[net.micro.68k] Patents

dmr@alice.UucP (10/03/86)

People seem to have strange ideas about patents.

A first, seemingly unknown, fact is that the legal content of a patent
is in its claims ("What is claimed is:").  These are hard to read
without a lawyer, but it is just not enough to say that Andy
Bechtolsheim and Sun have a patent on not translating RAS addresses.
It depends on the details.

Second, most patents are (of course) about utterly trivial things that
no one cares about, but even among those that have some value, most
are not earthshakingly new or surprising or even, except in the legal
sense, "non-obvious to those skilled in the art," particularly once
they have been read.

Third, patents are only rarely contested in court, and when they are,
the patent frequently doesn't stand up.  However the process is so
expensive for everyone that it is worth avoiding if possible.  There
are newsworthy exceptions; the most spectacular recently was
Polaroid's success in forcing Kodak out of the instant-photography
market by winning a patent case.

Fourth, in the electronics area, specific patents conferring
exclusivity don't seem to be as important as they are elsewhere.  For
example, it is my impression that in the pharmaceutical industry,
possession of a patent on a specific compound or process can be a very
valuable thing.  But in computers, it more usual either to arrange a
license on reasonable terms or to get around the claims of a patent.
There are exceptions here, too; DEC has been litigating for years with
people about patents on their various busses.

Especially for large companies, patents tend to be of value not for
protection of specific ideas, but as a kind of commodity which can be
traded with others in the form of cross-licensing agreements.  If you
have lots of patents, you are in a strong position to bargain once for
all and not have to worry so much about costly lawsuits (either by you
or against you).

In all cases, what you do with a patent is an economic (game theory)
decision.  Consider what Sun might try.  They could let things ride,
since they're doing pretty well.  They could try to get some license
money from everyone who is using the idea, or they could offer
cross-licensing agreements.  Being aggressive might offer some real
rewards (in a fantasy world, they might put their competitors out of
business) but is likely to be costly.

In the case of the SUID, Andy Tannenbaum is being overly dramatic.  It
wasn't patented in order to prevent Unix from being pirated, but
instead because our lawyers are always asking us if we've had any
bright ideas lately, and I disgorged this one.  It certainly never
entered anyone's mind that the value of the system as a whole rested
on SUID.  In fact, the existing consent decree required AT&T to license
all its patents for reasonable fees; if someone had come out with a
pirate Unix, the most that could be done with the patent (as opposed
to trade-secret protection) would be to extract a little money.

Early Unix licenses--I haven't read recent ones--mentioned that some
patents had been applied for, and that the licencees might be
responsible for fees.  (The figure $50 comes to mind, but I could be
wrong here.) Ultimately, only one patent issued, and AT&T decided that
it was not worth while collecting any fee whatsoever.  Effectively,
anyone can now use the SUID idea for the price of a letter to AT&T in
Greensboro to check on what formalities might still be required.

Incidentally, contrary to what Andy says, and also in spite of
Benson-Tabbot (the Supreme Court case that Bell Labs lost), our
lawyers have been telling us for many, many years that software is
indeed patentable.  Ken Thompson's patent "Regular Expression Search
Algorithm" must have been filed around 1968, and it is full of 7090
assembly language.  (On the other hand, its diagrams are full of AND
gates, as indeed are the diagrams of the SUID patent).

		Dennis Ritchie
--