[8531] in Commercialization & Privatization of the Internet
Multimedia has been patented
daemon@ATHENA.MIT.EDU (Barry Shein)
Sun Nov 21 22:14:33 1993
Date: Sun, 21 Nov 1993 22:13:58 -0500
From: bzs@world.std.com (Barry Shein)
To: tenney@netcom.com
Cc: com-priv@psi.com
In-Reply-To: Glenn S. Tenney's message of Sat, 20 Nov 1993 21:01:09 -0800 <199311210501.VAA14078@mail.netcom.com>
>From: tenney@netcom.com (Glenn S. Tenney)
>>This db would indeed be handy to have, but it's hardly necessary.
>
>It is necessary for there to be prior art. Just because you and I know
>thus and so does not support a challenge in court. It might, but if you
>can point to the XYZ journal or the QRZ book it is much much more powerful.
I meant it doesn't have to be this hi-tech on-line thing. Surely the
patent office managed to survive before computers, and much stuff
they'd need *is* on-line.
E-mail would go a long way, just e-mail some list-o-contacts
(preferably broken down by specialty) as to whether they know of prior
art pertaining to xyzzy, it doesn't have to be too specific.
And a lot of stuff is on-line (if they want the titles/authors/etc of
all Usenix conference and other proceedings they're right here on my
system up for public grabs.) etc.
>Well, you have some ACM and IEEE journals that until recently weren't
>available electronically. Add to that, but it is VERY difficult to
>"translate" an academic article of theory to a patent with a detailed flow
>chart.
Particularly when there's no one on staff with a CS degree.
But the most important articles for this kind of thing probably aren't
theory, some will be. Hey, what can I say, it's a job. I don't doubt
there's work involved.
>>Ok, fine, then shut it down and don't issue any more software patents
>>until it is fixed.
>> ...
>>Would you keep an emergency room open staffed by undergrad bio
>>students because you couldn't afford doctors? ...
>
>Well, actually most people WOULD prefer an attempt to save their lives in
>an ER than to pass away while everyone sat there watching.
What I meant was that keeping an ER staffed with unqualified people
for years with the only excuse being that you can only afford $30K/yr
in salary is not a very good excuse.
What's actually wrong with the analogy is that people would quickly
learn to avoid that ER, but there's only ONE USPTO.
>I *DO* think that we've got to get the PTO to
>stop issuing "bad" patents (of any discipline!), but I do believe that
>there are many valid things to patent.
Then we probably mostly agree (I don't know if our sense of "valid" is
the same, but that's probably not the problem.)
>Of course not, and I agree with you.
And I agree with you, *kiss kiss*, so there!
>There are many out there who have said that "our field
>is different" or that "there should be no software patents" and the like.
The underlying problem may lie in definition.
We certainly have lived these 200+ years with no patents on
mathematical discoveries.
Many who speak out against software patents claim that most of these
patent applications lie closer to that tradition than what is
traditionally covered by patents.
The argument for a very conservative approach to software patents may
well be just that, the conservative argument. And the issuing of
patents for software algorithms may be the radical departure from past
practice.
And the trouble we're seeing could just be the predictable result of
that radical departure from past practice. There was wisdom in
excluding purely mathematical devices (I think the wording was
something more like "natural laws") because they tend to be too broad
and fundamental and creep into all kinds of designs inadvertantly.
There's also the problem analogous to the copyright example always
given that it's ok to copyright a blues song, but it's not ok to
copyright the blues.
More than a few of these patents seem to fall under the latter
category, particularly in practice
For example, RSA not just being satisfied with a patent on their very
good algorithm for public key encryption, but attempting to broaden it
to include any algorithm which utilizes a public and private key, no
matter how unrelated the mechanism, to me that's "the blues", not a
blues song, stretching the analogy inappropriately (don't all mail me
and explain the difference between copyright and patents, I still
think the analogy is worth a moment's consideration in this context.)
>Sorry, I was in a hurry to take a kid someplace and rushed... My point
>here, and the one below, is: Why focus on just the PTO as the problem?
Because they grant govt enforced monopolies, it's a very profound and
special power.
>The problem is much more complex than that. The problem includes those
>companies which are blackmailing an industry with patents that they should
>know are ludicrous. The problem includes the legal system that validates
>inappropriate patents and makes it virtually impossible for a small
>enterprise to afford to challenge inappropriate patents.
Sure, but it does start with the USPTO granting the license to go out
and kill. None of these cases would be very interesting or go very far
if a patent hadn't been issued.
You can't drag someone into court on an intellectual property without
some verfiable claim, copyright, trademark or patent. And patents are
different in that unlike the other two they have to be specifically
granted by a govt agence, USPTO. But, in the same vein, that tends to
make them more credible in court, as we've seen.
>I thought emacs checked the
>time delay between escape and the next character to decide whether it was a
>function key or a meta key).
I don't know if emacs did that but the vi editor (ca 1978) certainly
did. And so does the System V curses software library, tho that may
have had it after the Hayes patent (but were they asked to pay a fee?)
Anyhow, the underling problem in all this is more subtle, when the
govt has a system that encourages meanness and litigiousness then
anyone who isn't mean and litigious could be viewed as a fool or
worse.
For example, can an officer (e.g. president) of a publicly held corp.
choose *not* to pursue the broadest possible interpretation of a
patent the company holds in this climate?
No, of course not, s/he could be held *personally liable* to the
stockholders for any resultant lost revenues of his/her sudden foray
into civilized behavior, I mean, you can't stick the stockholders with
that bill, etc.
-Barry Shein
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