phr@ucbvax.ARPA (Paul Rubin) (07/13/85)
The following letter appeared in the July, 1985 issue of BYTE magazine. I did not read the article that it refers to, but I find it ironic that after the inventors of RSA fought so hard to prevent the Government from classifying their work, they now are trying to use the patent system to suppress its widespread use. The letter: As part of his article titled "Implementing Cryptographic Algorithms on Microcomputers" (October 1984, page 126), Charles Kluepfel described an implementation of the RSA Public Key algorithm and the BASIC code required. Unfortunately, he did not reference that this RSA Public Key Cryptosystem was patented by the Massachusetts Institute of Technology in 1983 (U.S. Patent 4,405,829). The worldwide exclusive license to this patent was then purchased from MIT by RSA Security Inc., a company founded by the inventors of the RSA algorithm to develop this technology. Because the RSA algorithm has been published in academic journals, most people assume that it is in the public domain, similar to the DES algorithm. Unfortunately, some people have developed software and other products based on the RSA algorithm without researching this point. Nevertheless, the patent exists and, in the opinion of our corporate attorneys, will be easily defended. As RSA Security Inc. paid a great deal of money for the exclusive patent rights, we plan to actively police the commercial use of the RSA algorithm. The purpose of this letter is not to criticize either Mr. Kluepfel or BYTE for his article. Rather, the purpose is to make you aware of our patent position and ask for your help in educating your readership as to its existence. Based on Mr. Kluepfel's article, more people are going to start expending money and effort developing RSA-based software for commercial purposes. Regrettably, their effort will be wasted unless they obtain a sublicense from us. Therefore, we suggest you publish a reference to our patent in a future issue of BYTE to protect your readers from this lack of knowledge. Ralph Bennett President RSA Security Inc. Sunnyvale, CA 94087
henry@utzoo.UUCP (Henry Spencer) (07/14/85)
> ... I find it ironic that > after the inventors of RSA fought so hard to prevent the Government from > classifying their work, they now are trying to use the patent system to > suppress its widespread use... The letter says nothing of the kind; what they are trying to suppress is people who make money from it without paying royalties to the inventors. Note the exact wording (emphasis added): > ... people are > going to start expending money and effort developing RSA-based software > for *commercial* purposes. Regrettably, their effort will be wasted > *unless* they obtain a *sublicense* from us. -- Henry Spencer @ U of Toronto Zoology {allegra,ihnp4,linus,decvax}!utzoo!henry
andrew@stc.UUCP (Andrew Macpherson) (07/15/85)
In article <9028@ucbvax.ARPA> phr@ucbvax.ARPA (Paul Rubin) writes: >The following letter appeared in the July, 1985 issue of BYTE magazine. > ... The letter: > > ... Charles Kluepfel described an > implementation of the RSA Public Key algorithm and the BASIC code required. > Unfortunately, he did not reference that this RSA Public Key Cryptosystem > was patented by the Massachusetts Institute of Technology in 1983 > (U.S. Patent 4,405,829). The worldwide exclusive license to this patent > was then purchased from MIT by RSA Security Inc., a company founded by > the inventors of the RSA algorithm to develop this technology. > ... Rather, the purpose is to make you aware of our > patent position and ask for your help in educating your readership as > to its existence. Based on Mr. Kluepfel's article, more people are > going to start expending money and effort developing RSA-based software > for commercial purposes. Regrettably, their effort will be wasted > unless they obtain a sublicense from us. This seems strange. I was under the impression that: 1 algorithms cannot be patented, hence the use of copyright and/or trade secret law to protect software. 2 software independently developed to perform a given function is the property (copyright etc.) of the developer to use as he sees fit, and it is only that based on someone else's *CODE* which is open to legal attack. Since I don't claim to be a Legal expert, much less an American Legal expert (US Patent after all :-) I'm cross-posting to net.legal, with followup to net.legal only. I'ld be interested also in comments from anyone qualified in the legal aspects in europe. -- Regards, Andrew Macpherson. <andrew@stc.UUCP> {creed, datlog, idec, iclbra, root44, stl, ukc}!stc!andrew
hal@cornell.UUCP (Hal Perkins) (07/15/85)
from net.crypt: > Unfortunately, he did not reference that this RSA Public Key Cryptosystem > was patented by the Massachusetts Institute of Technology in 1983 > (U.S. Patent 4,405,829). The worldwide exclusive license to this patent > was then purchased from MIT by RSA Security Inc., a company founded by > the inventors of the RSA algorithm to develop this technology. > > Because the RSA algorithm has been published in academic journals, most > people assume that it is in the public domain, similar to the DES > algorithm. Unfortunately, some people have developed software and > other products based on the RSA algorithm without researching this > point. Nevertheless, the patent exists and, in the opinion of our > corporate attorneys, will be easily defended. As RSA Security Inc. > paid a great deal of money for the exclusive patent rights, we plan > to actively police the commercial use of the RSA algorithm. Er, say what? I'm no lawyer, but from my reading of general articles on patent law, an algorithm is one of the things that specifically CAN'T be patented. One can patent a gadget (that's how the Unibus was patented), but one can't patent an idea unless it's "reduced to practice", i.e., implemented. That would seem to mean that one could patent a box that encrypted data using the RSA algorithm, but one couldn't patent the algorithm itself. What's going on here? (I've aimed this at net.legal also and I think followups will go there since that seems to be the appropriate place for this.) Hal Perkins UUCP: {decvax|vax135|...}!cornell!hal Cornell Computer Science ARPA: hal@cornell BITNET: hal@crnlcs
karn@petrus.UUCP (Phil R. Karn) (07/17/85)
Along the same lines, IBM holds patents on DES. It is claimed that they will grant royalty-free licenses to anyone wishing to manufacture chips conforming to the standard. A few thoughts come to mind: 1. To formally adhere to DES (i.e., to gain a certification from NBS), you have to implement the algorithm in hardware on a special-purpose chip. General purpose computer software implementations are not certifiable. I've never understood this requirement, except to note that a hardware implementation seems to be related to the test for patentability. 2. IBM is not widely known to cheerfully give away things for free. In fact, this is so out of character for them that one almost wonders if they have an ulterior motive to promote widespread usage of DES (I think you can guess what it might be.) Or, more charitably, perhaps they realize their patent on the "algorithm" itself could never be defended anyway, so they hope to gain some public good will out of it. Naturally, the above are strictly my personal opinions. Phil
jpm@calmasd.UUCP (John McNally) (07/18/85)
> The following letter appeared in the July, 1985 issue of BYTE magazine. > I did not read the article that it refers to, but I find it ironic that > after the inventors of RSA fought so hard to prevent the Government from > classifying their work, they now are trying to use the patent system to > suppress its widespread use. The letter: > > As part of his article titled "Implementing Cryptographic Algorithms on > Microcomputers" (October 1984, page 126), Charles Kluepfel described an > implementation of the RSA Public Key algorithm and the BASIC code required. > Unfortunately, he did not reference that this RSA Public Key Cryptosystem > was patented by the Massachusetts Institute of Technology in 1983 > (U.S. Patent 4,405,829). The worldwide exclusive license to this patent > was then purchased from MIT by RSA Security Inc., a company founded by > the inventors of the RSA algorithm to develop this technology. > > Because the RSA algorithm has been published in academic journals, most > people assume that it is in the public domain, similar to the DES > algorithm. Unfortunately, some people have developed software and > other products based on the RSA algorithm without researching this > point. Nevertheless, the patent exists and, in the opinion of our > corporate attorneys, will be easily defended. As RSA Security Inc. > paid a great deal of money for the exclusive patent rights, we plan > to actively police the commercial use of the RSA algorithm. > > The purpose of this letter is not to criticize either Mr. Kluepfel or > BYTE for his article. Rather, the purpose is to make you aware of our > patent position and ask for your help in educating your readership as > to its existence. Based on Mr. Kluepfel's article, more people are > going to start expending money and effort developing RSA-based software > for commercial purposes. Regrettably, their effort will be wasted > unless they obtain a sublicense from us. Therefore, we suggest you > publish a reference to our patent in a future issue of BYTE to protect > your readers from this lack of knowledge. > > Ralph Bennett > President > RSA Security Inc. > Sunnyvale, CA 94087 Well, I was going to post a query to the net about this very thing. Before doing so I decided to read a little net.crypt first (as I do not normally subscribe to this group). I am glad I did. I also read a reference to the same thing in the 7/15/85 issue of Datamation. It seems that this company (RSA Security) markets some software called MailSafe for the IBM PC. It uses RSA encryption to protect the contents of electronic mail. I quote from Datamation (p. 118): "The RSA Public Key is part of the RSA Public Key Cryptosystem, a kind of cryptographic envelope that can only be opened by the specified person using his RSA Private Key. The vendor has purchased an exclusive license for this patent from MIT." What's the story here??? Is there really a patent on the RSA algorithm? Is it legitimate? (i.e., if challenged, would it hold up?) Or is there a slight of hand here - note the use of capitals for everything. Are we really talking about software, but leaving the impression that they have patented the algorithm? How can anyone patent the mathematical concept of the intractability of prime factoring? This seems ludicrous! Is RSA Security on the net? How about Rivest, Shamir, or Adelman? Are they the principals in RSA Security? If so, I would like to hear from them and have this thing clarified. I smell Marketing! The above opinions are solely my own. -- John McNally Calma 11080 Roselle St. San Diego CA 92121 ...{ucbvax,decvax}!sdcsvax!calmasd!jpm (619)-458-3230
henry@utzoo.UUCP (Henry Spencer) (07/21/85)
> ...Is there really a patent on the RSA algorithm? Apparently. > Is it legitimate? (i.e., if challenged, would it hold up?) Virtually any patent can be invalidated if you pour enough money into lawyers' fees, nowadays. Sad but true. This one might be hard to crack; R,S,&A can probably claim a genuine invention. > ... Are we really talking about software, but > leaving the impression that they have patented the algorithm? They have probably patented a hardware implementation, and are assuming that they can successfully sue imitators working in software. They may be right. > How can anyone patent the mathematical concept of the intractability > of prime factoring? One can't. The idea of using this to build a public-key encryption system, however, would appear patentable. Buckminster Fuller did not invent the properties of polygons, but he successfully patented the geodesic dome. -- Henry Spencer @ U of Toronto Zoology {allegra,ihnp4,linus,decvax}!utzoo!henry
fulk@ellie.UUCP (Mark Fulk) (07/21/85)
I just read an article complaining that it seemed ironic that after fighting NSA to keep the RSA algorithm unclassified, RSA were trying to prevent its use through the patent system. This comment reflects an unfortunate misconception about the patent system. The purpose of the patent system is to PROMOTE, not inhibit, the widespread use of inventions. A principal requirement of the patent system is that a complete description of the invention be published in a publically available form (the patent gazette). In order to encourage inventors to patent their inventions, they are allowed up to 34 years (soon to be longer for medical inventions) of royalties. The alternative to the patent system is the widespread use of trade secrets, which would permanently prevent anyone from using a protected invention at any cost. If neither form of protection were available, industrial innovation would grind to a fairly rapid halt. The patent system might allow an inventor to charge prohibitively high fees for a license; however, I believe that such fees have previously been successfully challenged in anti-trust suits; any lawyers that know specifics please inform us. Note that in any case the invention is in the public domain after 34 years.
sean@ukma.UUCP (Sean Casey) (07/23/85)
In article <490@calmasd.UUCP> jpm@calmasd.UUCP (John McNally) writes: >This seems ludicrous! Is RSA Security on the net? How about >Rivest, Shamir, or Adelman? Are they the principals in RSA >Security? If so, I would like to hear from them and have this >thing clarified. I smell Marketing! I agree. You can't patent an idea, just the implementation. If you wrote your own RSA program, you certainly wouldn't be breaking any laws, just as if you wrote your own Unix kernel, you could sell it freely. -- - Sean Casey UUCP: sean@ukma.UUCP or - Department of Mathematics {cbosgd,anlams,hasmed}!ukma!sean - University of Kentucky ARPA: ukma!sean@ANL-MCS.ARPA
lauren@vortex.UUCP (Lauren Weinstein) (07/23/85)
Who says you can't patent ideas? Go down to the local library and look through the patent books. You'll find that algorithms of different sorts are frequently granted patents. Mathematical patents have been granted in the past, as have process patents (for example, an idea for a formula for a new drug). I don't think the patent office sees any fundamental difference between a formula for a new drug (which may be actually produced as a physical thing in many different ways) and a mathematical formula (which may be implemented in different manners and used for different things). I also don't believe there's anything that says that you can go ahead and use the patent for non-profit sorts of things without paying--that's presumed to infringe on the rights of the patent holder (unless the holder grants you a cost-free license). In the specific question of RSA--the issue is what exactly was patented--a particular implementation or the general concept? It might have been both. Someone asked why IBM didn't patent DES. As I understand it, there are several reasons. One is that IBM alone apparently didn't hold all the rights. Another is that to file patents you usually have to explain the underpinning rationale of the procedure, which has never been openly published for the magic DES matrix boxes (as far as I know). Thirdly, there was no point to a patent since the idea was for it to become a federal standard and be widely used by business. Go down to the library sometime and look through the patent books. You may find the sorts of things that have been patented very interesting. --Lauren--
sean@ukma.UUCP (Sean Casey) (07/23/85)
In article <405@petrus.UUCP> karn@petrus.UUCP (Phil R. Karn) writes: >2. IBM is not widely known to cheerfully give away things for free. In >fact, this is so out of character for them that one almost wonders if they >have an ulterior motive to promote widespread usage of DES (I think you can >guess what it might be.)... You bet. The NSA really boondoggled IBM about DES and it's implementation. Could it be that once upon a time it was so good that the NSA was forced to cripple it? -- - Sean Casey UUCP: sean@ukma.UUCP or - Department of Mathematics {cbosgd,anlams,hasmed}!ukma!sean - University of Kentucky ARPA: ukma!sean@ANL-MCS.ARPA
bobh@pedsgd.UUCP (Bob Halloran) (07/25/85)
In article <1982@ukma.UUCP> sean@ukma.UUCP (Sean Casey) writes: >In article <405@petrus.UUCP> karn@petrus.UUCP (Phil R. Karn) writes: >>2. IBM is not widely known to cheerfully give away things for free. In >>fact, this is so out of character for them that one almost wonders if they >>have an ulterior motive to promote widespread usage of DES (I think you can >>guess what it might be.)... > >You bet. The NSA really boondoggled IBM about DES and it's implementation. >Could it be that once upon a time it was so good that the NSA was forced to >cripple it? > It is widely believed that the original IBM proposal involved a key size of more than 128 bits, and that the No Such Agency promptly classified the research and imposed the existing size in order to facilitate their domestic monitoring of traffic. Bob Halloran Sr MTS, Perkin-Elmer DSG ============================================================================= UUCP: {ihnp4, decvax, ucbvax}!vax135!petsd!pedsgd!bobh USPS: 106 Apple St M/S 305, Tinton Falls NJ 07724 DDD: (201) 758-7000 Disclaimer: My opinions are mine alone. Quote: "No matter where you go, there you are" - B. Banzai
jim@randvax.UUCP (Jim Gillogly) (07/25/85)
I read the letter claiming a patent on the RSA algorithm and passed it to
Stockton Gaines, who knows about things like this. His first impression was
the one given by several people on the net, that you can't patent an algorithm
or an idea. However, since then he ordered and got a copy of the patent and
has changed his mind. Apparently one kind of legally acceptable patent is
the "use" patent, which lays claim to certain uses of something. The example
he gave is an inventor who discovers that a chemical can be used for something
unexpected. For example, if you discover that aspartame will behave as a
room-temperature superconductor (different from its use as a sweetener), you
can patent any use of aspartame as a conductor. These people have patented
the use of the RSA algorithm in encryption. Apparently if you want to use
it as a good but slow random number generator you're still in the clear ...
as long as the random numbers aren't used to encrypt plaintext!
I'd be interested in reactions to this theory...
--
Jim Gillogly
{decvax, vortex}!randvax!jim
jim@rand-unix.arpahenry@utzoo.UUCP (Henry Spencer) (07/25/85)
> I agree. You can't patent an idea, just the implementation. If you wrote > your own RSA program, you certainly wouldn't be breaking any laws, just as > if you wrote your own Unix kernel, you could sell it freely. Sorry, you're confusing several different forms of protection. The Unix kernel is protected by trade secret, and independently re-implementing it is legitimate. You can come up with the exact same code, in fact, provided you can prove that you didn't steal it from AT&T. (In practice, making the code distinctly different simplifies this proof a lot.) Copyrights (e.g. the one on the Unix manual) protect the form in which concepts are expressed, and so you can re-use the concepts *provided* you express them differently. A book which is word-for-word identical to "Lord of the Rings" is a copyright infringement even if you come up with it completely independently. But you can re-express the same ideas without any problem. Patents are different; they *do* protect ideas rather than the form in which the ideas are expressed. Furthermore, even independent invention of the idea is not a defence against a patent-infringement suit. If the patent on the RSA algorithm holds up -- patenting algorithms is a gray area -- then *all* implementations of the algorithm are covered. By the way, don't forget that the Unix kernel includes the patented setuid bit, although AT&T has (as I recall) waived royalties on this. Yes, the idea of the setuid bit is patented. -- Henry Spencer @ U of Toronto Zoology {allegra,ihnp4,linus,decvax}!utzoo!henry
kre@ucbvax.ARPA (Robert Elz) (07/27/85)
In article <5828@utzoo.UUCP>, henry@utzoo.UUCP (Henry Spencer) writes: > Copyrights (e.g. the one on the Unix manual) protect the form in which > concepts are expressed, and so you can re-use the concepts *provided* > you express them differently. A book which is word-for-word identical to > "Lord of the Rings" is a copyright infringement even if you come up with > it completely independently. But you can re-express the same ideas without > any problem. In a word, this is nonsense. Copyright protects against exactly what the name implies - copying. Recreating the work independantly is not a breach of copyright. However, as with Henry's example of trade secrets and the Unix kernel, trying to convince anyone that you just happened to rewrite "Lord of the Rings" word for word out of your own mind is not likely to an easy task to accomplish. Robert Elz ucbvax!kre ps: this discussion belongs in net.legal, I have added a followup-to to force any future followups to that group alone.
dee@cca.UUCP (Donald Eastlake) (07/28/85)
The reason certified implementations of DES have to be in hardware is because
it is much more tamper resistant than software.
It was part of the deal that IBM had to agree to give royalty free licenses
to DES for it to be designated a standard.
IBM uses DES on all of its internal communications lines.
--
+1 617-492-8860 Donald E. Eastlake, III
ARPA: dee@CCA-UNIX usenet: {decvax,linus}!cca!deetim@callan.UUCP (Tim Smith) (08/27/85)
> I'm no lawyer, but from my reading of general articles on patent law, > an algorithm is one of the things that specifically CAN'T be patented. I just recently found a book at the Caltech bookstore called "Software Law, a Primer", and bought it. It was quite fascinating. One of the sample cases given was some sort of control system for a chemical plant that used a specific equation to control something or other. This was patentable. The patent does not cover all uses of that equation - just the use of it control that specific part of a chemical plant doing what that specific chemical plant was doing ( I don't have the book with me, so I am being a bit vague here. Sorry ). Although an algorithm can't be patented ( I think ), using a specific algorithm to accomplish a specific task can. This is probably what will make the RSA system patentable. DISCALIMER: I am not a lawyer, or even a particularly well read non-lawyer when it comes to this sort of thing. -- Tim Smith ihnp4!{cithep,wlbr!callan}!tim
mpr@mb2c.UUCP (Mark Reina) (08/29/85)
> > I'm no lawyer, but from my reading of general articles on patent law, > > an algorithm is one of the things that specifically CAN'T be patented. > > I just recently found a book at the Caltech bookstore called "Software Law, > a Primer", and bought it. It was quite fascinating. > One of the sample cases given was some sort of control system for a chemical > plant that used a specific equation to control something or other. This was > patentable. The patent does not cover all uses of that equation - just the > use of it control that specific part of a chemical plant doing what that > specific chemical plant was doing ( I don't have the book with me, so I am > being a bit vague here. Sorry ). > I am quite sure that an algorithm can not be patented. However, the process can be patented. For instance, when the telephone was patented it made perfect use of applied science. The process of turning a "voice" into an electrical pulse and converting it back again. The patent did not cover that algorithm. But the tangible product making the conversion was patented. This may be one of the most valuable patents ever issued under the U. S. Patent Office. Mark Reina
smb@ulysses.UUCP (Steven Bellovin) (08/29/85)
> > I'm no lawyer, but from my reading of general articles on patent law, > > an algorithm is one of the things that specifically CAN'T be patented. > > .... > > Although an algorithm can't be patented ( I think ), using a specific > algorithm to accomplish a specific task can. This is probably what > will make the RSA system patentable. That is indeed what they did. The RSA patent is for a communications system that uses the equations to accomplish assorted stuff, like public keys, signatures, etc. If you can think up new uses for their equations that are neither covered by the patent nor an "obvious" extension, you're home free.
doc@cxsea.UUCP (Documentation ) (08/31/85)
> > I'm no lawyer, but from my reading of general articles on patent law, > > an algorithm is one of the things that specifically CAN'T be patented. > > I just recently found a book at the Caltech bookstore called "Software Law, > a Primer", and bought it. It was quite fascinating. > > One of the sample cases given was some sort of control system for a chemical > plant that used a specific equation to control something or other. This was > patentable. The patent does not cover all uses of that equation - just the > use of it control that specific part of a chemical plant doing what that > specific chemical plant was doing ( I don't have the book with me, so I am > being a bit vague here. Sorry ). > > Although an algorithm can't be patented ( I think ), using a specific > algorithm to accomplish a specific task can. This is probably what > will make the RSA system patentable. > > DISCALIMER: I am not a lawyer, or even a particularly well read non-lawyer > when it comes to this sort of thing. > This is one of those odd-ball legal areas that causes more trouble than it has any right to. About 15 years ago, someone sought to patent a simple program for converting binary numbers to decimal ones. The Supreme Court eventually decided that this was not patentable, because the program used iterations of a simple formula to do the conversion. The court concluded that this "algorithm", like most mathematics, is a law of nature, which is clearly non-patentable. The problem has been that people tend to confuse the court's use of the word "algorithm" with the software developer's use of the word "algorithm", which are in fact different. You might consider a re-entrant C function to be an "algorithm", but what does that have to do with a mathematical formula? I suppose you could create a mathematical model of the function, but you could also model anything else mathematically, such as a chemical process or a mechanical device, both of which are normally patentable. But the "program is an algorithm is a mathematical formula" idea just wouldn't go away. So the courts and the patent office were stuck for awhile with this notion of "program" as synonymous with "law of nature", and said "no patent". Well, since then, things have changed. The courts have ben convinced that software is not a simple law of nature, anymore than any other mechanical, electrical or chemical contrivance is. The Patent Office has routinely accepted software patent applications since 1982, which presumably cover all kinds of program "algorithms". So, yes, you can patent a software algorithm, so long as it is something more than a simple formula or equation, assuming it meets the statutory requirements for patentability (non-obviousness, novel, etc.)
edhall@randvax.UUCP (Ed Hall) (09/04/85)
I guess it depends upon what you call an ``algorithm''. I understand that UNIX's set-user-ID mechanism was one of the first (if not THE first) software patents. It has nothing to do with particular hardware or servicing a particular application--I would assume that a computer implemented with bistable algae built solely for performing a simulation of water flow is still covered by this patent, should it require such a file-security mechanism. -Ed Hall decvax!randvax!edhall
winston@cubsvax.UUCP (Ken Winston) (09/10/85)
One point that seems quite important to me in this discussion hasn't
been touched on (at least I haven't seen it). That is, how can you patent
something that's already been published and generally distributed?
It seems to me that the RSA article preceded by some years the patenting.
I have a copy of an MIT Laboratory for Computer Science paper by RSA dated
April 1977 (does this make me a criminal?). I'm not sure when they obtained
the patent, but my impression is that it was pretty recent.
The problem here is: suppose, on obtaining the published paper that I said
to myself, "This is a great idea, and it has lots of commercial potential."
I develop a commercial product based on the paper. Then someone comes along
sometime later and tells me that I'm violating a patent that didn't exist
when I read the paper and developed my product.
I notice nothing in the paper about a patent being applied for. I do notice,
however, that the work was supported by the NSF and the Office of Naval
Research, which raises some other questions. Wasn't there a case with the
people who developed Gatorade at the University of Florida having to turn over
their earnings on the commercial product to a government agency that supported
the research?
Anyway, does this mean that one shouldn't try to develop products based on
published papers, because the authors may apply for a patent sometime later
and screw one?
Ken Winston
Winston Capital Management, Inc.
{cubsvax,cmcl2}!wealth!kened@mtxinu.UUCP (Ed Gould) (09/11/85)
In article <358@cubsvax.UUCP> winston@cubsvax.UUCP (Ken Winston) writes: >One point that seems quite important to me in this discussion hasn't >been touched on (at least I haven't seen it). That is, how can you patent >something that's already been published and generally distributed? A patent, unlike a trade secret, is protection for an idea that is - and by the patent process must be - publicly disclosed. Only some types of things may be patented, all of which can be classed as inventions (but not all inventions are patentable). The criteria for granting of a patent include that the invention must be new, and the pateht must be applied for by the inventor, or, if there are multiple inventors, all of them. Consult a patent attorney for more details. >It seems to me that the RSA article preceded by some years the patenting. >I have a copy of an MIT Laboratory for Computer Science paper by RSA dated >April 1977 (does this make me a criminal?). I'm not sure when they obtained >the patent, but my impression is that it was pretty recent. > > [discussion of problem: implementation of the published design before > issue of patent] > >I notice nothing in the paper about a patent being applied for. I do notice, >however, that the work was supported by the NSF and the Office of Naval >Research, which raises some other questions. Wasn't there a case with the >people who developed Gatorade at the University of Florida having to turn over >their earnings on the commercial product to a government agency that supported >the research? > >Anyway, does this mean that one shouldn't try to develop products based on >published papers, because the authors may apply for a patent sometime later >and screw one? One certainly needs to be careful about implementing someone else's patentable idea. It is common practice to seek - and win - retroactive restrictions and/or royalties for patent infringement. -- Ed Gould mt Xinu, 2910 Seventh St., Berkeley, CA 94710 USA {ucbvax,decvax}!mtxinu!ed +1 415 644 0146 "A man of quality is not threatened by a woman of equality."
darrelj@sdcrdcf.UUCP (Darrel VanBuer) (09/13/85)
In article <358@cubsvax.UUCP> winston@cubsvax.UUCP (Ken Winston) writes: >One point that seems quite important to me in this discussion hasn't >been touched on (at least I haven't seen it). That is, how can you patent >something that's already been published and generally distributed? >It seems to me that the RSA article preceded by some years the patenting. >The problem here is: suppose, on obtaining the published paper that I said >to myself, "This is a great idea, and I develop a commercial product based >on the paper. Then someone tells me that I'm violating a patent that didn't >exist when I read the paper and developed my product. Under US law, publication prior to patent application is not an impediment to patent (it is under most European patent law). In any event, patents are awarded to the first to think of the idea (though proving you did it first can be challenging; you should keep good notebooks), not the first to apply. To be awarded a patent, your idea must be original and nonobvious. A patent based on an idea you see in open literature is not likely to be awarded (evidence of being prior art ant not original). Under US law, their publication probably aids patentability since it firmly establishes a date on which they had the idea. -- Darrel J. Van Buer, PhD System Development Corp. 2500 Colorado Ave Santa Monica, CA 90406 (213)820-4111 x5449 ...{allegra,burdvax,cbosgd,hplabs,ihnp4,orstcs,sdcsvax,ucla-cs,akgua} !sdcrdcf!darrelj VANBUER@USC-ECL.ARPA
henry@utzoo.UUCP (Henry Spencer) (09/13/85)
[Warning: I'm not a lawyer. Consult an expert before doing anything rash.] > ... how can you patent > something that's already been published and generally distributed? You cannot *apply* for a patent on something that has been public knowledge for more than some short time (six months?). However, patents can take a long time to work their way through the patent office. It is the date of the application that matters in this regard, not the date when the patent is issued. > The problem here is: suppose, on obtaining the published paper that I said > to myself, "This is a great idea, and it has lots of commercial potential." > I develop a commercial product based on the paper. Then someone comes along > sometime later and tells me that I'm violating a patent that didn't exist > when I read the paper and developed my product. This is technically known as "bad luck". Since you are making money off someone else's idea without any attempt to pay them royalties, I fear I would have little sympathy. > I notice nothing in the paper about a patent being applied for. "Patent pending" is an attempt to warn people that a patent is in the works. It conveys no property rights and is not a legal requirement. > I do notice, > however, that the work was supported by the NSF and the Office of Naval > Research... Interesting point, but this whole area is complicated and slippery. The government has made some attempt at balancing "it was developed with public money, so it should belong to the public" against "if we cannot protect our discovery from ripoff artists, why bother doing the hard work needed to make a commercial product out of it?". A lot would depend on the detailed terms of the research funding. The Gatorade decision doesn't necessarily generalize to cover the RSA patent. > Anyway, does this mean that one shouldn't try to develop products based on > published papers, because the authors may apply for a patent sometime later > and screw one? It means that one should be ethical about it and offer to pay the authors a royalty! If they decline, fine. If not, you're out a bit of cash but you have clear permission to use the idea. -- Henry Spencer @ U of Toronto Zoology {allegra,ihnp4,linus,decvax}!utzoo!henry
smb@ulysses.UUCP (Steven Bellovin) (09/14/85)
> One point that seems quite important to me in this discussion hasn't > been touched on (at least I haven't seen it). That is, how can you patent > something that's already been published and generally distributed? > > It seems to me that the RSA article preceded by some years the patenting. > I have a copy of an MIT Laboratory for Computer Science paper by RSA dated > April 1977 (does this make me a criminal?). I'm not sure when they obtained > the patent, but my impression is that it was pretty recent. I already checked with a patent attorney on this one... The key restriction is that the patent must be applied for within one year *after* any publication. R, S, and A did indeed meet this requirement.
bill@utastro.UUCP (William H. Jefferys) (09/17/85)
> In article <358@cubsvax.UUCP> winston@cubsvax.UUCP (Ken Winston) writes: > >One point that seems quite important to me in this discussion hasn't > >been touched on (at least I haven't seen it). That is, how can you patent > >something that's already been published and generally distributed? > >It seems to me that the RSA article preceded by some years the patenting. > >The problem here is: suppose, on obtaining the published paper that I said > >to myself, "This is a great idea, and I develop a commercial product based > >on the paper. Then someone tells me that I'm violating a patent that didn't > >exist when I read the paper and developed my product. > > Under US law, publication prior to patent application is not an impediment to > patent (it is under most European patent law). > In any event, patents are awarded to the first to think of the idea (though > proving you did it first can be challenging; you should keep good > notebooks), not the first to apply. To be awarded a patent, your idea must > be original and nonobvious. A patent based on an idea you see in open > literature is not likely to be awarded (evidence of being prior art ant not > original). Under US law, their publication probably aids patentability > since it firmly establishes a date on which they had the idea. What does this mean for RSA's chances of getting a European patent? Will it be legal for people to use these ideas in some European countries without paying royalties, but illegal here? Just curious. -- Glend. I can call spirits from the vasty deep. Hot. Why, so can I, or so can any man; But will they come when you do call for them? -- Henry IV Pt. I, III, i, 53 Bill Jefferys 8-% Astronomy Dept, University of Texas, Austin TX 78712 (USnail) {allegra,ihnp4}!{ut-sally,noao}!utastro!bill (UUCP) bill@astro.UTEXAS.EDU. (Internet)
john@anasazi.UUCP (John Moore) (09/20/85)
In article <2336@sdcrdcf.UUCP> darrelj@sdcrdcf.UUCP (Darrel VanBuer) writes: >Under US law, publication prior to patent application is not an impediment to >patent (it is under most European patent law). We went to a lot of trouble on a recent patent application to determine the date of OUR first publication of the idea. The lawyer said that if our application was more than one year after the date of first public disclosure, the idea was public property and couldn't be patented. -- John Moore (NJ7E) {decvax|ihnp4|hao}!noao!terak!anasazi!john {hao!noao|decvax|ihnp4|seismo}!terak!anasazi!john (602) 952-8205 (day or evening)