meant to achieve.

I can't speak to Australian law, although I suspect that it achieves
similar results.   In the U.S. there are "anti-trust" laws which restrict
any monopolies and essentially prevent someone from using patents to
prevent an invention from being used.

> A second problem I have with s/w patents is independent invention.  If
> you have an obligation to pay a license fee (or stop using the
> invention) *after* you get caught, surely you had that obligation
> *before*, too.  Rather like speeding in your car, it is always wrong,
> but the fine applied if and only if you are caught (in signal theory
> terms, an aliasing problem).  Now, if I have an obligation not to
> infringe s/w patents (with or without being caught), but do not have
> the resources to do a papent search for every line of code you write,
> how can you ever write any code with a clear conscience?  My conclusion
> is, again, that s/w patents *restrict* the use of s/w inventions, and
> thus s/w patents are all "bad".


This is no different for software patents than any other patent!  Before
marketing as new product of any sort an "infringement search" is usually
conducted tro find any problems of this sort.  While it is not cheap, such
a search is a very small part of introducing a new product.  THe net result
in areas such as circuit design is that experienced engineers (and their
managers) are very well aware of the patents in their field.


> (See the .au in my address?  I am lucky Australia does not (yet) have a
> s/w patent treaty with the US.  Nor do I ever want one!)

Software patents are covered in the same way any other patents are through
the "Patent Cooperation Treaty".  I don't recall any specific cases, but
Australian law is very similar to other countries in this regard and so
should have almost as many software patents as the US.

> My favorite example of a "bad" s/w patent (sorry, no number handy) is
> the "spreadsheet natural order recalc" patent.

I suggest you take a look at the article authored by the inventor oif that
patent: "Debunking the Software Patent Myths" by Paul Heckel,
Communications of the ACM June 1992, pp 121-140 in which he points out the
nonsense upon which the LPF is founded.  He goes into some detail about his
invention and just what really is covered by his patent.

--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]         Date: 09-21-93 (17:31)
SUBJECT:Re: Email search precedents
Organization: Motorola IPD

In article <[e-mail]>, [e-mail] (John F. Detke)
wrote:

> I'm not a lawyer, and don't wanna play one on the net! However, my company
> is faced with a potential court ordered search of our email messages. I
believe
> there's been some recent cases that are similar, and I'd like to find out
what
> happened. Am I really gonna have to dig thru all our backups? Or possibly
worse
> yet, will someone else dig thru all our backups and find that email I sent
> to my lover? Please, I don't want to start the eternal email confidentiality
> debate, but I would appreciate pointers to recent cases involving email
> searches.

Oliver North was convicted based on evidence from the backup tapes for his
Email.  You might like to read some of the history of that case for more
detail.

I would suggest talking to a lawyer about the specifics of your situation
though, it sounds like you may have a lot more hassle coming up than
revealing hidden love notes even if you are totally innocent!
--
Mike Waters  [e-mail]  [e-mail]

==============================================================================
From: [e-mail]       Date: 09-21-93 (20:47)
SUBJECT:where to find lawyers on line?
Message-ID: <[e-mail]>
Newsgroup: ca.general,ba.general,misc.legal,misc.legal.computing,us.legal
fj.soc.law
Organization: HoloNet National Internet Access System: 510-704-1058/modem


    i'm a computer consultant trying to set up a client (who's a
    lawyer) on-line.  he's looking for conferences or usenet groups
    where he can find other lawyers on-line, talk about legal issues,
    exchange ideas, etc.

    any lawyers out there with recommendations as to the best places
    on-line he should plan on hanging out?

    he's a mac-head, with a powerbook 170, and will probably end up
    with a netcom or holonet account.

    any suggestions would be most appreciated.

    thanks,

    [e-mail]
    [e-mail]



:


==============================================================================
From: [e-mail]           Date: 09-21-93 (21:30)
SUBJECT:Re: Bay Area software patents by companies and law firms
Organization: PANIX Public Access Internet and Unix, NYC

In <rcrw90-210993143818@node_142cf.aieg.mot.com> [e-mail] (Mike
Waters) writes:

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

[stuff omitted]

>Let us at least be clear that we are talking about the same thing:

>claim 7 of patent 4,814,746

[more stuff omitted including quoting claim 7 and correctly
bringing in claim 1]

[stuff from the supposedly anticipating patent omitted]

>Right?

>Just in a quick glance I see several things in the second claim which are
>different, but I will lay them out for you if that is what it takes.

I would like to compliment you.  This type of analysis, with careful
reference to claims of the patent supposedly anticipated, is exactly
on point.  It is just the sort of analysis one should do to confirm
or disconfirm an assertion that something is anticipated.

I trust you can tell from my comment that many, many other commenters
have failed to focus in this way on the claims, and have thus been
harder to take seriously.
--
Carl Oppedahl AA2KW  (patent lawyer)
1992 Commerce Street #309
Yorktown Heights, NY  10598-4412
voice 212-777-1330

==============================================================================
From: [e-mail]         Date: 09-21-93 (23:40)
SUBJECT:RE: THE SIMPLEST SHAREWARE SITUATION
Message-ID: <bhayden.748672851@teal>
Newsgroup: misc.legal.computing
Organization: Colorado SuperNet, Inc.

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

>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.

Bought? But that is just{the point - you haven't bought it.

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

==============================================================================
From: [e-mail]         Date: 09-21-93 (23:50)
SUBJECT:RE: BAY AREA SOFTWARE PATENTS BY COMPANIES AND LAW FIRMS
Organization: Colorado SuperNet, Inc.

[e-mail] writes:

>In article <bhayden.748346231@teal>, [e-mail] (Bruce Hayden)
writes:
>> >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.

>But the big company won't hire you.  It will send its own lawyers (on
>salary) after the small company, starting with letters either demanding
>a royalty or threatening to use the force of the courts to restrain and
>thereby destroy the small company.
>--
Threatening letters are an attorney's stock in trade. But I think
that you will find that almost all patent litigation is done by
outside counsel, which of course costs real money.

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

==============================================================================
From: [e-mail]         Date: 09-22-93 (00:00)
SUBJECT:RE: QUERY: LEGAL STATUS OF SHAREWARE FEE REQUEST
Organization: Colorado SuperNet, Inc.

[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.)
>--
Please oh please don't ask this question.
It has been hotly debated for the last month or so here.
I think that the discussion all but died out from flame damage.

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

==============================================================================
From: [e-mail]         Date: 09-22-93 (00:03)
SUBJECT:RE: QUERY: LEGAL STATUS OF SHAREWARE FEE REQUEST
Organization: Colorado SuperNet, Inc.

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

>In article <[e-mail]> [e-mail]
(Terry Carroll) writes:
>> The legal requirements are uncertain.  Anyone who tells you otherwise
>> is full of it.

>Agreed on both counts. Very few computer-related areas of law have been
>litigated to the extent that anyone is _certain_ of how the next case
>will be resolved.

>Nevertheless there are many reasons to _predict_ that judges will rule
>one way or another. It's more useful to bring those reasons to light,
>and discuss their merits, than to crawl into a shell just because you're
>not _certain_.

>> What's more, the situation is unlikely to be clarified anytime soon,
>> since the low stakes involved preclude litigation.

>Here I disagree. I don't see any aspects of the shareware situation
>which won't be resolved by litigation in related areas---particularly
>shrinkwrap licenses, the liability of bulletin boards for passing along
>information, etc. From my pro-user point of view things look good:
>shrinkwrap licenses have been struck down, Compuserve won, etc.

But of course this is not a shrink wrap license.

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

==============================================================================
From: [e-mail]         Date: 09-22-93 (00:05)
Subj: RE: SOFTWARE AND THE UCC
Organization: Colorado SuperNet, Inc.

[e-mail] (Ted Frank) writes:

>Now, misc.legal regulars are all aware how the UCC can be used to
>avoid traffic tickets.  But the question remains open whether
>a custom-made software system is the provision of "services" (not
>covered by the UCC) or "goods" (is covered by the UCC).

>I'm aware of a case in Indiana calling the software "services" (though
>Indiana common law on warranties is similar enough to the UCC that the
>point was largely moot in that case).  I'm also dimly aware that NCCUSL
>is going to hold one of their conventions in Hawaii (choosing the island
>state for admiralty reasons, of course) and get around to changing
>the UCC so that it explicitly covers software.  But if the net.collective
>has any other information on the subject, please post, and maybe we can
>have a discussion on the legal newsgroups that doesn't involve illegitmate
>children.

The Step-Saver shrink-wrap case was decided based on the UCC
(and thus implicitly at least found the subject software to be a goo).

The standard that I tend to apply, and is being taught in at least
a couple of schools is to look at how much cusomization there
is in the code. I would have a hard time (as did the Step-Saver court)
in finding mass marketed PC software to be a "service". So that is
one end of the spectrum. The opposite of course is full custom software.

I do seem to remember some tax cases that addressed the subject
(many jurisdictions tax goods and not services, etc.)

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

==============================================================================
From: [e-mail]         Date: 09-22-93 (00:11)
SUBJECT:RE: SOFTWARE PRODUCT DISCLOSURE HEADACHE
Organization: Colorado SuperNet, Inc.

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

>In article <27dalo$[e-mail]>, Ivan Filippenko <[e-mail]> wrote:
>>Hello everyone,
>>
>>Not knowing quite where to turn at this point, I'd really appreciate
>>hearing opinions/advice on a strategic decision that needs to be made
>>by a fellow whom I will call "Joe."
>>

>[  Description of project "BARBAZ" deleted.   ]

>>
>>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

>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.

Well, not really. The only way that I can see to make something like
that enforceable is to get the user to sign a contract. No written
(and signed) contract = no such limitations.

I also would tend to disagree as to your calling it "license".
Often (especially in the PC arena) you are not getting a license,
but rather ownership of a "copy" and the legal right (under 17 USC 117)
to make the additional copies required in order for you to use the software.

Note also that the 9th circuit has recently found that{reverse engineering
can be fair use.

>>     - 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.

>>     - hire legal counsel?
>>

>Although a lawyer is not needed to register a copyright, it is a good idea for
>a businessperson to have one.  If Joe is serious, he probably should consult
>with one.  May cost him a few hundred dollars, but it might save him thousands
>later.

>As has been discussed several times here, Joe automatically holds a copyright
>by creating the work.  Registering it is not required.  However, if Joe plans
>to make money off of this, it is a good idea, as it gives him MUCH greater
>legal standing in court disputes concerning the copyrighted work.  Plus, its
>cheap.

>>  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?
>>
>>     - Cost? (would definitely need to hire legal cousel)
>>
>>     - is patenting typical, or inappropriate, for "educational software,"
>>       and why?
>>
>>     - 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 ?
>>

>No, a patent would NOT apply here.  Patents apply to processes, not to
>intellectual property.  As for "software patents" (in other words, someone
>claiming ownership of an algorithm), these are a subject of constant debate
>in the industry.

There is only one way to get a legitimate answer to this question -
and that is to consult with a patent attorney, in particular one
who deals with software. Anything else you hear is probably wrong.

>>  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.
>>

>This is an option.  As copyright holder, Joe may assign his rights however
>he wishes, and for whatever price he cares to name.  If he tries to do this,
>DEFINITELY hire a lawyer.

>>     - 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 ?
>>i

>Another channel Joe might try is shareware.

>>  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.

>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.

The best thing to do here is to contact an attorney, preferably a
patent/copyright/etc. attorney specializing in software.
There are too many exceptions to the general rules to make the
type of advice you could get here safe.

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

==============================================================================
From: [e-mail]         Date: 09-22-93 (00:26)
SUBJECT:RE: SOFTWARE PRODUCT DISCLOSURE HEADACHE
Organization: Colorado SuperNet, Inc.

[e-mail] (Jordan B Pollack) writes:

>There was a 1984 book from NOLO Press, called LEGAL PROTECTION FOR
>YOUR SOFTWARE, which had a lot of great information in it, but is out
>of date w.r.t. sw patents.  It has all sorts of copyable language,
>which is still circulating in beta test agreements, kiss-off contracts
>to programmers, etc.

>>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.

>thats why Ivan (isn't that russian for Joe:) asked here, to avoid
>paying a IP lawyer!

And he will get exactly what he is paying for.

>while Carl is correct that any good piece of software (which has gone
>through cycles of design innovation introducing the stuff we call
>"non-obvious") may have at least one patentable section, unless it is
>sold right away for $50,000 (to make the $5000 in patent cost a
>fraction) IT AINT WORTH IT.  Too many people waste capital on
>patenting instead of marketing, so you get a patent for something
>worthless.  go for the patent AFTER the product is generating income
>or someone else has paid to license the invention, (in fact you should
>get them to pay for the patent process, since it is in their
>interest to have some exclusivity)!

I am not disagreeing with you position that many people should put
their money into marketing instead of patenting their invention.
This applies, regardless of the invention.

BUT, I would suggest consulting with a patent attorney before you
do the aboveThere are statutory bars that may apply here -
that may keep him from ever getting a patent.

>Maybe I am wrong about this, but it would seem that disclosure of a
>program itself to a school or friends (with a proper copyright notice and a
>no copying banner) without make a presentation on HOW it works does
>not necessarily disclose any NON-OBVIOUS SW ideas inside, which can be
>kept as secret until they are are formally disclosed when seeking
>patent protection. If the ideas are obvious to another programmer just
>from casually observing the BEHAVIOR of the program, there is very
>little to protect anyhow.

Again - the best and only intelligent thing to do when talking about
patents is to consult with a patent attorney. NO ONE ELSE is really
competent to give advice as to wn to apply for a patent (or how long
you can wait) or whether or not you actually can get a patent on your
invention.

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

==============================================================================
From: [e-mail]           Date: 09-22-93 (01:19)
SUBJECT:CHURCHILL CLUB, THURSDAY SEPT. 23 -- REMINDER

               The Churchill Club, Thursday, September 23

              The Great Software Intellectual Property Wars
              =============================================

  The great software intellectual property wars have dramatically changed
  the direction of the software industry and can strongly affect a company's
  bottom line.

  In today's software marketplace, a developer must watch out for its
  competitors' lawyers as much as for the competitors' technology or sales
  strategy.

  Two veteran "generals" in these wars will speak to the current legal
  climate and its effect on the industry:

          Jack Brown, founding partner of Brown and Bain, who litigates
          frequently on behalf of Apple, Intel, and IBM, will speak to the
          issues from the perspective of the software copyright owner.

          Martin Glick, partner of Howard, Rice, Nemerovski, Canaday,
          Robertson & Falk, who masterminded the successful defense by
          Galoob Toys against Nintendo, will speak from the viewpoint of
          the alleged infringers.

  Susan Nycum, a partner of Baker & McKenzie and a founder of the software
  law field, will moderate the session for the benefit of industry players
  who must make business decisions in the face of the current uncertainties.

  When:   Thursday, September 23 -- 6:00 pm Reception, 6:45 pm Program

  Where:  Hyatt Rickeys, Palo Alto

  Cost:   Churchill Club members, $18; Non-members, $28

==============================================================================
From: [e-mail]          Date: 09-22-93 (02:55)
SUBJECT:Re: A famous example of a bad software patent
Organization: Prescient Software, Inc.

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

>And how does your thought experiment involving one patent for
>a process to create NO vs. a second patent on the same process
>claiming to produce nitrate toluene relate to the situation
>of, say '302 vs. '846?

Let me make the parallel more explicit

> This is not a case of separate by-products being patented

In the 302/846 case, both may be separate claims being patented.

> both are data compression algorithms,

In the NO/toluene case, both are chemical process patents.

> supposedly the SAME algorithm,

In the NO/toluene case, both are the SAME chemical reaction.

> yielding the same results given any one input.

In the NO/toluene case, both yield precisely the same results given
the same input.


I think the exact nature of the parallel I was drawing is a bit
more explicit in this treatment.  The point is that the two chemical
patents would only both be granted if their CLAIMS are non-indentical.
But if the claims are non-identical they both can be patented despite
the fact they involve the same discipline, process and results (subject
of course to the normal disclaimers concerning prior art, obviousness
and novelty). My point is that IF the claims are non-identical (which
at least a few readers feel they are) then both patents might still
be valid even though they cover differing aspects of the same process.





--
-- 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.