cl@datlog.co.uk (Charles Lambert) (07/15/88)
In article <1812@looking.UUCP> brad@looking.UUCP (Brad Templeton) writes: > >Actually, I view this as a more fundamental debate, namely the one about >whether I.P. should exist, and how it should exist. I agree. And the amount of circular argument in this debate, not to mention the sheer impracticality of enforcing current legal ideas of software rights, drives this contributor to conclude that we are fundamentally misguided in our current view of intellectual property (IP). Let me ask a naive question (not rhetorical, I don't know the answer): how does the right of patent differ from the right of copyright? It seems to me that patent is far more appropriate to software than is copyright, because software is more machine than artistic conception. Copyright seeks to protect the whole product, whereas patent seeks to protect the original inventions within a product. Audi Motor Company doesn't copyright a car, it patents the steering geometry. If you want to use that geometry, they'll sell you a license that still allows you to build an economic product around it. If you build a production line that turns out Audi clones they can't (can they?) sue you for the whole thing, just the bits they've established as definable, original invention. I suspect they can't get you for building an engine of identical dimensions because they don't own the patent on the Otto Cycle. This seems to place value in the intellectual creation rather than in the commercial manoeuvring that Brad (wrongly, I believe) drew into the debate. Now... I can't conclude this by carrying forward my opening remark (sign of a wooly argument) because my idea of patent seems as difficult to enforce as copyright presently is. But, anyway... >The answer to >"is it ok to copy software" falls out of this, but it is at a different >level. To which BOB said something like "if it's illegal, it's not OK." But that's inverting the question, BOB. The question was "is is *moral* to copy software," and the law should embody morality, not dictate it. ------------ Charles Lambert
jbn@glacier.STANFORD.EDU (John B. Nagle) (07/17/88)
The following discussion assumes a basic knowledge of the patent process.
If you lack this, and want to know more, read one of the "patent it yourself"
books, such as the one from Nolo Press.
Although few people patent software, there are considerable advantages
to so doing. It does inhibit imitators. First, it tends to scare them off.
They have to face the prospect of litigation. They may have to report the
prospect of litigation to their stockholders on their 10-K filing to the
SEC and in their annual report, which looks bad. For publicly held companies,
it can depress the stock price. For small companies looking for financing,
it scares off venture capitalists.
Patents have to be taken much more seriously today than a few years
ago. The Polaroid vs Kodak case scared many executives who used to look
upon losing a patent case as a cost of doing business. When Polaroid won
that one, Kodak, much to their suprise, was given thirty days to get out
of the instant camera business, which they did. They were also ordered to
buy back all the Kodak instant cameras ever sold to consumers, and to pay
damages of about $500,000,000 to Polaroid. The latter two were appealed,
and Kodak lost again. This ended some careers at Kodak. When an executive
costs a company a half billion dollars, his career is usually over.
Further, the patent appeals process has been simplified and improved.
There is now a U.S. Court of Appeals for Patents and Trademarks, sitting
at Washington. All patent and trademark cases are funneled through that
court, rather than being handled by the usual courts of appeal. The
new court is composed of patent lawyers, who have technical training.
It is generally considered pro patent-holder; the patent holder wins about
80% of the time there.
You can patent software. Some patent lawyers don't know how, though.
See "Advanced Legal Strategies for Software Protection" for a clear discussion
of the subject. There really has never been a period when one couldn't patent
software, although for a time, the Patent Office viewed attempts to do so
rather negatively, and patent applications had to be very carefully drafted.
Today, it's not that hard.
Finally, there are significant tax advantages to owning a patent.
Before tax reform, they were impressive, but even today, they're
significant.
You also get a really neat certificate when your patent is issued.
John Nagle
(I hold U.S. Patent #4,740,904.)brad@looking.UUCP (Brad Templeton) (07/17/88)
It is true that many things in the concept of the patent apply well to software. The reason I think the initial discussion should focus more on copyright is that it's easier to decide the issue. With a piece of software, book or other moderately complicated piece of I.P. it is usually extremely clear that the product is a creation of a person or group. As long as one book or program was known to be first, if another comes along that is byte for byte or word for word the same, it's an easy decision as to what transpired. (This gets more complex when you consider derivative works, but the central issue is clear.) With patent, one can't be so sure. One has to consider that two independent developers might come up with the same idea, and the law is predicated on a presumption of innocence. Two indpendent writers do not come up with the same chapter of a book, however. It's actually not so much patent vs. copyright, but rather the complexity of the thing protected. If it can be said in a few words, it's harder to be sure of the origin than if it's 15K of assembler. That's why we get arguments over songs, which are very short. The issue is further complicated by things like look and feel claims, when you get to smaller things like specs. But when we discuss whether I.P. should exist, it is good to start with something that everybody can agree is the creation of the proposed "owner." -- Brad Templeton, Looking Glass Software Ltd. -- Waterloo, Ontario 519/884-7473
kurt@tc.fluke.COM (Kurt Guntheroth) (07/19/88)
WARNING! I AM NOT A LAWYER! USE THIS INFORMATION ONLY FOR DISCUSSION. YOUR MILEAGE MAY VARY. VOID WHERE PROHIBITED. USE UNDER ADULT SUPERVISION. > From: cl@datlog.co.uk (Charles Lambert) > Let me ask a naive question (not rhetorical, I don't know the answer): > how does the right of patent differ from the right of copyright? > It seems to me that patent is far more appropriate to software than is > copyright, because software is more machine than artistic conception. > Copyright seeks to protect the whole product, whereas patent seeks to > protect the original inventions within a product. Audi Motor Company Copyright seeks to protect intellectual property, mostly books, but also art work and music, from copying. Copyright protects your right to control distribution of a work you have expended substantial creative effort on, since often distribution is much simpler than creation. Copyright does not protect the idea itself. That is, if you write a cookbook, copyright does not protect you against somebody using your recipes to open a restaurant, even if it competes with a restaurant you own. Somebody cannot publish your cookbook, or take some of your recipes and put them in another cookbook, but the recipes themselves can be used. If maintained, copyrights extend for a very long time; something like 75 years. Patents protect "utilitarian objects", and processes. Patents were established to increase innovation, by offering a term of exclusive license for an invention in exchange for public disclosure of the invention. Since the invention is disclosed, anyone can examine its principles of operation and potentially improve upon them. Patents prevent any use of an invention without license from the inventor. The term of a patent is much shorter. It is something like 17 years, but I think there are circumstances in which it can be extended. Until recently, patent protection did not seem to apply to software. The patent law specifically prevents you from patenting a chemical formula or a law of nature and algorithms were viewed as laws of nature. However, it has become possible to patent the application of an algorithm to a specific domain. For instance, it is not possible to patent the bit shuffling done by the DES encryption algorithm, but it is possible to patent the application of that algorithm to encryption. When viewed in this way, tying an algorithm to an application, all but the most basic algorithms are probably patentable. For instance, the application of spreadsheet-like manipulations of data to building automated financial reports (sorry, too much prior art to patent this now.) The thing that makes patent protection so valuable is that the idea of your invention is protected. It is difficult for a competitor to modify your idea slightly and market it. So, it looks like patenting software is a great thing, right? Well, lets think about it. If your software is a "utilitarian object", certain evil things happen. For one thing, you are liable for its use. This includes warranties of fitness for use and merchantability. That means, if you sell, say, a spreadsheet, there is an implicit warranty that it will work properly. If a bug in the program causes a customer to lose a great deal of money, the author is potentially liable for that amount. There is of course an infinite amount of legal detail here concerning how liable the author would be and how careful the customer should have been, but the point is clear. If software is patentable, then it is a utilitarian object. If it is a utilitarian object, it is susceptible to laws concerning liability. On the other hand, if software is intellectual property, like a recipe or book, there is no implied warranty. If a recipe is not flavorful, it is not the problem of the author, except inasmuch as it diminishes the value of the book. The purchaser certainly has no recourse to get their money back. The term of copyright protection is much longer too. Another advantage of copyright over patent is that copyright is pretty easy to establish. You have to be the first one to publish a thing, which can be proven by sending it to the Copyright office. Determination of copying is (relatively) mechanical, involving comparison of the two texts or works of art by a court. Patents can sometimes be broken. If the patent claims are deemed to be too broad, a court can throw some claims out, and much of the protection evaporates. If someone can show "prior art", that they had invented the same thing, they can use the invention without license. If they can show that the invention was obvious "to a practicioner skilled in the art", the patent may be discarded, and again your protection vanishes. So patent protection is powerful, but dangerous. Now some questions for any legal beagles reading this: Can you control the treatment of your specific piece of software by anything you say on the package? Can you say "This is intellectual property" or "This is a utilitarian object"? Is it determined by whether you select patent or copyright protection? Can you have both protections simultaneously, or does one counteract the other?
jbn@glacier.STANFORD.EDU (John B. Nagle) (07/20/88)
In article <4492@fluke.COM> kurt@tc.fluke.COM (Kurt Guntheroth) writes: >WARNING! I AM NOT A LAWYER! USE THIS INFORMATION ONLY FOR DISCUSSION. >YOUR MILEAGE MAY VARY. VOID WHERE PROHIBITED. USE UNDER ADULT SUPERVISION. > > (extensive misinformation about patents, copyrights, etc.) This guy has absolutely no idea what he is talking about. I don't have the time to write a tutorial on the subject today, though. So read up on the subject. Many books are available. I hold a patent on an algorithm usually implemented in software, and researched the subject in some detail while in the process of getting a patent, so I do have some idea of what is involved here. John Nagle