[gnu.misc.discuss] Patents

mernst@theory.lcs.mit.edu (Michael Ernst) (07/29/90)

brnstnd@kramden.acf.nyu.edu (Dan Bernstein), who is correct in conclusion
but incorrect in detail, says:
> By the way, the 1981 decision that software patenters keep gibbering
> about didn't say that software patents were valid.

This is Diamond v. Diehr, decided on March 3, 1981 by the United States
Supreme Court.  I quote from the Opinion of the Court, page 191:
	We view respondents' claims as nothing more than a process for
	molding rubber products and not as an attempt to patent a
	mathematical formula. 

Here "mathematical formula" = "computer program" = "algorithm"

> What happened was
> that company A used a computer in one part of an innovative method for
> doing process X. Now it has been established that using a computer to
> perform an algorithm doesn't make the algorithm patentable.

Nothing had been established then, of course (and I'm not convinced that
this has been firmly established even now, though it should be), but this
case was supposed to decide a separate issue.  Diehr wasn't claiming a
patent on the Arrhenius equation, and the court emphasized that had it
thought he was trying to do so, it would have thrown the patent out.  From
page 185:
	We defined "algorithm" as a "procedure for solving a given type of
	mathematical problem," and we concluded that such an algorithm, or
	mathematical formula, is like a law of nature, which cannot be the
	subject of a patent.

> Company B
> took the opportunity to challenge A's patent, saying that the use of a
> computer rendered the entire process unpatentable.

Actually, "Company B" is Commissioner of Patents and Trademarks Diamond,
who was supporting the judgement of a patent examiner (who'd rejected the
patent) and of the Patent and Trademark Office Board of Appeals, which had
been overturned by the Court of Customs and Patent Appeals.

> This is, of course,
> backwards: using a computer doesn't give you a patent, but it doesn't
> take away a patent either. And that's all the court said.

This is absolutely correct.

The case has been widely misunderstood, of course, and the result has been
an about-face in the attitude of the Patent Office, which has fallen over
itself in its eagerness to grant patents, even on algorithms.  It has no
idea of how many such patents it has granted.

Twenty more years of expensive lawsuits is the wrong way to decide this
issue.  Computer professionals need to air the issues and then make their
opinions known.  Then perhaps we can propose thoughtful legislation which
protects intellectual property without strangling the industry via
overprotection.  What the law currently says shouldn't matter to us in the
debate over what it should say.  Rather, we should be acting to change
those laws which are inadequate.  At present this includes both the
copyright and patent statues, at least as they're being interpreted by the
courts.
					-Michael Ernst
					 mernst@theory.lcs.mit.edu 

escher@Apple.COM (Michael Crawford) (07/31/90)

In article <MERNST.90Jul28233614@emu.lcs.mit.edu> mernst@theory.lcs.mit.edu (Michael Ernst) writes:
(the supreme court sez...
>	We defined "algorithm" as a "procedure for solving a given type of
>	mathematical problem," and we concluded that such an algorithm, or
>	mathematical formula, is like a law of nature, which cannot be the
>	subject of a patent.
>

Let me first say that I oppose software patents, and I have no legal
qualifications... However, I have read a lot about them, and this is my
understanding and opinion:

I don't feel that an algorithm is a law of nature.  I think an algorithm
is either a process, or a device, just like a manufacturing process, or
a gear train.

It seems to me that if one argues that an algorithm is a law of nature,
one could also argue that a gear train is also a law of nature.  A gear train,
or manufacturing process, actually, is an expression of how the laws of 
nature may be obeyed and exploited to achive a particular goal.  The fact
that an algorithm strikes a judge as being an abstract law seems to me
to be a mistake on the judge's part.

About existing patents... the basic criterion used by the Patent Office is
that the patent must be written in such a way as to show the relationship
of the algorithm to the control of a physical device.  In this way it would
be some kind of control mechanism, like a governor.  However, one could
go to some length, after inventing an algorithm, to devise a machine that
the algorithm can control, and then patent it.  I think this may be 
happening.

The reason I feel that algorithms should not be patented goes back to the
very reasons patents exist: to encourage technological creativity.  Patents
aren't really there to guarantee anyone a profit.  They exist to encourage
someone to actually market a device, and _publish_its_secret_workings_for
_posterity_.

After 17 years (or less, if the patent is not maintained), the patent goes
into the public domain.

Without patents, we would have both fewer mechanical inventions,
and what there were would be kept secret.  If the secret died with
the inventor, it would be lost to the world.  Consider, for example,
the document disclosure program, which gives you two years of
patent-like protection for a small fee, and not much hassle.  If
you don't follow through with the patent, it is placed in the public
domain, and the government has the specs for all to see.  The
objective here is to get the inventions into use, and if they are
not used, to give them to the world.

Now, all these reasons exist for algorithms, but I think the algorithm is a
special case:

1 The cost of manufacturing an algorithm is nearly zero.  (I mean copying
software, not writing it in the first place).

2 Algorithms are useful for many purposes.  An algorithm conceived for a
particular use may be readily applied to a completely different problem.

Since a general purpose computer can use any algorithm, the entirety of
the set of algorithms is available to the designer of a particular 
application.  This is not so with patents on physical devices; a designer of
an aircraft engine cannot make much use of a patented hybrid plant!

These two facts sum up what I feel is the very beauty of software.  It is
the ultimate mass-producible product, and there is no cost (inherent) in
including previously invented mechanisms in a new application.

I wonder if anyone has made the argument of what free software could do for
the third world?  Consider that when GNU is released, a third world country
could be set up with a multi-user Unix system, with complete source,
for about $2000 (a 386 SX, hard disk, and some terminals).  Consider that
one of the great strengths of Soviet and mainland Chinese science is in
theoretical studies, because they do not have the cash to buy much hardware --
what could they do in software?  All they need is a relatively cheap 
computer system.  How about agricultural forecasting in tropical countries?

If all these users had to pay a per-user fee for their OS's and applications,
they could not get tenth the amount of work done that they could with
free software.
-- 
Michael D. Crawford
Oddball Enterprises		Consulting for Apple Computer Inc.
606 Modesto Avenue		escher@apple.com
Santa Cruz, CA 95060		Applelink: escher@apple.com@INTERNET#
oddball!mike@ucscc.ucsc.edu	The opinions expressed here are solely my own.

		alias make '/bin/make & rn'

brnstnd@kramden.acf.nyu.edu (Dan Bernstein) (09/02/90)

In article <1990Aug27.222359.4398@sco.COM> seanf@sco.COM (Sean Fagan) writes:
> In article <67638@sgi.sgi.com> karsh@trifolium.sgi.com (Bruce Karsh) writes:
    [ basically claims that if you don't have a patent or a ]
    [ user-interface copyright, you'll find it difficult to ]
    [ get a loan for software development and marketing ]
> Software companies (off the top of my head) that were founded without
> requiring a software patent or user-interface copyright:  Microsoft, Lotus,
> the Dbase people, Borland Int'l, SCO (yep), ISC, Locus, the FSF (yep),
> Cygnus Corp.

Not to mention the many hardware companies that offer to market your
software---hence reducing your real costs nearly to zero. It's entirely
safe for the author, who gets royalties that are often more than the
profits he'd get if he marketed without support. Patents and
user-interface copyrights have always been irrelevant to such deals.

---Dan