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Complaints prompt Patent Office hearings on SOFTWARE PATENTS -- what ever your views let them be kno
From: David Farber <>
Date: Thu, 16 Dec 1993 04:31:59 -0500
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.
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- Complaints prompt Patent Office hearings on SOFTWARE PATENTS -- what ever your views let them be kno David Farber (Dec 16)