Personal Use

0 views
Skip to first unread message

Robert Cain

unread,
Jan 19, 1992, 12:08:30 AM1/19/92
to
Is it forbidden by patent law to build a patented device in one's back
yard for ones own use? If the answer (by chapter and verse) is yes,
has there ever been prosecution of such an endeavor?
--
Bob Cain rc...@netcom.com 408-358-2007

"Systems should be described as simply as possible, but no simpler."
A. Einstein

[ Note from Temporary Moderator
> There was a law magazine article on that question. Some ancient
> precedents at the court of appeals level do say that one can build
> a patented device strictly to satisfy curiosity, etc. However, it
> is not clear whether they would hold up, or whether they would be
> considered pursuasive in other jurisdictions.
>
> Note that this concerns personal use. There was a case where a generic
> drug manufacturer started doing the bioavailability tests on some
> drug before the patent ran out. That was ruled to be an infringing
> "use" even though the drug was not used to cure any disease.

> In case you don't know, the U.S. is divided into court of appeals
> districts. Federal District Court cases get appealed to the court
> of appeals for the district. A court of appeals precedent is only
> valid within that district. They are considered "persuasive" in other
> districts. It happens fairly frequently that the same issue gets
> decided different ways in different court of appeals districts.
>
> In that event, the Supreme court will often take the next case involving
> that issue so that their can be a uniform rule.

I will try to look up the law review article and the relevant cases.
This matter is of some personal interest.

End of Note from Temporary Moderator]

Lee Hollaar

unread,
Jan 20, 1992, 4:02:57 PM1/20/92
to
>[ Note from Temporary Moderator

>
>> In case you don't know, the U.S. is divided into court of appeals
>> districts. Federal District Court cases get appealed to the court
>> of appeals for the district. A court of appeals precedent is only
>> valid within that district. They are considered "persuasive" in other
>> districts. It happens fairly frequently that the same issue gets
>> decided different ways in different court of appeals districts.
>>
>> In that event, the Supreme court will often take the next case involving
>> that issue so that their can be a uniform rule.
>End of Note from Temporary Moderator]

All appeals that involve claims under the patent act are heard by the Court of
Appeals for the Federal Circuit. One of the reasons why Congress established
this court was to eliminate the possiblity of different appeals court
decisions regarding patents by having a single court handle all appeals. This
makes it unlikely that the Supreme Court will hear an appeal in a patent case.
The CA-FC was formed from the old Court of Claims and the Court of Customs and
Patent Appeals.

[Thanks for the clarification on this. Temporary Moderator

Your statements don't contradict my statements in general, e.g. for
criminal procedure. Of course. Thanks again for the posting ]

Dan Bernstein

unread,
Jan 20, 1992, 3:57:41 PM1/20/92
to
In article <1992Jan19.050...@netcom.COM> you write:
> Is it forbidden by patent law to build a patented device in one's back
> yard for ones own use?

Yes. Special exceptions aside, if you make, use, or sell a patented
invention, you are infringing the patent. The most important broad class
of exceptions is for what's usually called experimental use. I advise
you to take the following paragraph with a grain of salt:

> > There was a law magazine article on that question. Some ancient
> > precedents at the court of appeals level do say that one can build
> > a patented device strictly to satisfy curiosity, etc. However, it
> > is not clear whether they would hold up, or whether they would be
> > considered pursuasive in other jurisdictions.

Here's some real case law. It's neither ancient nor forgotten. It forms
a rather strong precedent which, by comity, other courts must follow.
Should I note that one of the defendants was IBM? (Quotes courtesy of
West's USCA.)

``Experimental use does not infringe a patent.'' Chesterfield v. U.S.,
1958, 159 F.Supp. 371, 141 Ct.Cl. 838.

``An experimental use for philosophical or amusement purposes is not an
`infringement', but an experiment made commercially may be an
infringement.'' Northill Co. v. Danforth, D.C.Cal. 1943, 51 F.Supp. 928.

``Experimental use is not public use if it is conducted in good faith
for purposes of testing invention and for no other purpose not naturally
incidental to experimental purpose.'' Norfin, Inc. v. International
Business Mach. Corp., D.C.Colo. 1978, 453 F.Supp. 1072, affirmed 625
F.2d 357.

``Neither use of patented machine for experiments for sole purpose of
gratifying philosophical taste or curiosity or for instruction and
amusement nor construction of infringing device purely for experimental
purposes constitute `actionable infringement'.'' Kaz Mfg. Co. v.
Chesebrough-Pond's Inc., D.C.N.Y. 1962, 211 F.Supp. 815.

``Use of patented machine without authority from patentee for
experiments for sole purpose of gratifying philosophical taste or
curiosity or for instruction and amusement does not constitute
infringing use.'' Ruth v. Stearns-Roger Mfg. Co., D.C.Colo. 1935, 13
F.Supp. 697.

``Experimental testing by defendant of infringing apparatus for a brief
period before going into commercial production, none of products having
been commercially sold, did not constitute infringement.'' Akro Agate
Co. v. Master Marble Co., D.C.W.Va. 1937, 18 F.Supp 305.

The operative phrase (at least in California, New York, and Colorado :-))
is ``for the sole purpose of gratifying philosophical taste or
curiosity, or for instruction and amusement.'' I find it extremely
difficult to believe that any court will ever rule such use to be
infringement. Mod?

On the other hand, be aware that (e.g.) making your own RSA keys for
day-to-day communication, not just to satisfy philosophical curiosity,
is almost certainly infringement. ``Infringer of patent cannot escape on
ground of experimental use where it used machines to operate upon
customers' products in the ordinary course of business.'' Spour, Waldron
& Co. v. Bauer Bros. Co., D.C.Ohio 1938, 26 F.Supp. 162.

---Dan

[Note from Temporary Moderator

These appear, from the citations, to be District Court cases and thus
have no precedential value outside the immediate district (usually
part of a state).

I will look up my references and followup.

THANKS FOR AN EXCELLENT POST!!!!

ji...@microsoft.com

unread,
Jan 28, 1992, 8:06:33 PM1/28/92
to
In article <920120205...@KRAMDEN.ACF.NYU.EDU> brn...@KRAMDEN.ACF.NYU.EDU (Dan Bernstein) writes:
|``Neither use of patented machine for experiments for sole purpose of
|gratifying philosophical taste or curiosity or for instruction and
|amusement nor construction of infringing device purely for experimental
|purposes constitute `actionable infringement'.'' Kaz Mfg. Co. v.
|Chesebrough-Pond's Inc., D.C.N.Y. 1962, 211 F.Supp. 815.

I wonder aloud about the applicability of these exemptions for people
who write software and distribute it is some form of freeware, copycenter,
copyleft, or other category of software. Say someone chooses to
distribute software under something like the following terms:

"Copyright 1993 Cooperative Computer Club

This software is provided solely for experimental, educational, or
amusement purposes. Any use of this software for commercial purposes,
distribution for profit, or for any other purposes besides the above
expressed purposes is strictly prohibited and violates this licensing
agreement blah blah deblah blah Violators of this licensing agreement
may be subject to copyright or patent infringement proceedings blah blah blah"

You know what I mean. Would legitimate attempts to distribute such software,
under such terms say between college professors, pass muster? Or would such
software be considered enticement to infringe? What do people think?

[Seems to me that legitimate not-for-profit software *should* pass muster
under the above exemptions -- not saying that it *would*]


ne...@think.com

unread,
Jan 30, 1992, 1:07:51 AM1/30/92
to
In article <1992Jan29....@microsoft.com> ji...@microsoft.com writes:
>In article <920120205...@KRAMDEN.ACF.NYU.EDU> brn...@KRAMDEN.ACF.NYU.EDU (Dan Bernstein) writes:
>|``Neither use of patented machine for experiments for sole purpose of
>|gratifying philosophical taste or curiosity or for instruction and
>|amusement nor construction of infringing device purely for experimental
>|purposes constitute `actionable infringement'.'' Kaz Mfg. Co. v.
>|Chesebrough-Pond's Inc., D.C.N.Y. 1962, 211 F.Supp. 815.
>
>I wonder aloud about the applicability of these exemptions for people
>who write software and distribute it is some form of freeware, copycenter,
>copyleft, or other category of software.

Note that the quoted text says "use", not "distribution". The intent is
clearly to allow a person to read a patent, make an implementation for
personal use just to see how it works first hand ("gratifying ...
curiosity") or for a limited demonstration ("for instruction"). For
instance, before committing yourself to paying the license fee for a
device, you can do some experiments to see whether it's really appropriate
for your application; in the case of software, you might want to write a
version of the program in order see whether its performance meets your
requirements.

Once you start distributing the patented device, I think you're outside the
scope of the exceptions. I don't think restrictions on the use of the
software by the recipients matters in this case.
--
Barry Margolin, Thinking Machines Corp.

bar...@think.com
{uunet,harvard}!think!barmar

Craig Burley

unread,
Jan 30, 1992, 3:32:41 PM1/30/92
to

In article <kof5hj...@early-bird.think.com> ne...@Think.COM writes:

Note that the quoted text says "use", not "distribution". The intent is
clearly to allow a person to read a patent, make an implementation for
personal use just to see how it works first hand ("gratifying ...
curiosity") or for a limited demonstration ("for instruction"). For
instance, before committing yourself to paying the license fee for a
device, you can do some experiments to see whether it's really appropriate
for your application; in the case of software, you might want to write a
version of the program in order see whether its performance meets your
requirements.

Once you start distributing the patented device, I think you're outside the
scope of the exceptions. I don't think restrictions on the use of the
software by the recipients matters in this case.

Aye, there's the rub! How can mere distribution, even in electronic form,
of essentially a _translation_ of a patented process from one language
(Legalistic English) into another language (say, C++) be considered the same
as "distributing the patented device"? If it can, then _any_ form of
translation from patent language to any other (including "plain English", as
in writing up a more readable description) must be considered potentially
infringing distribution. What would prevent me from writing an interpreter
or compiler for the patent "language" that read a patent and implemented its
software components, especially if I was able to achieve this task using
today's technology by restricting the scope of the patents I cared about?
Nothing, of course. What would prevent me distributing it? Again, no present
law could prevent that, any more than if I somehow made a robot that could
build any machine from a description (say, a non-software patent), though that
task clearly is far more difficult. Given that such a program was distributed,
what would prevent people from trivially getting this program to implement
their favorite algorithms by directing it to one or more software patents?
Only the threat that such _individual_ use _might_ be prosecuted.

If it can't, then _no_ distribution of software can ever be considered
infringing distribution, since no software, whether source, object, or
executable form, can truly be considered a _device_, but rather a
description (or, specifically, containing a description) of the patented
technique. Only the person who actually runs the program on a physical
machine (a general-purpose computer) could be said to be infringing the
patent. The person who wrote and distributed the program couldn't even
be liable for contributory infringement, any more than a person who
(legally) translates a recipe for a patented chemical process could be
considered liable for contributory infringement if a chemical factory used
the translation in violating the patent.

This is one reason I'm very concerned about software-implementation
patents. Unlike most other forms of patents, there seems to be no way
to distinguish between personal use, commercial use, and so on. And formal
language theory seems to suggest that a given idea, expressed in any
formal language, is the same, and that ideas and implementations are
ultimately indistinguishable. (But I'm no formal-language expert.) If
that's the case, it seems very unlikely that patenting of software
implementations is possible without in fact patenting ideas, and thereby
preventing people from even expressing those ideas in different forms.

I guess what I'm saying is that, unlike other forms of patents, software
patents seem to have the problem that the _expression_ of the patent (the
patent language, so to speak) is essentially equivalent to the
_implementation_ of the patented device (or _any_ device that accomplishes
the same thing). If the PTO decided to require that all software patents
be written in, say, Eiffel, to improve clarity, make patent searches easier,
and so on, which might be entirely reasonable (substitute your favorite
language, e.g. Haskell, ML, Prolog, if it helps :-), then how can one be
infringing on a patent by doing _exactly_ what the patent process promotes --
publishing the expression of the patent (i.e. copying the Eiffel code)?

And, as I pointed out earlier, I know of _no_ computer that actually
implements the operations it is claimed to implement in the ways we normally
expect (i.e. the ways we do as humans). The ADD operator doesn't add; it
accomplishes the same thing using, say, boolean XOR operations. The MULT
operator doesn't multiply. LOAD and STORE are examples that are basically
implemented as expected. But forget about divide, square root, floating-point
operations of all kinds -- I know of no computer in wide use that uses the
"canonical" (expected, as ordinary humans would expect it) implementations
for those operations.

Given that, even when a program is run on a machine, if the patent it is said
to be violating is written in terms of addition, subtraction, and
multiplication, and even though the source code (only; we can't say the object
code or executable code specifies "add" when it really only says "do whatever
is agreed by the architecture description when opcode 506 is seen") is
written in those same terms, how can the patent be violated when the
actual _implementation_ of most or all of the underlying operations is
quite different from the way a human would do it -- especially the human that
invented the patented process in the first place? For example, if the RSA
patent(s) are expressed in terms of multiplcation, exponentation, and division,
how can either source code "implementing" RSA algorithms truly be considered
infringing (when the code is just a published translation of the already
published patented algorithm) or machine code "running" RSA algorithms be
considered infringing (when the actual implementations of the algorithms are
_fundamentally different_, except in result, from that specified in the patent,
unless RSA patents are written specifying shifts, XORs, NANDs, and the like)?

Despite all the discussions about software-implementation patents pro or con,
I've seen _nothing_ that even _begins_ to answer this set of issues, except
perhaps the suggestion that any program source code that contains an
implementation of that patent is potentially infringing or co-infringing.
I totally object to this concept, if that's what permitting software-
implementation patents means, since that's a complete disregard of freedom
of speech _and_ the foundations of patent law (i.e. widespread dissemination
of patented techniques). Despite the term "implementation", published source
code _never_ actually implements any algorithm, it merely describes how it
might be implemented in a different language than the original patent.

I don't think my objections necessarily pertain to patents like the Hayes
"+++" patent (though I haven't read that one), though I'm curious why
someone can't get around that patent by pretending their modem implements
an entirely different character set, replace "+++" with "JJJ", and have
the character set map "J" to the same value that ASCII maps "+". But
despite the lunacy of permitting "+++" to stand up as a valid patent, I'm
more concerned about "pure" software patents -- patents entirely about
software, or mental, processes and implementations, for the above reasons.
Either they are fairly easily (and unknowingly) violated with today's
technologies, and trivially violated with tomorrow's, or they are, basically,
_never_ violated. In any case, they are useless and worth dispensing with
altogether, despite the apparent temporary ability for a few of these patents
to stand up in court.

By the way, I think there was someone out there who claimed that a software
implementation of, say, an automatic transmission, having all the elements
of the transmission but only in software (and thus in relation to, essentially,
a "virtual world" containing a road, an engine, a car, &c), should be
considered an infringement of a patent on a real automatic transmission.
Needless to say, I totally disagree with this notion, and in fact don't even
care to hear from anyone who thinks virtual implementations of real-world
things, where the virtual things cannot _possibly_ achieve the same real-world
results as the real-world things, should be considered to infringe on patents
on the real-world things. But someone very "pro" software patents might well
believe this kind of thing. If you really think you can reasonably defend this
sort of thing, go ahead and give it a try, I guess.
--

James Craig Burley, Software Craftsperson bur...@gnu.ai.mit.edu
Member of the League for Programming Freedom (LPF)

Dale R. Worley

unread,
Feb 4, 1992, 3:08:16 PM2/4/92
to
In article <BURLEY.92J...@geech.gnu.ai.mit.edu> bur...@geech.gnu.ai.mit.edu (Craig Burley) writes:
Aye, there's the rub! How can mere distribution, even in electronic form,
of essentially a _translation_ of a patented process from one language
(Legalistic English) into another language (say, C++) be considered the same
as "distributing the patented device"?

The C++ version can be executed in an economically useful way. The
English version cannot. Thus, the C++ version is a "device", while
the English version is just a "description of a device". (Of course,
the distinction hinges on the fact that it is expensive and difficult
to translate the one to the other.) Similarly, the drawings of a
machine in the patent documents are descriptions of the machine, not
the machine itself, even though it is clear how to translate the
drawings into the machine.

What would prevent me from writing an interpreter
or compiler for the patent "language" that read a patent and implemented its
software components, especially if I was able to achieve this task using
today's technology by restricting the scope of the patents I cared about?
Nothing, of course.

Except the fact that no one knows how to do it. When it becomes
possible, the laws will be adjusted in some way to compensate for it.

Dale Worley Dept. of Math., MIT d...@math.mit.edu
--
P.S.: I did like the comment about how all INTERCAL compilers refuse to
compile the 104th line of any program, and that the workaround was to omit
that line. Makes at least as much sense as half the bug warnings I read...

Scott McGregor

unread,
Feb 6, 1992, 8:45:23 PM2/6/92
to

Craig Burley makes a number of interesting comments and indeed a very
interesting and tight argument about the inconsistency of software patents.
However, it seems to me to be based upon some assumptions about what a
patent is that are different from what the patent laws suggests, and
what the PTO seems to act on, and what inventors seeking patents expect.
Craig writes:

> I guess what I'm saying is that, unlike other forms of patents, software
> patents seem to have the problem that the _expression_ of the patent (the
> patent language, so to speak) is essentially equivalent to the
> _implementation_ of the patented device (or _any_ device that accomplishes
> the same thing).

The assumption that Craig seems to be building on is that patents cover
only devices, not processes. Unfortunately the aforementioned groups
seem to think that processes, and not simply the devices that perform
them are patentable material. Secondly, Craig seems to assume that
patent should cover what is in the patent application itself. However,
typical patent practice holds that the patent application is only a
description of process or device, not the actual working model. In the
case of software, it is acceptable to submit actual source code as part
of the description of how to build the device or process, but it is not
required, a high level flow chart might be a quite acceptable alternative.

Because Craig assumes that patents applies to devices not processes, he
ignores the fact that most of his arguments are not limited to software
patents alone, but to any process (i.e. a process described by set of
IDEAL parts, steps and procedures followed in a formal way). Most of
Craigs arguments would argue just as persuasively against any patent
process, even one for rubber curing. Indeed that might be viewed as one
explanation why the justices decided Diamond vs. Diehr the way they
did--the alternative might have undermined all process patents. It may
be that because Craig ignores the interpretation of a patent as applying
to processes (referring instead to hardware devices) that he overlooked
these other class of patents, or maybe he thinks they shouldn't allowed
to. I can't tell from his remarks. But since his part of his argument
seems based upon this point, a point not conceeded by those in the
patent infrastructure--he is at the risk of arguing past others who make
opposing assumptions.

Craig's second assumption, concerning expression of a thing vs. the
thing itself, can also lead to him arguing past others used to the view
that there is no "thing" in a patent, ONLY a description of that thing.
In that respect others would not see his point about translation, since
ALL patent text would have to be translated (implemented) to another
form to be operable. In such a view, it won't matter if that
implementation is in eiffel or C any more than it would matter whether
an implementation of a patented brake was in hardened steel or titanium.

I bring these points up not because Craig is right or wrong, but merely
to point out that software opponents sometimes fail to convince others
because they start out with assumptions not generally recognized by
those others. Without common starting points there is no ensuring that
all people will reason to the same conclusion. Indeed, I believe that
this is most of what is going on in the debates of this topic here. I
wonder for example, whether the same inconsitancies result if you assume
that ALL patent text must be translated/implemented to achieve the
device or process covered. Or if it is possible avoid risking all
process patents when attacking software patents. The patent office
distinguishes between algorithms and processes in that the latter is
patentable and the former not. Is there a consistant anti software
patent, pro process patent position that maintains the distinction, even
if devious author attempts to clothe a software patent in references to
changes to electromagnetic states in magnetic media or chips?


Scott McGregor

Paul Eggert

unread,
Feb 10, 1992, 1:00:00 AM2/10/92
to
mcgr...@hemlock.Atherton.COM (Scott McGregor) asks:

Is there a consistant anti software patent, pro process patent position

that maintains the distinction [between algorithms and processes], even if
[a] devious author attempts to clothe a software patent in references to


changes to electromagnetic states in magnetic media or chips?

Yes. There are several reasonable ways to make a consistent distinction
between software patents and other patents. Perhaps the best known is the
position taken by the League for Programming Freedom: (1) The development,
distribution and/or use of a computer program should never be held to infringe
any patent. (2) A combined hardware/software system should infringe a patent
only if the hardware alone does so, or nearly. (3) If the hardware is a
general-purpose computer, then the combination should infringe only patents
covering the construction of such computers--no matter what the software does.

Another consistent way to distinguish software patents is the position taken by
Dan Bernstein: that you shouldn't be able to patent mental processes, i.e.
processes that in principle you can do in your head.

More details about these two positions can be found in my 1991/11/25
posting to this newsgroup entitled ``definition of software patents''.


... software [patent] opponents sometimes fail to convince others


because they start out with assumptions not generally recognized by
those others.

The same can be said for software patent proponents. Another problem is that
software patent proponents often seem to ignore earlier postings in this
newsgroup (:-). However, since this is Usenet, we should expect some noise,
and not let it distract us from the important issues.

Paul Eggert

unread,
Feb 10, 1992, 1:00:00 AM2/10/92
to
mcgr...@hemlock.Atherton.COM (Scott McGregor) asks:

Is there a consistant anti software patent, pro process patent position

that maintains the distinction [between algorithms and processes], even if

[a] devious author attempts to clothe a software patent in references to


changes to electromagnetic states in magnetic media or chips?

Yes. There are several reasonable ways to make a consistent distinction


between software patents and other patents. Perhaps the best known is the
position taken by the League for Programming Freedom: (1) The development,
distribution and/or use of a computer program should never be held to infringe
any patent. (2) A combined hardware/software system should infringe a patent
only if the hardware alone does so, or nearly. (3) If the hardware is a
general-purpose computer, then the combination should infringe only patents
covering the construction of such computers--no matter what the software does.

Another consistent way to distinguish software patents is the position taken by
Dan Bernstein: that you shouldn't be able to patent mental processes, i.e.
processes that in principle you can do in your head.

More details about these two positions can be found in my 1991/11/25
posting to this newsgroup entitled ``definition of software patents''.


... software [patent] opponents sometimes fail to convince others


because they start out with assumptions not generally recognized by
those others.

The same can be said for software patent proponents. Another problem is that

Scott L. McGregor

unread,
Feb 18, 1992, 4:37:20 PM2/18/92
to

In article <#+_*&y6...@twinsun.com> egg...@twinsun.com (Paul Eggert)
writes:

>Yes. There are several reasonable ways to make a consistent distinction
>between software patents and other patents. Perhaps the best known is
>the position taken by the League for Programming Freedom: (1) The
>development, distribution and/or use of a computer program should never
>be held to infringe any patent. (2) A combined hardware/software system
>should infringe a patent only if the hardware alone does so, or nearly.
>(3) If the hardware is a general-purpose computer, then the combination
>should infringe only patents covering the construction of such
>computers--no matter what the software does.

So, let's consider a rubber curing process ( E.g. add 2 parts of this
chemical, then 1 part of this chemical, mix at 5 rpm for 4 hours at 150
degrees F, then cool for 14 hours in a water bath at 38 degrees F). This
is just a process description. Note that there is no equipment yet. Now,
my original question asked for solutions that would not overturn the
patentability of all processes. Here's a process description, let's
assume it is patented. Now what happens if someone builds a factory, with
a vat with a mixer, heater, and cooling system, plus two valve controlled
additive tanks. This is a physical system for making rubber. This is
different from the process, and also from the resultant product (the
rubber). None of equipment (vat, valves, tank, mixer, heater and
refridgerator) may be patented, nor may their arrangement in the factory.
But if this equipment is used according to the process, then it is an
infringement. The controlling of the equipment, in accordance to the
patented process, by management is what infringes.

Now lets see what happens if we introduce a computer. Let's say we hook up
a general purpose computer in the factory. It has a number of RS232
ports. One port is hooked up to the electric control for the heater, one
for the refridgerator, one for a clock, one for each of the valves, etc.
Still the factory now including the computer (but no software) still is
not infringing--as long as they are not running that process. But someone
writes a program for this computer. It does things like send to various
different RS232 ports strings like "open valve" "38 degrees F", etc. It
reads from the clock to determine when to send these strings down. Now
when the program runs, it causes the factory to perform the patented
process.

Now here we have done only one thing, writen and run some software, and
apparently a non software process is infringed. What are the possible
responses we could take? There are two:

1) By the LPF view, we have met all 3 rules--it is definately software
now, so it must be okay to infringe the rubber making process, because LPF
says infringement should not apply to software. We can also conclude this
using Dan Bernstein's rule. Is the process itself abstractly describable
and is it able to perform the abstract description in one's minds with
mental representations? Definately--you can imagine the whole factory and
process in your mind, and probably just did above. Of course, this
creates a gaping hole for every would be physical process infringer to
drive a truck through: Just rewrite the process as a program, and you
can't be held for infringing. If these sorts of rules for separating
software algorithm patents from process patents are used then we undermine
the starting goal that I set--namely to define a rule that prevents
software patents WITHOUT undermining other process patents.

2) Of course, we could go the other way, and say look--you can't get
around the patent on the physical process just by taking the written
description and rewriting it as software. This protects the physical
process patent status--but what has become of the goal of preventing
patents from affecting software from patent issues? We have lost the LPF
and Bernstein models. In fact, it may be that the programmer who wrote
the code that sent "38 degrees F" to "/dev/refrig" hadn't the slightest
idea that this was going to be used to cure rubber at all, and yet that
programmer is still smack dab in the patent suit.

My reason for talking about rubber processes above is because this is the
same kind of question that was raised in Diamond vs. Diehr, a suit about a
rubber process, but where the question of infringement came down to
whether using a computer let you off the hook. But lets be clear about
this. If I build a black box and it takes signals in and produces signals
out, is the process it uses to transform those signals patentable or not?
Let's say it is a Dolby s/n reducer. It's analog electronic circuits. So
let's say it patentable. Now I tell you that I've built a new version
that takes the same inputs, generates the same outputs, uses the same
process--but this time there is an A/D converter connected to a general
purpose computer running an FFT connected to a D/A convertor. That FFT is
just the digital analog of what the old analog hardware did, but now in
software. Can I now safely infringe Ray Dolby's patents? If so, doesn't
that mean his process patents are meaningless?

The problem with the LPF and Bernstein models is that they break when they
are applied to software embedded in physical processes. That someone can
do an algorithm in their mind, or in a computer, is of little utilitarian
value if the results stay strictly in their mental state, or in registers
in computers, and so no one ever acts on them.. It is only when they are
output, changing physical states on disk or on output ports, or printed or
displayed that they can be used to achieve utilitarian objectives. But at
that state they are physical processes--the only difference is what goes
on inside the black box.

>> ... software [patent] opponents sometimes fail to convince others
>> because they start out with assumptions not generally recognized by
>> those others.

>The same can be said for software patent proponents.

Yes, that's most likely true. And from a debate standpoint that leaves us
at the proverbial standoff. But just as software is valuable only after it
leaves the mental only world and begins to effect the physical world, so
the debate will only matter when it is translated into real world actions.
The reality is that only the congress, the courts and the PTO are in a
position to affect changes to what is patentable or is not. They aren't
starting from no position and trying to choose one for the first time.
They already have one, and it allows software patents at present. Rolling
back the clock mentally doesn't make it so physically for these people. If
you want them to change the rules, it is not enough to say that the
proponents case as faulty as the opponents case. It is not enough to say
that you have noble goals. It is necessary to demonstrate the causal
connections that prove the calamities that have not yet caused the
software industry from growing spectacularly. This is not so because I say
it must be this way. This is so because that is how the congress and
courts work. If software opponents don't care about what happens in
reality and just want to vent their frustration--that's fine. But if they
want to have an effect, as I believe the authors of the LPF viewpoint do,
they need to sharpen their argument a bit more. They are off to a good
start, but they haven't reached causal proof yet.

> Another problem is
>that software patent proponents often seem to ignore earlier postings in
> this newsgroup (:-).

Perhaps this is directed to me. I certainly don't mean to ignore earlier
postings. I've studied the LPF rules closely, and Bernstein's rule as
closely as I could from the postings that I have received. Both do seem
good at making sure that they protect all of the things people would think
of as software. But I think that they fail in that they over restrict
process patents. I don't think this has been well defended in past
postings. For some people, who don't think process patents are a good
idea either, that may seem fine. But the LPF viewpoint suggests that its
authors goals are more limited, and that they don't want to undermine
other patents with their changes. Certainly some software patent
opponents here have claimed that they actively support patents in other
areas including process patents. Because every process description can be
transformed into a software algorithm, this continues to be an area of
concern for people who would oppose software patents, but support process
patents.
--
Scott L. McGregor mcgr...@atherton.com
Atherton Technology fax: 408-744-1607
1333 Bordeaux Drive
Sunnyvale, CA 94089

Ron Rivest

unread,
Feb 19, 1992, 9:45:25 PM2/19/92
to

I'm not convinced that there is really a well-founded argument against
software patents per se. At least, I've never heard one. There are certainly
many bad software patents that have been issued, but what is the argument
against ALL software patents?

Let me give a thought example.

Suppose someone proves that P = NP, and in doing so develops a
polynomial-time algorithm for solving any problem in NP. Depending on
whether or not his algorithm was patentable, he would very likely (if
he were motivated to capitalize on his efforts), do one of two things:
(A) if his algorithm was not patentable, he would set up shop solving
other people's problems, keeping his algorithm a trade secret.
In other words, you bring your traveling salesman, knapsack
or integer programming problem to him, and he solves it for
$5,000 a problem. The algorithm might remain secret for
many years, and might even die with him, not to be discovered
for centuries. (What was Fermat's proof for his Last Theorem,
anyway?)
(B) if his algorithm is patentable, he discloses it in a patent,
collects royalties for 17 years, and then the idea is in the
public domain.

I think scenario (B) is arguably preferable to scenario (A), in terms
of any reasonable measure of social utility. (We may presuppose that,
since it is not our invention, no other choices are open to us. We
have to define the rules for inventors to live by.) Achieving (B) is
exactly the kind of thing that the patent law is intended to
do---require someone to disclose his invention in return for a
limited-time exclusive use (or licensing rights). Society is better
off if such an invention were, after a limited time, in the public
domain. I think any argument against this interpretation would
probably have to be against all patents per se. But I would like to
hear opinions.

My example was carefully chosen to be an invention that is not what
you might call ``self-revealing''. We can define an invention to be
``self-revealing'' if practicing or using this invention in the
specified manner is more-or-less guaranteed to make its operation and
key inventive idea clear to someone skilled in the art.

For example, consider pop-tops on soda cans. Once you see one, it's
obvious what the idea is; it is ``self-revealing''. Same goes for
overlapping windows on computer screens, say. (Or XOR cursors.)

One plausible argument against most software patents is that they are
generally self-revealing. Self-revealing inventions are a little bit
strange to patent, because its not clear why the goverment should
choose to grant a patent for one. If the goal of the patent process
is to get inventions in the public domain, eventually, then modifying
the law to exclude the patentability of self-revealing inventions
would also meet that goal. Once the invention is made, the only way
to practice it is in some self-revealing manner that effectively
places it in the public domain.

I realize that the notion of ``self-revealing'' may be a bit difficult
to define precisely. Probably you want to distinguish reverse
engineering (disassembling object code, or doing a chemical analysis,
say) from ordinary operation, and so on. I don't know if this can be
done in a reasonable manner. It's probably an easier question to
answer, however, than ``what is an algorithm'' or ``what is a mental
process''.

So I raise the key question: should ``self-revealing'' inventions be
patentable?

I suppose the strongest argument in favor of patenting self-revealing
inventions is to protect the investment a company may have made in
making the invention in the first place. Are there good examples of
areas where self-revealing inventions are expensive to create?
Pharmaceuticals come to mind, but to my mind they are not really
self-revealing (you have to be a chemist, not a patient, to figure out
what's in the pills). Certainly a policy against ``self-revealing''
inventions would outlaw the patenting the ``look and feel'' of a
software system.

Perhaps we are asking the wrong question when we ask ``should software
be patentable?'' The notion of ``being software'' is a technical one
that is not directly related to the goals of the patent system. Other
notions, such as utility, obviousness, or self-revealingness are more
germane. We might focus on identifying these criteria more carefully,
rather than trying to argue for or against the patentability of
software per se.


Kim Letkeman

unread,
Feb 20, 1992, 8:33:49 AM2/20/92
to

In the last week there must have been 3 or 4 postings reiterating the
LPF and the Dan Bernstein positions on software patents. Here's my
view.

In article <1992Feb17.1...@vicom.com> egg...@twinsun.com (Paul Eggert) writes:

| Yes. There are several reasonable ways to make a consistent
| distinction between software patents and other patents. Perhaps the
| best known is the position taken by the League for Programming
| Freedom: (1) The development, distribution and/or use of a computer
| program should never be held to infringe any patent. (2) A combined
| hardware/software system should infringe a patent only if the
| hardware alone does so, or nearly. (3) If the hardware is a
| general-purpose computer, then the combination should infringe only
| patents covering the construction of such computers--no matter what
| the software does.

1. This position causes problems in situations where people leave one
company (with source in hand) and reimplement a product for
another. Or where someone gets hold of the original source and
implements a competing product. Copyright would likely be
violated, but probably difficult to prove. A patent, on the other
hand, can protect the product itself by protecting key elements and
methods (and algorithms.)

Note: I'm not advocating that competition be eliminated, just that
it be fair. Theft of source should not be rendered virtually
immune from penalty.

2. This allows a company to create an embedded system where all of the
important work is done by a computer program and thus to be immune
from patent infringement. This would provide the means to skirt all
existing patents on processes or devices that are hardware only and
of course there would be no point in any future patents on any
process that could possibly be controlled by a computer or any
device that could be implemented as an embedded system, and how
many couldn't?

3. This one is fine assuming that the LPF is not advocating the free
distribution of copyrighted software with immunity.

| Another consistent way to distinguish software patents is the
| position taken by Dan Bernstein: that you shouldn't be able to
| patent mental processes, i.e. processes that in principle you can
| do in your head.

This position simply trivializes the effort required to turn the high
level thinking one does in one's head into something anyone would care
to use (and pay for.) That effort often causes key elements and
implementations to change before the product becomes useful. I.e. what
one might patent out of one's head is often not what one actually
implements to get a working product.

I do agree that the patent office should have a better grasp of
trivial and fundamental algorithms (e.g. XOR cursor) so as to avoid
the constant backlash against stupid patents, but Dan's position is so
extreme and applies to so many things as to have no practical
application as stated.

| More details about these two positions can be found in my 1991/11/25
| posting to this newsgroup entitled ``definition of software patents''.

Both positions are fundamentally flawed when put into practice.
That's the element that always seems to be missing from these
particular anti-software-patent theses.

In comparing the two positions to each other, I find that the LPF's is
actually implementable. It would simply mean eliminating the patent
system as we know it since pretty much anything can be implemented as
an embedded system.

Dan's position, on the other hand, applies to so many things (how many
designs aren't done in one's head first?) as to be completely
impractical. That position would eliminate the entire patent system
because it would be impossible to set a reasonably understandable (by
more than Paul and Dan) boundary around what can be done in one's
head.

| ... software [patent] opponents sometimes fail to convince
| others because they start out with assumptions not generally
| recognized by those others.
|
| The same can be said for software patent proponents. Another
| problem is that software patent proponents often seem to ignore
| earlier postings in this newsgroup (:-). However, since this is
| Usenet, we should expect some noise, and not let it distract us from
| the important issues.

That's a pretty smug position to take. You appear to be assuming that
everyone who hasn't seen the light is merely contributing noise. I
would counter that the noise in this debate is the ever louder
shouting of these two (now classic) anti-software-patent positions.

By the way, the "often seem to ignore previous postings" comment has
appear before, so the smiley is a bit dishonest. Perhaps that is one
reason why the pro-patent people often seem to ignore these postings.

[ MOD- please keep the flames down to a reasonable level or save it for
usage in unmoderated groups. Thanks]

--
Kim Letkeman k...@Software.Mitel.COM

Scott L. McGregor

unread,
Feb 21, 1992, 1:14:58 PM2/21/92
to

In article <1992Feb17.1...@vicom.com> egg...@twinsun.com (Paul Eggert)
writes:

>Yes. There are several reasonable ways to make a consistent distinction


>between software patents and other patents. Perhaps the best known is the
>position taken by the League for Programming Freedom: (1) The development,
>distribution and/or use of a computer program should never be held to infringe
>any patent. (2) A combined hardware/software system should infringe a patent
>only if the hardware alone does so, or nearly. (3) If the hardware is a
>general-purpose computer, then the combination should infringe only patents
>covering the construction of such computers--no matter what the software does.

Note that in the Diamond vs. Diehr rubber curing process case, the process
patent enforcement would be denied by the above, because the case involves the
*use* of software (rule 1). Additionally, it is a process patent, not a device
patent, and uses standard hardware (vats, valves, etc.) and general purpose
computers (rules 2 and 3). Thus this particular definition undermines a
physical process patent, when that physical process is mediated by a general
purpose computer under the control of software. Since effectively any process
can be put under computer control, effectively all process patents would be
undermined by these rules.

> Another consistent way to distinguish software patents is the position taken
by
> Dan Bernstein: that you shouldn't be able to patent mental processes, i.e.
> processes that in principle you can do in your head.

Here too, we find that the Diamond vs. Diehr rubber curing process would be at
risk. You can perform the rubber curing process in your mind, imagining
suitable vats, valves, connected in appropriate ways, operated for appropriate
times under appropriate temperatures, and yielding mental rubber. Or you could
simulate the process on computer. This is not fundamentally different from
performing an algorithm that includes changes to a video display, data line or
disk in your head. That you have the mental results doesn't matter until you
implement them in reality (by changing the video display, signals on the data
line or magnetic polarities on disk) any more in this case than in the former.
Again, the rule would undermine all processes patent, because as above all
processes which are describable (a requirement for patentability) are in
principle possible to do in your head. This is a primary difference between a
device and a process. Of course, doing them in your head doesn't get you real
results--it is USING the process in the real world that get's real results, but
both the LPF and Bernstein models would deny enforcement to REAL WORLD USE as
well as to the merely mental simulations.

Raul Deluth Miller-Rockwell

unread,
Feb 23, 1992, 3:04:42 PM2/23/92
to
[mod- amalgmated two articles from same author on same subject.]

Scott L. McGregor:


So, let's consider a rubber curing process ( E.g. add 2 parts of this
chemical, then 1 part of this chemical, mix at 5 rpm for 4 hours at 150
degrees F, then cool for 14 hours in a water bath at 38 degrees F). This
is just a process description.

...


Now lets see what happens if we introduce a computer. Let's say we
hook up a general purpose computer in the factory. It has a number
of RS232 ports. One port is hooked up to the electric control for
the heater, one for the refridgerator, one for a clock, one for
each of the valves, etc.

....


1) By the LPF view, we have met all 3 rules--it is definately software
now, so it must be okay to infringe the rubber making process, because LPF
says infringement should not apply to software.

No -- the patent is about the fabrication of rubber. General purpose
computers do not fabricate rubber. This is no different than
non-automatic fabrication (where a human being is operating some of
the equipment).

2) Of course, we could go the other way, and say look--you can't
get around the patent on the physical process just by taking the
written description and rewriting it as software. This protects
the physical process patent status--but what has become of the goal
of preventing patents from affecting software from patent issues?
We have lost the LPF and Bernstein models.

Neither the LPF nor the Bernstein models deal with use of a computer
to replace a human operator.

If I build a black box and it takes signals in and produces signals
out, is the process it uses to transform those signals patentable
or not? Let's say it is a Dolby s/n reducer.

Just a moment here... if I can achieve the effect of Dolby s/n
reduction using, for example, a pickup and a transducer on opposite
sides of a specially constructed air cavity, is that infrigning on the
Dolby patent? It's my understanding that patents are not meant to
apply to the symbolic aspects of the patented device, but to the
physical mechanisms used.


In other words, "look and feel" are exactly what patents are _not_
supposed to effect. Talk to your lawyer for clarification on this
issue.

The problem with the LPF and Bernstein models is that they break
when they are applied to software embedded in physical processes.

No more than using human labor in a factory nullifies the effect of
patents.

... It is only when they are output, changing physical states on


disk or on output ports, or printed or displayed that they can be
used to achieve utilitarian objectives. But at that state they are
physical processes--the only difference is what goes on inside the
black box.

And the only difference with a human is what goes on inside the
mind... In any event, the rubber factory example is not within the
realm of a general purpose computer that doesn't have a rubber factory
hooked up to it.

--
Raul Deluth Miller-Rockwell <rock...@socrates.umd.edu>
The U.S. federal government went another billion dollars into debt today.

Date: Sun, 23 Feb 92 15:04:42 -0500
From: Raul Deluth Miller-Rockwell <rock...@socrates.umd.edu>
Subject: Re: distinction between algorithms and processes
References: <#+_*&y6...@twinsun.com> <40...@cluster.cs.su.oz.au>
Distribution: world

Scott L. McGregor:


So, let's consider a rubber curing process ( E.g. add 2 parts of this
chemical, then 1 part of this chemical, mix at 5 rpm for 4 hours at 150
degrees F, then cool for 14 hours in a water bath at 38 degrees F). This
is just a process description.

...


Now lets see what happens if we introduce a computer. Let's say we
hook up a general purpose computer in the factory. It has a number
of RS232 ports. One port is hooked up to the electric control for
the heater, one for the refridgerator, one for a clock, one for
each of the valves, etc.

...


Now here we have done only one thing, writen and run some software,
and apparently a non software process is infringed. What are the
possible responses we could take? There are two:

1) By the LPF view, we have met all 3 rules--it is definately software
now, so it must be okay to infringe the rubber making process, because LPF
says infringement should not apply to software.

No -- the patent is about the fabrication of rubber. General purpose
computers do not fabricate rubber. This is no different than
non-automatic fabrication (where a human being is operating some of
the equipment).

2) Of course, we could go the other way, and say look--you can't
get around the patent on the physical process just by taking the
written description and rewriting it as software. This protects
the physical process patent status--but what has become of the goal
of preventing patents from affecting software from patent issues?
We have lost the LPF and Bernstein models.

Neither the LPF nor the Bernstein models deal with use of a computer
to replace a human operator.

If I build a black box and it takes signals in and produces signals
out, is the process it uses to transform those signals patentable
or not? Let's say it is a Dolby s/n reducer.

Just a moment here... if I can achieve the effect of Dolby s/n
reduction using, for example, a pickup and a transducer on opposite
sides of a specially constructed air cavity, is that infrigning on the
Dolby patent? It's my understanding that patents are not meant to
apply to the symbolic aspects of the patented device, but to the
physical mechanisms used.

In other words, "look and feel" are exactly what patents are _not_
supposed to effect. Talk to your lawyer for clarification on this
issue.

The problem with the LPF and Bernstein models is that they break
when they are applied to software embedded in physical processes.

No more than using human labor in a factory nullifies the effect of
patents.

... It is only when they are output, changing physical states on


disk or on output ports, or printed or displayed that they can be
used to achieve utilitarian objectives. But at that state they are
physical processes--the only difference is what goes on inside the
black box.

And the only difference with a human is what goes on inside the
mind... In any event, the rubber factory example is not within the
realm of a general purpose computer that doesn't have a rubber factory
hooked up to it.


[Second Article]

Paul Eggert:


>Perhaps the best known is the position taken by the League for
>Programming Freedom: (1) The development, distribution and/or use
>of a computer program should never be held to infringe any patent.
>(2) A combined hardware/software system should infringe a patent
>only if the hardware alone does so, or nearly. (3) If the
>hardware is a general-purpose computer, then the combination
>should infringe only patents covering the construction of such
>computers--no matter what the software does.

Scott L. McGregor:


Note that in the Diamond vs. Diehr rubber curing process case, the
process patent enforcement would be denied by the above, because
the case involves the *use* of software (rule 1).

My opinion is that while the
development of the software involved wouldn't be considered a patent
violation, the manufacture of rubber by that process would. The
software involved in manufacturing that rubber is a trivial part of
the patent. The claim that since the software is unpatentable
the whole patent is invalid makes about as much sense as saying that
since a generic 3/8" bolt is unpatentable, you can't patent something
which uses these bolts in its construction.

Additionally, it is a process patent, not a device patent, and uses
standard hardware (vats, valves, etc.) and general purpose
computers (rules 2 and 3).

You're saying (about rule 2) that if a human operator were to take the
place of the computer that this would not infringe the patent? You're
saying (about rule 3) that you consider a rubber factory a general
purpose computer?

Thus this particular definition undermines a physical process
patent, when that physical process is mediated by a general purpose
computer under the control of software. Since effectively any
process can be put under computer control, effectively all process
patents would be undermined by these rules.

Only if the process patent could, in principle, also be circumvented
by hand crafting techniques.

>... the position taken by Dan Bernstein: that you shouldn't be


> able to patent mental processes, i.e. processes that in
> principle you can do in your head.

Here too, we find that the Diamond vs. Diehr rubber curing process


would be at risk. You can perform the rubber curing process in
your mind, imagining suitable vats, valves, connected in
appropriate ways, operated for appropriate times under appropriate
temperatures, and yielding mental rubber.

If not kindly note that, at the present stage of human development,
the physical properties of mental rubber differ rather significantly
>from that produced by the Diamond vs. Diehr rubber curing process. In
fact, I'm not sure that many people would consider delusions of rubber
to have physical properties.

This is not fundamentally different from performing an algorithm
that includes changes to a video display, data line or disk in your
head. That you have the mental results doesn't matter until you
implement them in reality (by changing the video display, signals
on the data line or magnetic polarities on disk) any more in this
case than in the former.

The difference is that computer results are symbolic in nature and
thus, at least in the US, outside the scope of patents. It does not
matter significantly whether a computer displays the results in terms
of high energy phosphor emissions, or in terms distortions in
long-chain polymers, or (for the case of many software patents) as ink
or other substances on paper. Likewise the internal representation of
the information is not significant (for example, conceptually, a
software patent would apply even to computers using mercury delay
lines) -- what matters is what information is being represented.

Again, the rule would undermine all processes patent, because as
above all processes which are describable (a requirement for
patentability) are in principle possible to do in your head. This
is a primary difference between a device and a process. Of course,
doing them in your head doesn't get you real results--it is USING

the process in the real world that get's real results, but both the


LPF and Bernstein models would deny enforcement to REAL WORLD USE
as well as to the merely mental simulations.

Perhaps. I've yet to see how this applies to the rubber curing
patent.

In any event, there needs to be a distinction between patents which
are essentially symbolic in nature and patents which are essentially
physical in nature.

--
Raul Deluth Miller-Rockwell <rock...@socrates.umd.edu>
The U.S. federal government went another billion dollars into debt today.

[mod- re dolby
Infringement could indeed be likely, it all depends on what the
claims of the patent in question extend to.
]

Matt Heffron

unread,
Feb 23, 1992, 4:36:42 PM2/23/92
to

>1) By the LPF view, we have met all 3 rules--it is definately software

>now, so it must be okay to infringe the rubber making process, because LPF
>says infringement should not apply to software. We can also conclude this

[Mod- Paragraph deleted...Saving Bandwidth...]

The THIRD response is that the SYSTEM infringes the patent, not just the
software. Actually, I expect that it would probably be stated that the
owner of the factory infringed the patent by USING the system of chemical
process hardware (heater, mixer, etc.), computer hardware and software to
manufacture rubber by the patented process. The infringment must be interpreted
in terms of the actual claims of the patent. If the same process with different
chemicals made ice cream :-) instead of rubber, the patent would not be
infringed. A process patent should not be infringed by the EXISTENCE of a
system which COULD duplicate the process. (I say 'should' instead of 'could'
because God only knows how the legal system treats it.) It should require USE
of the system. (I suppose that marketing the system could also be seen as
contributory infringement.)

In this example, the software does not infringe the patent. Using the software
TO CURE RUBBER, does. Using the software to make ice cream, does NOT. The LPF
positions (1 and 3, above) seem to apply to patents of "devices" (as opposed to
"processes"). E.g., your Dolby example below. The LPF position(2) seems to be
most applicable to process patents. The hardware of the infringing rubber
curing system includes the chemical process hardware, not just the computer. In
this case (use of) the hardware alone nearly infringes, since the actions of the
computer could (easily, in this example) be replaced by people opening and
closing valves, setting heater temperature dials, etc...

The difficulty comes in with process patents which do not affect a material
change of matter. E.g., a process which exists entirely in a mathematical
domain. It is my OPINION that patents should not be granted on such processes.

> [Mod- Remainging Paragraphs deleted...Saving Bandwidth...]

--
Matt Heffron hef...@falstaff.css.beckman.com
Beckman Instruments, Inc. voice: (714) 961-3128
2500 N. Harbor Blvd. MS X-11, Fullerton, CA 92634-3100
I'm not a lawyer & I don't speak for Beckman Instruments unless they say so.

Dan Bornstein

unread,
Feb 23, 1992, 6:50:28 PM2/23/92
to
(Note, I am Dan B*o*rnstein.)

In article <41...@cluster.cs.su.oz.au>, k...@Software.Mitel.COM (Kim Letkeman) writes:
>Dan [Bernstein]'s position, on the other hand, applies to so many things


>(how many designs aren't done in one's head first?) as to be completely
>impractical.

I think you're misinterpreting Dan's position. Doing a design in one's head
does not make that design unpatentable, (but by his position one can't patent
the idea of doing designs in one's head!).

It is just designs/ideas that can be wholly *performed* in the mental realm
that Dan says should be unpatentable. (Not me though, I'm still on the fence
about software patents.)

-dan
d...@cs.brown.edu I feel like I know her, but sometimes my arms bend back.


Charles Geyer

unread,
Feb 23, 1992, 10:13:49 PM2/23/92
to

In article <41...@cluster.cs.su.oz.au> riv...@theory.lcs.mit.edu (Ron Rivest)
writes:

>
> Suppose someone proves that P = NP, and in doing so develops a
> polynomial-time algorithm for solving any problem in NP. Depending on
> whether or not his algorithm was patentable, he would very likely (if
> he were motivated to capitalize on his efforts), do one of two things:
>
> (A) if his algorithm was not patentable, he would set up shop solving
> other people's problems, keeping his algorithm a trade secret.
> In other words, you bring your traveling salesman, knapsack
> or integer programming problem to him, and he solves it for
> $5,000 a problem. The algorithm might remain secret for
> many years, and might even die with him, not to be discovered
> for centuries. (What was Fermat's proof for his Last Theorem,
> anyway?)
>
> (B) if his algorithm is patentable, he discloses it in a patent,
> collects royalties for 17 years, and then the idea is in the
> public domain.
>
> I think scenario (B) is arguably preferable to scenario (A), in terms
> of any reasonable measure of social utility. (We may presuppose that,
> since it is not our invention, no other choices are open to us. We
> have to define the rules for inventors to live by.)

But this "presuppose" is what's doing all the work. Can you give an
example in the history of science where something like this occurred?
The last one I can think of is the solution of the cubic equation which
was kept secret by its discoverer. That was back in the 1400's I think.
Is there a more recent example?

Very few, if any, algorithms, mathematical theorems, or laws of nature are
solely the work of their so-called inventors. They build on a lot of work
that is in the air so to speak. If the "inventor" doesn't rush into print
right away, it is likely that someone else will do it. So I prefer
the scenario

(C) The inventor is not allowed to patent his wonderful
discovery, and keeps it a secret. Six months later
two other people independently discover the same thing,
one of them publishes, and goes down in history as the
great discoverer of the algorithm. The first inventor
gets a few bucks, but is eventually out of luck. Society
benefits.

That's what would happen in reality. Fermat didn't have a proof.

--
Charles Geyer
School of Statistics
University of Minnesota
cha...@umnstat.stat.umn.edu

Dan Bernstein

unread,
Feb 24, 1992, 12:12:50 AM2/24/92
to
Ron Rivest writes:
> (A) if his algorithm was not patentable, he would set up shop solving
> other people's problems, keeping his algorithm a trade secret.
> In other words, you bring your traveling salesman, knapsack
> or integer programming problem to him, and he solves it for
> $5,000 a problem.

Nobody in his right mind would use this service. Simulated annealing
works wonders for the NP-complete problems people care about. The
simplex method is adequate even for very large instances of linear
programming problems; Khachian's method and its subsequent improvements
provide guaranteed bounds if you need solutions in real time. These
advances have all come out of universities or very large companies,
which have always published their results as a matter of course. Your
hypothetical inventor wouldn't earn a penny---unless you give him a
patent, which lets him extort fees for 17 years.

Another argument: If your inventor (think of Karmarkar if you want)
really thought he could make money selling his invention, WHY WOULD HE
USE THE PATENT SYSTEM ANYWAY? Sorry for shouting, but your argument
seems to be ``If we give people algorithm patents, they'll make less
money than they would with trade secrets, so that's good for everyone.''
If this is true, why wouldn't your inventor keep his algorithm secret?
Do you think he's stupid?

---Dan

Dan Bernstein

unread,
Feb 24, 1992, 12:42:50 AM2/24/92
to
Kim Letkeman writes:
> 2. This allows a company to create an embedded system where all of the
> important work is done by a computer program and thus to be immune
> from patent infringement.

Consider, for example, an
existing patent on the process of creating glue from yeast, rather than
the traditional milk. The process consists of heating the yeast and
engaging in several other steps which I don't know much about. You claim
that the LPF position would prohibit patents on computer programs (which
is true) and that a company can write a computer program to control the
yeast-to-glue process (which is true). But this won't do anything about
infringement! If the company heats the yeast and engages in the other
necessary steps of the process, it has infringed upon the patent.

> This would provide the means to skirt all
> existing patents on processes or devices that are hardware only and
> of course there would be no point in any future patents on any
> process that could possibly be controlled by a computer or any
> device that could be implemented as an embedded system, and how
> many couldn't?

Nonsense. Kim, at least your previous articles seemed to
define a sensible position, though not one I agree with. This time
you're not talking about reality. Remember, folks: to make the glue you
have to heat the yeast.

> | Another consistent way to distinguish software patents is the
> | position taken by Dan Bernstein: that you shouldn't be able to
> | patent mental processes, i.e. processes that in principle you can
> | do in your head.

> This position simply trivializes the effort required to turn the high
> level thinking one does in one's head into something anyone would care
> to use (and pay for.)

Huh?

If in fact you come up with some important improvement which can't be
performed in one's head, go ahead and patent it. I'm only worrying about
mental processes.

> Dan's position is so
> extreme and applies to so many things as to have no practical
> application as stated.

It's quite applicable as stated. Yes, ``mental processes are not
patentable'' applies to a lot of things: there are a lot of mental
processes. There's actually a couple of court cases which state my
position verbatim. The problem is that they don't define ``mental
process.'' They also don't form a sufficient precedent to bring the CCPA
to its senses. Congress can easily overcome these obstacles.

> | More details about these two positions can be found in my 1991/11/25
> | posting to this newsgroup entitled ``definition of software patents''.

> Both positions are fundamentally flawed when put into practice.

You've failed to demonstrate this.

---Dan

Dan Bernstein

unread,
Feb 24, 1992, 12:53:21 AM2/24/92
to
Scott McGregor writes:
> You can perform the rubber curing process in your mind, imagining
> suitable vats, valves, connected in appropriate ways, operated for
> appropriate times under appropriate temperatures, and yielding mental
> rubber.

Indeed. I will fight to the death to ensure that the process of curing
mental rubber is not patentable. If you have any rubber in your head
please feel free to cure it. :-)

> Or you could
> simulate the process on computer.

Good point. My position also implies that the process of simulating
rubber curing on a computer is not patentable.

None of this has anything to do with Diamond v. Diehr, which dealt with
curing *real* rubber. That's a *physical* process.

> Again, the rule would undermine all processes patent,

No, it wouldn't. I am rapidly tiring of this argument. You cannot, no
matter how hard you try, cure real rubber in your head. (If you can I'm
sure the National Enquirer will run an article on it.) Curing rubber is
therefore not a mental process. Why do you persist in saying that it is?

My proposal only has to do with mental processes. If it's essential for
the completion of a process that it be applied to physical elements,
then my proposal doesn't say anything about the process. I mentioned in
a previous article a patent on converting yeast into glue. To carry out
this process it is essential that you begin by heating the yeast. That's
an essential physical application. The process would thus remain
patentable with or without my rules. Your claim is thus false.

---Dan

Garrett Wollman

unread,
Feb 24, 1992, 10:14:07 AM2/24/92
to
In article <41...@cluster.cs.su.oz.au> k...@Software.Mitel.COM (Kim Letkeman) writes:
>Dan's position, on the other hand, applies to so many things (how many
>designs aren't done in one's head first?) as to be completely
>impractical. That position would eliminate the entire patent system
>because it would be impossible to set a reasonably understandable (by
>more than Paul and Dan) boundary around what can be done in one's
>head.

Let's go back to our friendly rubber-curing analogy. Yes, you may
plan out your idea for a great, new rubber-curing process in your
head---indeed I would say that it is impossible not to do so before
implementing such a process. However, unless you posess such
"metapsychic" abilities as comtemplated by SF/fantasy writers, there
is *no* mental process which can actually accomplish curing rubber. It
requires physical action to accomplish. By contrast, the patents that
Dan's definition (*) would prevent are those which are *purely
symbolic in nature*. That is, Mr. James Bizdos would be out of
business, but not Goodyear (or even IBM, for that matter, since their
mental-process patents are insignificant compared to their
physical-process patents).

-GAWollman

(*)Can you believe it, I actually agree with Dan Bernstein about
something! It's already happened twice this year, and I'm not sure if
the world will survive the result! :-)

--
[Y]ou can be pretty sure that if it isn't Usenet now it will be once
it's been in contact with Usenet for long enough. - Ed Vielmetti e...@msen.com
------------------------------
Garrett A. Wollman - wol...@uvm.edu - uvm-gen!wollman

Kenneth I. Laws

unread,
Feb 24, 1992, 12:47:27 PM2/24/92
to

> In this example, the software does not infringe the patent. Using the
> software TO CURE RUBBER, does. Using the software to make ice cream,
> does NOT.

I'll buy that. Software does not infringe patents. If there is any
infringement, it comes from use of the software. (This is one way
that patents differ from copyright.)

So what does that get us, aside from linguistic clarity? The LPF
wants programmers to have the freedom to write code without fear
of infringing patents. We can infer that they also want to run
the code, or sell it to people who want to run it. If you accept
that use of code can infringe a process patent (when used for the
purpose described in the patent), you have to face the problem that
Scott raised: either process patents are threatened or programmers
and their customers are constrained by patent law.

-- Ken
--

Dr. Kenneth I. Laws, (415) 493-7390, la...@ai.sri.com.
Moderator of the Computists International AI/IS/CS mutual-aid association.
Ask about my weekly online career newsletter, The Computists' Communique.

Kenneth I. Laws

unread,
Feb 24, 1992, 1:05:47 PM2/24/92
to

> its not clear why the goverment should
> choose to grant a patent for one.

Ron Rivest asks about patents on self-revealing invetions such as
pop-top cans. The social good that comes of allowing such patents
is that the inventions will be described, prototyped, and marketed.
Without patent protection, the inventor may spend several days
thinking about whether there's a way to profit from the idea, then
give it up and tell no one -- keeping his concept private on the
chance the he (or she) will find a way to exploit it later.

Along this line, there's currently a debate in Congress about
whether to extend design patents. I read about the inventor
and manufacturer of a clip-on night light for reading in bed.
(Not earth-shattering, I grant, but a lot of people wanted it
badly enough to pay about $30.) He decided to make the product
even though no patent protection was possible. Competitors
copied the idea and even the design details within the first
year. I think the article said that there are now 72 companies
making essentially the same product. Fortunately, his marketing
momentum brought him enough cash -- and he had enough other good
ideas -- that he was able to shift into producing other items.
But is this how we want to encourage the introduction of
technology? Consumer groups say Yes -- it results in cheap
products. I say No -- it results in few products.

Ian Kemmish

unread,
Feb 24, 1992, 2:22:27 PM2/24/92
to

One of the most rational discussions of patents on the net I've
seen in a long time. Thanks for posting it.

IN general, I like the sound of this notion of `self-revealing'.

However, once again my prototypical counterexample from the last
but one industrial revolution, the centrifugal governor, still stands.
Anyone who can see one of those in operation and not know how it
works isn't going to understand the desciption in the patent either:-)

Most patents in `traditional' areas, i.e. those that are still filed
by lone inventors working in the garden shed, are filed precisely
*because* they are self-revealing. The thing that most nags me
about any arguments to do with patents is this: even when the little
guys have legal protection in the form of patents, the big guys still
do a remarkably good job of ripping them off ... here we are, though,
not discussing how to improve the protection, but whether to remove
it all together, and tilt the playing field even further out of
horizontal.

One idea that came up over lunch in the pub the other day: When you file
a patent, you don't get to ``own'' anything. You just rent the right
to exploit it, thus paying a `patent tax' YOu can perhaps write off
your R&D costs against this tax, and private inventors could then
get loads of patent tax breaks that big coporations didn't. Patent
infringement becomes a matter for criminal rather than civil law.
OK, so it needs the politicians to do an unprecedented amount of
work for their consituents....:-(

--
Ian D. Kemmish Tel. +44 767 601 361
18 Durham Close uad...@dircon.co.uk
Biggleswade uknet!dircon!uad1077
Beds SG18 8HZ United Kingdom

[mod- I find the best way to think of Patent Rights are that the only
thing a patent can really do is to stop other people from doing
something. All other effects of patents are, IMHO, second order
effects of this right.]

Kim Letkeman

unread,
Feb 26, 1992, 3:28:59 PM2/26/92
to

In article <42...@cluster.cs.su.oz.au> brn...@KRAMDEN.ACF.NYU.EDU (Dan Bernstein) writes:

| > Again, the rule would undermine all processes patent,
|
| No, it wouldn't. I am rapidly tiring of this argument. You cannot, no
| matter how hard you try, cure real rubber in your head. (If you can I'm
| sure the National Enquirer will run an article on it.) Curing rubber is
| therefore not a mental process. Why do you persist in saying that it is?
|
| My proposal only has to do with mental processes. If it's essential for
| the completion of a process that it be applied to physical elements,
| then my proposal doesn't say anything about the process. I mentioned in
| a previous article a patent on converting yeast into glue. To carry out
| this process it is essential that you begin by heating the yeast. That's
| an essential physical application. The process would thus remain
| patentable with or without my rules. Your claim is thus false.

Ok Dan, something's wrong here. The people arguing against your
position have essentially equated algorithm and/or process with mental
process, hence the slew of examples that are bugging you. Could you
please issue a nice precise definition of "mental process"?

Perhaps include a discussion of why the public key or lempel-ziv
patents are bad (I believe these are some of the mental processes
you've alluded to in the past) and what makes them different from the
process patents that are good.

Essentially, both of these mental processes are only useful when moved
to the physical domain (i.e. actually encrypting or compressing real
data) so I can't see a difference. Honest. I'm not trying to be a jerk
(no matter what my previous post looked like :)
--
Kim Letkeman k...@Software.Mitel.COM

Ron Rivest

unread,
Feb 26, 1992, 9:25:23 PM2/26/92
to

Dan Berstein says that ``no-one in his right mind would use this service''
(a service that solved instances of NP-complete problems). He argues that
there are good algorithms for many problems of interest (linear programming,
for example).

Dan's argument is a non-sequiter, and the conclusion is false. An algorithm
for solving NP-complete problems would also enable one to solve many problems
for which we do not have good algorithms now. Breaking cryptosystems,
optimizing circuit layouts, or proving mathematical theorems (at least ones
with short enough proofs) are all things some would pay good money for.

Dan also misunderstood the assumption implicit in the example: that
the inventor would make the most money from licensing his patent, and
the second-most amount of money by keeping it a trade secret and
selling his services. Thus, the patent system would motivate the inventor
to disclose (and patent) his invention. If you disagree with the assumption
in this example, then that merely means the example may not be the best one.
I'm sure it's easy to find other examples---ones that even Dan would agree
to---where licensing is obviously more profitable than selling the sevice.

The other assumption that some have responded with--that the patent shouldn't
have been granted because others would invent it anyway---is merely an
argument against patents in general...

Ron Rivest
MIT Lab for Computer Science


Carl Oppedahl

unread,
Feb 26, 1992, 10:05:00 PM2/26/92
to
Dan Bernstein (brn...@kramden.acf.nyu.edu) writes:

>Ron Rivest writes:
>> (A) if his algorithm was not patentable, he would set up shop solving
>> other people's problems, keeping his algorithm a trade secret.
>> In other words, you bring your traveling salesman, knapsack
>> or integer programming problem to him, and he solves it for
>> $5,000 a problem.
>
>Nobody in his right mind would use this service. Simulated annealing
>works wonders for the NP-complete problems people care about. The
>simplex method is adequate even for very large instances of linear
>programming problems; Khachian's method and its subsequent improvements
>provide guaranteed bounds if you need solutions in real time. These
>advances have all come out of universities or very large companies,
>which have always published their results as a matter of course. Your
>hypothetical inventor wouldn't earn a penny --- unless you give him a

>patent, which lets him extort fees for 17 years.

I don't think Mr. Bernstein is being fair to Mr. Rivest. Is Mr. Bernstein
saying Mr. Rivest chose an unfortunate hypothetical -- that as a factual
matter no one who has found a way to solve NP problems fast will be able to
make money renting out the engine that does it? If so, he is wasting
everyone's time. Mr. Rivest was giving an example to illustrate his basic
point -- that in the absence or unavailability of patent protection, many
people will choose trade secret protection instead. And Mr. Rivest is right
when he says this. Let me offer other examples:

1. Michelin making better radial tires. Nowadays, it is impossible to buy
a non-radial tire. But as recently as the 1970's, most tires were "bias-ply"
tires, and radials were rare and expensive. Only one company, Michelin, was
able consistently to make good radial-ply tires. They could have patented
all their manufacturing methods, but instead chose to keep them secret. The
resulting tires were not "self-revealing" -- looking at the tire did not
reveal how Michelin made them. I believe Michelin chose the trade-secret
route at least in part because they figured they'd make more money that way
(boy, did I go out on a limb in saying that!). Instead of selling tire-
making machines (read: selling linear programming software) they chose to
keep the machine secret and sell its output (read: sell solutions to linear
programming problems).

2. Formula for Coca-cola. The Coca-cola company, had it patented its
formula, would have had an "exclusive" on Coke for 17 years. Instead, it has
kept its exclusive for much, much longer.

3. Some clients of mine, whom I can't name, do the very sort of thing Mr.
Bernstein says no one in their right mind would pay for. For one reason or
another (e.g. concern that they might try to get a patent and then fail)
they have chosen to keep their methodology, which is part software, secret
and sell the only computational results.


>Another argument: If your inventor (think of Karmarkar if you want)
>really thought he could make money selling his invention, WHY WOULD HE
>USE THE PATENT SYSTEM ANYWAY? Sorry for shouting, but your argument
>seems to be "If we give people algorithm patents, they'll make less
>money than they would with trade secrets, so that's good for everyone."
>If this is true, why wouldn't your inventor keep his algorithm secret?
>Do you think he's stupid?

Mr. Bernstein misunderstands the argument. The argument is that in a world
where systems containing software cannot be patented, some inventors will
choose to keep the system a trade secret and sell its output, rather than
try to make money selling the systems. The reason some inventors will do this
is that selling the systems (which are self-revealing, given the availability
of reverse compilers and such) essentially begs others to rip off the idea
and sell derivative systems that do the same thing, all at a lower price, or
for free. Depending on the facts of a particular software system, the
inventor may realistically have no choice but the trade-secret route. And
depending on the facts of a particular software system, both the inventor
and the public may be worse off than if system sales had been possible at
a reasonable price.

The argument is that in a world where systems containing software can be
patented, some inventors will go the patent route. In many cases this is
a route that leaves both the inventors and the public better off. The public
is better off because the patent document spills all the beans -- scholars
and programmers alike enjoy the benefit of being able to read what is
analogous to "commented code" - a detailed description of the preferred
embodiment. The public is better off because they can have the engine itself,
and use it whenever they wish from then on, rather than waiting for free
moments in a trade-secreted machine that is only rented out. The public is
better off because the patent will expire and then everybody gets to use the
invention free of charge. The inventor must, by definition, be better off
because the inventor's conduct (which is assumed to be rational) was to select
the sales route rather than the (still available but forgone) trade-secret
route. No one (except, apparently, Mr. Bernstein) is assuming the inventor
is stupid.

Carl Oppedahl
30 Rockefeller Plaza
New York, NY 10112-0228

Jim ADCOCK

unread,
Feb 27, 1992, 2:01:51 PM2/27/92
to
In article <1992Feb17.1...@vicom.com> egg...@twinsun.com (Paul Eggert) writes:
|Yes. There are several reasonable ways to make a consistent distinction
|between software patents and other patents. Perhaps the best known is the
|position taken by the League for Programming Freedom: (1) The development,
|distribution and/or use of a computer program should never be held to infringe
|any patent. (2) A combined hardware/software system should infringe a patent
|only if the hardware alone does so, or nearly. (3) If the hardware is a
|general-purpose computer, then the combination should infringe only patents
|covering the construction of such computers--no matter what the software does.

This all comes down to word games again -- what does one mean by "software" ?
All you have done above is substitute one ill-defined word "software" for
another ill-defined word "algorithm." By naming-convention this does nothing
to change the problem.

|Another consistent way to distinguish software patents is the position taken by
|Dan Bernstein: that you shouldn't be able to patent mental processes, i.e.
|processes that in principle you can do in your head.

But who is arguing that the courts should police the contents of anyone's
mind? The problem is that when Bernstein stops thinking -- and starts
doing -- then he may be engaging in a process that is covered by patent.
The mere fact that he is smart enough and fast enough to replace the
computer in the infamous "rubber curing process" does not change the
process. The exact equipment used -- or not used -- in a process
does not change the patentability -- or the infringment thereof -- of
a process. Therefor the presence of lack of a computer or software
does change the infringment or lack thereof in a process.

Seems to me the only reasonable way you can make special rules exempting
software is to kill process patents completely. But then, people can
"design around" machine patents by breaking up the machine into its
component actions -- breaking it up into a process. So, this all
seems absurd to me. You can't single out one technology for special
consideration, or the patent system for the most part breaks down.
On the contrary, what you need to do is allow inventors to use their choice
of best modality in persuing new technology -- and give them a reasonable
period in which to recoup the costs of their invention investments --
during which time their work won't be stolen by mere cloners.

|The same can be said for software patent proponents. Another problem is that
|software patent proponents often seem to ignore earlier postings in this
|newsgroup (:-).

The same complaint can be said of you. So we continue on in a circle
ad nauseum repeating over and over again the same arguments.....


Raul Deluth Miller-Rockwell

unread,
Feb 28, 1992, 12:29:53 AM2/28/92
to
Let's see if I can do an unmangled article. I just got done reading
something I wrote that didn't come out at all the way I wanted. (My
fault for not proofing that article before posting.)

Kenneth I. Laws:


> In this example, the software does not infringe the patent.
> Using the software TO CURE RUBBER, does. Using the software to
> make ice cream, does NOT.

I'll buy that. Software does not infringe patents. If there is
any infringement, it comes from use of the software. (This is one
way that patents differ from copyright.)

I disagree. The infringement would come from violating the rubber
process patent.

To clarify, consider the question "what is software"? In particular,
consider software in light of the following concepts: silicon
compilers, pneumatic logic, relay logic, analog circuitry, cams,
gears, trained monkeys, and lookup tables. Please note that given a
sufficiently wide range of platforms, "software equivalence" exists
only in the mind of the beholder.

On the other hand, a process patent on the curing of rubber is
intended to cover only a _specific_process_involving_rubber_. If the
patent is valid, it shouldn't matter if you're using a NeXT [possibly
programmed in objective C] or someone's grandma [possibly with a
little chart pasted by a fancy control panel] to determine when and
how to turn off the oven.

Note that if grandma is a good cook she might not need to refer to any
charts...

Paul Eggert

unread,
Mar 1, 1992, 3:16:02 PM3/1/92
to comp-p...@uunet.uu.net
Ron Rivest asks us to conduct a gedanken experiment, and suggests that
in a world without software patents, people would keep their software
inventions a secret, and would instead sell services that solve
instances of problems. But we don't have to conduct a gedanken
experiment, because we already conducted a real experiment. Until the
mid-1980s software was generally exempt from the scope of patent laws.
If Rivest is right, then allowing software patents should have caused a
flood of patent applications for software methods that had previously
been kept secret for the reasons he described. But we observe no such
patent applications -- on the contrary, most software patents are for
techniques that are obvious to anyone versed in the field. So Rivest's
conclusion is contradicted by the facts.

Charles Geyer

unread,
Mar 3, 1992, 4:12:46 AM3/3/92
to
In article <42...@cluster.cs.su.oz.au> riv...@theory.lcs.mit.edu (Ron Rivest)
writes:

> The other assumption that some have responded with--that the patent shouldn't
> have been granted because others would invent it anyway---is merely an
> argument against patents in general...

That's right. Patents should not be granted on things that are easy to invent
-- that will in the normal course of science be rapidly reinvented.

Computer Science will be a lot more like a real science if algorithm patents
are abolished.

Where would mathematics be if theorems were patentable?

Charles Geyer
School of Statistics
University of Minnesota
cha...@umnstat.stat.umn.edu

[mod- Surely Rivest et al. patent on public key cryptography or the
Karmarkar patent are essentially mathematics? ]

Russ Nelson

unread,
Mar 3, 1992, 9:28:17 AM3/3/92
to
In article <1992Feb27.1...@microsoft.com> ji...@microsoft.com (Jim ADCOCK) writes:

This all comes down to word games again -- what does one mean by
"software" ? All you have done above is substitute one ill-defined
word "software" for another ill-defined word "algorithm." By
naming-convention this does nothing to change the problem.

A reasonable definition of software is a collection of bits that is interpreted
sequentially. That leaves out PALs, and gate arrays. It also leaves
out dataflow machines, but there's such a small minority of computers that
we don't have to worry about that (now).

--
--russ <nel...@sun.soe.clarkson.edu> I'm proud to be a humble Quaker.
Peace is not the absence of war. Peace is the presence of a system for
resolving conflicts before war becomes necessary. War never creates peace.

Scott L. McGregor

unread,
Mar 3, 1992, 2:10:05 PM3/3/92
to

In article <42...@cluster.cs.su.oz.au> rock...@socrates.umd.edu (Raul Deluth
Miller-Rockwell) writes:
> No -- the patent is about the fabrication of rubber. General purpose
> computers do not fabricate rubber. This is no different than
> non-automatic fabrication (where a human being is operating some of
> the equipment).

Truely, this patent is about a real world change. However, a patent covers the
TOTALITY of the elements and steps in its claims. Process patents DO cover the
activities of humans. If they were not allowed to cover the activities of
general purpose computers (when used as part of the physical process) which
replace a human operator, then effectively they would undermine the overall
process patent, since you could escape prosecution by substituting human
operators with computers.

For some, it would be okay to have the process patent cover both the human
operated process and computer operated process. (In fact, this is the general
view of the courts post D vs. D). However, one must realize that if you adopt
this position there is no risk reduction possible from software only patent
protection--if you use the software to accomplish any kind of physical result.
That physical result could be rubber-curing, but it could also be reducing
transmission time on a modem, increasing the effective storage on a disk, or
manipulating displays on a video terminal. All these too are physical
processes, which may, or may not use general purpose computers.

> Paul Eggert:
> >Perhaps the best known is the position taken by the League for

> >Programming Freedom: (1) The development, distribution and/or *USE*


> >of a computer program should never be held to infringe any patent.
> >(2) A combined hardware/software system should infringe a patent
> >only if the hardware alone does so, or nearly. (3) If the

> >hardware *IS* a general-purpose computer, then the combination


> >should infringe only patents covering the construction of such
> >computers--no matter what the software does.

[emphasis on USE, IS, mine]

The LPF viewpoint makes clear that they not only want to protect from patenting
the MANUFACTURING of software devices, but also their USE. Note that the
software and general purpose hardware in the rubber curing process is being
USED. Should an infringer of the rubber process using a computer be exempt
>from the process or not, simply because they use a computer. If yes, the
process patent in general is undermined. If not, the user of the software is
still at risk (counter to the LPF viewpoint goal), and the assemblers of the
conflicting system that effects the process (i.e. including the software
writers) are still likely to be at risk for patent infringement.

Note also in section (3) this question of if the hardware IS a general purpose
computer. What about a general purpose computer in an embedded system? Clearly
the computer is but a subset of the larger embedded (physically affecting)
system. Does the LPF mean where the computer is PART of system effecting the
patented process, or the WHOLE of the system? If they only cover systems where
it is the computer is the whole system, then very few writers of software would
be protected by their efforts. But if it can be only a part, then the rubber
curing example creeps back in. Moreover, the computer (i.e. the CPU that runs
the software) will need to be distinguished from the peripherals. A robot
actuator connected to a computer data port and a display or printer play the
same sort of non-computational role of affecting the physical environment,
similarly for keyboards and sensors, or modem cards, and special purpose
signalling boards.

YES, it is the WHOLE process that infringes, not just the software. But, I
can't see how this will be of any interest to the software writer sued for
contributory infringement.

> And the only difference with a human is what goes on inside the
> mind... In any event, the rubber factory example is not within the
> realm of a general purpose computer that doesn't have a rubber factory
> hooked up to it.

I suspect that if someone proposed a rule that applied only to general purpose
computer operations with no peripherals connected to them, that probably no
patent advocates would care, nor be affected--since patent advocates are almost
exclusively interested in the changes their devices or processes have on the
real physical world--because there is no tangible value to a process until it
affects the real world. But the minute you connect a peripheral, be it a
numerically controlled robot arm, or video display terminal you are now part of
larger physical process. XOR in a computer with no inputs and no outputs is not
very interesting--on a video screen it is quite valuable. If process patents
need to be written in terms of these real world state effects, it is unlikely
that any software writers would be any less affected than they are today--and
more likely that they would be confused by the descriptions.


> My opinion is that while the
> development of the software involved wouldn't be considered a patent
> violation, the manufacture of rubber by that process would. The
> software involved in manufacturing that rubber is a trivial part of
> the patent. The claim that since the software is unpatentable
> the whole patent is invalid makes about as much sense as saying that
> since a generic 3/8" bolt is unpatentable, you can't patent something
> which uses these bolts in its construction.

There are no "trivial parts" to a patent claim, since you are in violation only
if you violate ALL of the elements and steps in a claim. And a patent may not
be granted unless all the elements and steps are specified, because it may only
be in their combination that they are novel and unobvious.

If we follow Eggert's suggestions that the process is patentable even if it
contains software which itself is not patentable (similar to a 3/8" bolt), then
I cannot see how this achieves the LPF goal of protecting the USERS of software
>from law suits, since the users of this process are users of software and still
subject to prosecution for infringing a patent. So they didn't really get any
legal benefit from such an interpretation of the LPF view as Eggert explains
it. Moreover, while the 3/8" bolt may not itself be patentable (not novel),
the combination of the 3/8" bolts and other unpatentable components in a
device may be crucial to that device's patentability--if so, they must be
specified in patent claim, and users of 3/8" bolts could theoreticly find
themselves in a patent suit for re-inventing a patented device that included
them.


> The difference is that computer results are symbolic in nature and
> thus, at least in the US, outside the scope of patents. It does not
> matter significantly whether a computer displays the results in terms
> of high energy phosphor emissions, or in terms distortions in
> long-chain polymers, or (for the case of many software patents) as ink
> or other substances on paper. Likewise the internal representation of
> the information is not significant (for example, conceptually, a
> software patent would apply even to computers using mercury delay
> lines) -- what matters is what information is being represented.

If Eggert allows process patents based in terms of effects on computer displays
or printouts, in which the computer is merely embedded in the system, then I
suspect that all "software processes" could be redescribed in terms of their
physical world affects (indeed, many of the ones posted here do make mention of
displays, line signalling, or magnetic or electronic storage media). But
again, I cannot see that this reduces software user's liabilities unless
embedded systems are unpatentable precisely because the contain a computer.

Lest we worry too much about software user liability here, let me point out
that whenever you use a product, even a purchased one, you run the risk of
infinging a patent. Historical cases show that in both hardware and software
cases you are unlikely to be sued--but it is possible. If you purchased the
product, and didn't know that use of it infringed a patent, and you get sued,
you are likely to sue the seller or manufacturer. In fact, if the device
itself is not covered by a patent, but the process it affects (e.g. a novel air
filtering process) is, then the manufacturer may not be liable for infringement
per se, but you may sue them for contributory infringement or inducement to
infringe. This applies equally to software and non-software product
consumers, and most of the readers here have considerable experience of buying
many products whose patent status they do not know, and probably never getting
sued. So the risks the LPF viewpoint paper raises for software users may be
overstated somewhat. But, unless whole embedded systems are patentable too,
then the benefits to software users of a possible LPF style ban against
software only patents is also overstated.

Scott L. McGregor

unread,
Mar 3, 1992, 2:38:08 PM3/3/92
to

In article <42...@cluster.cs.su.oz.au> brn...@KRAMDEN.ACF.NYU.EDU (Dan
Bernstein) writes:
> > Or you could
> > simulate the process on a computer.

>
> Good point. My position also implies that the process of simulating
> rubber curing on a computer is not patentable.

> Curing rubber is
> therefore not a mental process. Why do you persist in saying that it is?

I do not persist is saying that it is. What I am claiming is that in
performing the process of curing rubber, you may perform a number of steps that
can be done mentally, or by computer. These are then translated through
various actuators (arms, or valves) into physical state changes which effect
the process in the real world. I do not believe that anyone is likely to sue
for patent infringement over any activity that is undetectable in the physical
world, whether it takes place in someone's mind, or in the heart of a general
purpose computer. Even if someone were sued proof of infringement given
undetectability in the real world would be difficult, and damages problematic.

However once you embed that mental or computer in a physical process, you must
choose two policies: Either disallow a patent on the entire physical process
because part of it involves theoretically mental processes, or allow the
process patent, and understand that the users of the process may be sued even
though the only thing they did was USE a particular mental or software process
in conjunction with a certain set of non-patentable generic devices.

Note that if you disallow processes with embedded computers you disallow the
XOR video cursor patent, modem compression patents, but also the rubber curing
patent. If you take the opposite choice, you allow computer supported rubber
curing, but also processes involving XORs on video displays, and compression on
modem signals.

> My proposal only has to do with mental processes. If it's essential for
> the completion of a process that it be applied to physical elements,
> then my proposal doesn't say anything about the process. I mentioned in
> a previous article a patent on converting yeast into glue. To carry out
> this process it is essential that you begin by heating the yeast. That's
> an essential physical application. The process would thus remain
> patentable with or without my rules. Your claim is thus false.

With this clarification, I would now interpret Bernstein's rule to be
acceptable to patent advocates, because they would only care about patenting
things that were applied to physical elements (say modems, video displays,
printers, and storage media) and Bernstein says he doesn't address them.
On the other hand, as long as Bernstein's model only applies to the
non-physical world, it is not likely to offer any protection to software users
who try to accomplish real world results, or the software developers who build
software in support of computer controlled processes that accomplish them,
whether in rubber curing, video displays, modem signalling, or storage
management.

Carl Oppedahl

unread,
Mar 3, 1992, 9:37:00 PM3/3/92
to
Paul Eggert (egg...@twinsun.com) says:

If Rivest is right, then allowing software patents should have
caused a flood of patent applications for software methods that

had previously been kept secret ...

But we observe no such patent applications ... so Rivest's


conclusion is contradicted by the facts.

It happens patent applications are kept secret by the Patent Office.
So no one (except those who work in the Patent Office) has observed such
patent applications, or any other patent applications.

What Mr. Eggert has not seen in the area of patent applications is thus not
support for the claim that Mr. Rivest is contradicted.

Dan Bernstein

unread,
Mar 4, 1992, 8:53:59 AM3/4/92
to
Jim Adcock writes:
> This all comes down to word games again -- what does one mean by "software" ?

I propose giving the above argument a name: the ``you can't define
software'' argument. It's quite a silly argument, because the LPF's
position paper _gives_ a definition of software. (A different definition
is ``mental process'' as laid out in my proposed regulations.)

Jim and Kim and others keep making the same argument, and the rest of us
keep pointing out that it's silly. Could the pro-patent people here
_please_ accept the fact that this argument is _dead_?

> Seems to me the only reasonable way you can make special rules exempting
> software is to kill process patents completely.

I'd like to give this one a name too: the ``if you kill software then
you kill all processes'' argument. This is also quite a silly argument,
because I have proposed ``special rules exempting software'' which do
_not_ kill the making-glue-from-yeast patent. So has the LPF.

> |The same can be said for software patent proponents. Another problem is that
> |software patent proponents often seem to ignore earlier postings in this
> |newsgroup (:-).
> The same complaint can be said of you.

No, it cannot. Paul has not been ignoring anything.
Postings here have given perfectly adequate definitions of ``software,''
but you keep giving the ``you can't define software'' argument. Postings
here have drawn quite solid lines between mental processes and physical
processes, but you keep giving the ``if you kill software then you kill
all processes'' argument. Why do you persist in ignoring the evidence to
the contrary?

I'm reminded of the security ``experts'' Cliff Stoll had to deal with.
``There's no way hackers can invade our system.'' Yet crackers _did_
invade those systems. At least once the experts were shown examples to
the contrary, they admitted that their general statements were wrong.

---Dan

Dan Bernstein

unread,
Mar 4, 1992, 9:27:42 AM3/4/92
to
Ron Rivest writes:
> Dan Berstein says that ``no-one in his right mind would use this service''
> (a service that solved instances of NP-complete problems).
[ ... ]

> An algorithm
> for solving NP-complete problems would also enable one to solve many problems
> for which we do not have good algorithms now.

That conclusion is completely illogical. There is no reason to believe
that a polynomial-time algorithm for NP-complete problems will ever be
useful in practice. (And the premise is poorly stated: we _do_ have an
algorithm for solving any bounded problem, even NP-complete problems.)

I strongly suggest that you avoid imaginary examples in illustrating
your point. Otherwise you're arguing about some la-la land which has
little relevance to the real world.

---Dan

Jim ADCOCK

unread,
Mar 4, 1992, 6:16:34 PM3/4/92
to
In article <41...@cluster.cs.su.oz.au> hef...@falstaff.css.beckman.com (Matt Heffron) writes:
|The difficulty comes in with process patents which do not affect a material
|change of matter. E.g., a process which exists entirely in a mathematical
|domain. It is my OPINION that patents should not be granted on such processes.

Process patents require a change of state or matter. Something that exists
entirely in the mathematical domain does not change state or matter.
Running a computer program on a general purpose computer does cause
a change in state, as anyone who has studied computer fundamentals well
knows. Thus computer processes are processes for the purpose of patenting.
These mundane details are not typically covered in software patents
nowadays because someone at all skilled in the art knows about computers
and how they work. Thus the machinary used to run the software need
not be discussed -- its obvious and can be left out of the disclosure.


Dan Bernstein

unread,
Mar 5, 1992, 10:51:45 AM3/5/92