[10168] in Commercialization & Privatization of the Internet
About Computer Software and Patents
daemon@ATHENA.MIT.EDU (Paul Robinson)
Thu Feb 10 01:07:47 1994
Date: Thu, 10 Feb 1994 00:59:30 -0500 (EST)
From: Paul Robinson <PAUL@tdr.com>
Reply-To: Paul Robinson <PAUL@tdr.com>
To: Jeff Kushan <kushan@uspto.gov>,
>From: Paul Robinson <PAUL@TDR.COM>
Organization: Tansin A. Darcos & Company, Silver Spring, MD USA
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The following represents the text I will be reading at the Patent Office
hearing on the relationship between computer software and patent issues,
Crystal City, Virginia, 9:15am February 10. This text has been edited to
allow me to fit it, and possible questions, into an 11 minute space.
This is a short portion of my remarks on the matter. This will be part of
a complete comment on the Federal Register text. My comment will be
posted to the Internet once completed.
--------------------------------------------
Good Morning Commissioner Lehman, Mr. Kushan, the staff here, members of the
audience, people reading this report in the future and anyone else I've
forgotten.
My Name is Paul Robinson. I am Chief Programmer for Tansin A. Darcos &
Company, a software development firm specializing in text processing
applications; I also do work on Commercial Philosophy and metaphysics of
computer systems. My special interest and my personal hobby is collecting
compiler and other program sources. My reasons for this are that these all
solve problems. By reading the manner and method other people have solved
other problems, it gives me insight into how to solve mine.
This is a common practice in the computer world in order to, as the expression
goes, "Not reinvent the wheel." I assume this is common in other industries.
In fact, this is most likely the reason that we have a patent system; someone
is granted the exclusive right over commercial use of an invention for a
limited term in exchange for telling the world about it.
For most computers, every application such as word processing or spreadsheets
has at least two and possibly three or more different applications fighting
for market share. The fights in this industry are usually referred to by the
expression "Dinosaur mating dances" as huge companies fight for market share
by releasing new programs to introduce new features that the companies believe
the customers want. Version 3 of Turbo Pascal was an excellent language
compiler and less than 40K. Version 4 would fit on one 360K diskette. Today,
Turbo Pascal for Windows version 1.5 takes 14,000K of disk space. The program
that is probably the premiere application for graphics design is Corel Draw!,
which has so much material it is now being released on not one, but two 500
megabyte CD-Rom disks.
But there are probably still niches for smaller companies to move into.
With the rapid changes in the marketplace, it is necesary to be ready to have
new programs and new releases of old programs out to encourage people to move
to the next release. In some cases, companies make more money from upgrades,
and need to do so to stay alive. These kind of cycles mean new releases have
to be out very quickly; in a matter of weeks to months.
With this kind of rapid development cycle, delays in the release of a program
could be fatal and the time available to create the work is sometimes barely
enough. Until recently, the only legal issue that anyone had to worry about
was copyright infringement. That could be avoided by creating new work from
scratch.
Now we have another issue altogether. A programmer can independently create
something without ever knowing about any other developments, and yet be
sabotaged by the discovery that the method that they used is patented. This
is a standard problem that all industries have had to face, and it is part and
parcel of living in an industrial society. But there is another problem. A
computer program is the written instructions by a human being to tell a
computer how to perform a particular task. As such, there are only two
parameters: the input supplied to the program and the expected output.
Everything else is literally a figment of someone's imagination.
This bears clarification. A computer program is the means of manipulating the
internal data paths of a computer system. There is no requirement that the
manipulations have any correspondence to the real world. In this, the real
world, doing anything requires the expensive movement of people and goods from
one point to another, the possible refinement of materials into other
materials, and the expenditure of energy and resources. Doing anything in a
computer is merely the essentially cost-free movement of electron paths from
one direction to another; it brings forth the apportation of the concepts of
the madman Imanuel Kant into reality: a world in which anything is possible:
- We can see this in the current discussions going on about violent computer
games where someone goes about maiming, shredding and killing their
opponents, in graphic detail, then when the game is over, nothing in the
real world has changed except the clock. One of my favorites happens to
be the game "DOOM" where the weapon of choice is a 12-gauge shotgun, but a
chainsaw does a nice job on people close to you.
- We have seen it in motion pictures such as "Total Recall", where, if one
is acting within a part of a computer program, you cannot be certain what
is real or what is fantasy. The movie "Brainstorm" had simulations of
sexual contact apparently indistinguishable from reality.
There are things that can be done within a computer program that cannot be
done in the real world, or would have undesirable consequences. As such, we
should ask whether the patent rules, which are designed to apply to real-world
conditions where doing something requires the expenditure of energy and
resources, should apply in a world where the known rules of the universe do
not apply. Because the entire design starts from scratch, and the designer
doesn't just get to play God, he <italic>is<\italic> God.
Despite the ease under which someone can do something, we still live under
real-world constraints. Once a design choice is made, it is very expensive in
time and effort to change it. Worse, because most programs have interactions
that cover every part, a change to one part can cause unexpected and even
undesirable side effects in unknown and unexpected places. Computer programs
may be "the stuff that dreams are made of" but once placed into concrete form
as written in software instructions, it's just as expensive to repair or
change as if it was carved out of real materials.
It may be necessary to change the rules on patents to comply with the
conditions that exist for computer programs.
There has been talk of instituting "first to file" in order to "harmonize"
with the systems in other countries; I think that is not a good choice; most
countries have fewer patents, and provide protection which is much narrower
than our system does. This would also mean that someone who does invent a new
and useful technique for use in a computer application would be unable to
collect any royalties from someone else who is using the same invention, who
thought of it after they did, but started using it before they filed.
The two really large problems that exist in our system are probably two part:
the secrecy under which patent applications are filed, and the problems if a
program uses parts of several patents, which might not be discovered until
later.
As I mentioned earlier, computer programs are created out of the figment of
someone's imagination, then mass copied, the way an original painting can be
reproduced by lithograph. A single large application might have a dozen
people working on it, and upwards of 50 different features, and might have
upwards of 200 or more different parts, any one of those might be infringing
on zero, one or more patents depending on what the claims are. I doubt
seriously that all but the largest corporations have the resources to do 200
patent searches on a single software application, which would be prohibitive
for a small company, because it is likely that a large program could infringe
dozens of patents, due to the continued development of ever larger
applications that do multiple simultaneous functions.
But more than that, you can't do patent searches on works which are under
application form, until after the patent has been issued. And more
importantly, with more than 1,200 patents issued every week, checking them all
for possible interconnection would make it impossible to do any serious work.
Seventy years ago, fears that the major piano player manufacturer would tie up
the entire song market and prevent other companies from creating player piano
rolls caused Congress to institute compulsory licensing. This may be an idea
whose time has come again.
Therefore it might be considered to make two changes in the patent law with
respect to computer programs: to implement a standard compulsory license,
perhaps 10 percent of the manufacturer's suggested list price, and to
eliminate secrecy provisions in the filing of patent applications.
Either of these could certainly help the situation. Eliminating secrecy and
publishing applications once filed would let people know about pending
inventions: they could endeavor to avoid infringements in advance; it might
also allow them to file interferences early, if it turns out that they
invented the concept earlier, while it is cheap to do so; and would allow
people to be aware of what is being developed which would comply with Article
1, Section 8 of the Constitution, where patent protection was designed "to
encourage the improvement of the useful arts".
The other option of setting a standard royalty via compulsory license would
eliminate the worries of someone infringing upon an existing patent or one
that is filed after their work is created. It would also grant to inventors
an income stream from those who use their inventions, which started before
they filed their application but after they reduced the invention to practice.
It would also limit liability and exposure to sustainable limits. As it
stands, if someone develops a program that infringes upon 40 patents, and they
each want a 3% royalty, it isn't hard to see that 120% of the program's income
is not going to be possible.
---
Paul Robinson - Paul@TDR.COM
Voted "Largest Polluter of the (IETF) list" by Randy Bush <randy@psg.com>
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