Complaints prompt Patent Office hearings on SOFTWARE PATENTS -- what ever your views let them be kno

[David Farber <>]

Date: Wed, 15 Dec 1993 19:04:44 -0800
From: Jim Warren <jwarren () well sf ca us>


Complaints prompt Patent Office hearings on SOFTWARE PATENTS
Just got these [incomplete] details from Jon Erickson, Editor-in-Chief of
my old "home," Dr. Dobb's Journal  [please repost freely]:


The Patent and Trademark Office will be issuing (or, perhaps, has just
issued) a, "Request for Comments on Intellectual Property Protection for
Software-Related Inventions," with at least some of the comments apparently
to be presented at two 2-day public hearings:
  Jan 26-27, San Jose Convention Center, San Jose CA
  Feb 11-12, Crystal Forum, Crystal City Convention Center, Arlington VA


Jon first heard of this as an incidental comment by Patent Commissioner Bruce
Lehman (an ex-D.C. patent attorney) at the joint BRIE-DoC conference held in
the San Francisco Bay Area in October.  BRIE is the Berkeley Roundtable on
the International Economy, in which Clinton Economist Laura Tyson was active.
Reportedly, all sorts of DoC undersecretaries were in attendance, as was DoC
Ron Brown.  And, reportedly, they and Undersecretary Lehman received a heated
earfull of vehement complaints about the software-patent mess.  It was at
that time that Lehman made an incidental comment that they were planning
hearings on this, early in '94.  As of three weeks ago, they still hadn't
firmed up dates - so this is apparently "hot off the wire."  (Jon will be
addressing it in the Feb'94 DDJ, the earliest issue in which he could insert
details, once he got 'em.)


Seems to me that of us who prefer freedom of logic, rather than corporate
monopoly of rationality (sez I, provocatively :-) should get geared up to
saturate that RFC and those hearings with pro-freedom testimony and specific
proposals. I got these details after business hours in D.C., so don't yet
know how to file a comment or request to be heard.  When I know more, you'll
know more.
[I'm *wildly* backlogged on my email - perhaps 2,000 messages behind. So, if
you need to communicate with me about this, better call (415-851-7075). But,
I *will* send new details as I get 'em.]


Totally off the top of my head, I suspect testimony and comments should
- in total - cover the following, as possible:
*  Clearly support software copyright protections, as separate from opposing
software patents.
*  Detail horror stories of rank stupidity in some current software patents.
*  Detail the financial waste, staff waste, product delays, innovation
deterance, etc.
*  Detail the *harm* to U.S. business and commerce of permitting the
patenting of logical instruction-sequences - giving specific costs where
possible.
*  Detail the historical harm, abuse and disregard accorded ill-funded
individuals and small companies when they patented technology desired by
dorporate giants (e.g., TV inventor Filo Farnsworth, who never got a penny;
xerography inventor Carlson who was old and gray before he finally won
compensation from the corporate monoliths, etc.).  We need to address and
dispell the delusion that patents protect the small inventor.
*  Illustrate the chilling effect on technologists' creativity and
innovation if/when they must check each line of code the create against
all possible software patents - once they are public.
*  Address the difficulty -verging on impossibility -of separating
"properly-protectable," "significant" software "invention" from
improperly-protected incremental software innovation.
*  Outline the dangers to U.S. competitiveness as foreign corporations - less
preoccupied with the near-term quarterly bottom-line - rigorously research
software-applications areas (e.g., fuzzy logic), and patent every comma
and semicolon of trivia.
*  Outline dangers to national security and proper governmental processes
from some software patents (e.g., tax-funded creation of public-key crypto,
West Publishing's copyright of federal case-law citation numbers, etc.).
*  Someone(s) better research the NAFTA and GATT agreements and see what
hidden gotchas we have - or are about to - lock ourselves into re software
processes.  E.g., there has been mention that both the GATT and NAFTA
functionally mandate software patents; also, there are rumors that the GATT
(at least at one time) prohibited reverse engineering!  I.e., is this RFC
too late?
*  Assuming that we will continue to be screwed by software patents in some
form, propose concrete limitations on what can be patented.
*  Assuming ditto, propose a concrete structure for the software-patent
process - one that will at least deter or catch some of the more idiotic
patents that have been granted.
*  Assuming ditto, urge normalising U.S. patents - software and otherware -
with those of the rest of the world, expecially regarding issues of
first-to-use versus first-to-file and disclosure-upon-filing versus
disclosure-upon-patent.  (How the hell can programmers determine whether
they're violating an already-used potentially-patentable procedure, when
it's often not disclosed until several years after its holy first use?!!)
*  Assuming ditto, propose a *very* short protection period for software
patents - given the very short development period, speed to market and brief
useful life of a given software product.
*  Asumming ditto, propose a comprehensive public PTO library of prior art,
with penalties against the PTO and PTO staff for issuing software patents
when there is prior art in that library. (The Draconian approach. :-)
*  And then there are the trivial matters of Constitutional Principles and
software-industry history:
The Constitution authorizes patents, "To promote the progress of science and
useful arts."  Software patents do the opposite.
Computing and software innovation has grown vigorously and generated unending
millionaires and corporate successes *without* the protection of software
patents.  There are endless examples of developments that would not have
happened at all, or would have occured decades later, if earlier software
developments had been patented - b-trees, shell-sort, relational DBMS,
GUIs, object-oriented programming, n-way tape merges, packet nets, etc.


More flames later.  THIS IS THE TIME TO SPEAK UP!  NOW!
--jim


Comments worth making are worth making to the PTO in response to their RFC;
*not* just nonproductive flaming, online.