From: brns...@kramden.acf.nyu.edu (Dan Bernstein)
Subject: Your chance of the year to change software patent law
Date: 8 Jul 91 21:11:40 GMT
This isn't just another run-of-the-mill announcement. It's a call to
action. If you read this posting and agree with it, ten minutes from now
you can have a letter in the mail which will add your voice to that of
hundreds more programmers and other professionals in making the patent
law a little saner. Read on.
56 FR 22702-02, requesting comments on what the public wants to see in
the patent law, has been posted to each of the above groups, as well as
comp.dcom.telecom and several others. Comments must be received in the
United States Patent and Trademark Office by next Monday, July 15.
If you believe that software and algorithm patents have hurt your
profession more than they have helped it, do not wait for the LPF or a
similar organization to respond to the RFC. Write your own response, and
get it into the mail---express mail if you think your freedom is worth
more than $9.95.
The rest of this article is my suggestion for how to respond if you want
to take a positive first step in changing the law but don't have the
time to research patent law. I'm writing to the USPTO to tell them that
it wouldn't be a major change to the law if mental processes were made
unpatentable. I'm trying to get a couple of patent lawyers to do the
same. If enough people say in their own words that patents on mental
processes have retarded the progress of science and technology, the
USPTO will listen.
Yes, this is a mail campaign. A sufficiently powerful mail campaign
*will* work. Keep in mind that most government requests for comments
receive one or two responses, total. If 100 or 1000 people write, each
saying that the law should be changed, the law will change.
Here's what you have to do. Write to E.R. Kazenske, Executive Assistant
to the Commissioner, U.S. Patent and Trademark Office, Box 15,
Washington, DC 20231. Give your name and profession, and say that you're
responding to 56 FR 22702-02, issue I(b). State that you believe patents
on mental processes have hurt your profession more than they have helped
it; feel free to give any number of arguments, examples, or LPF
references to support your position, or just say it and be done with it.
Say that patents on mental processes should be outlawed, and that any
such existing patents should be invalidated.
Here's a complete statement of the changes I'm arguing for. If you agree
with this statement you may want to quote it in full in your letter.
Statement of Proposed Mental-Process Patent Regulations
Daniel J. Bernstein
July 5, 1991
I support the adoption of the following definitions and resolutions
into statute or regulation.
A mental process per se is not statutory subject matter for a
patent. The term ``mental process'' includes, but is not limited
to, any process which may be carried out within a person's mind.
The term ``mental process'' includes, but is not limited to, any
method by which a set of numbers or symbols is computed from a
different set of numbers or symbols. The term ``mental process''
includes, but is not limited to, a mathematical algorithm. The
term ``mental process'' includes, but is not limited to, a
mental process performed with the aid of a computer. The term
``mental process'' includes, but is not limited to, any
combination of mental processes.
A mental process applied in a non-essential manner to physical
elements is not statutory subject matter for a patent. A mental
process limited to a particular technological environment is not
statutory subject matter for a patent. A mental process combined
with data-gathering steps which merely determine values for
variables used in the process is not statutory subject matter
for a patent. The combination of a mental process with a process
or product which is not statutory subject matter for a patent
is not statutory subject matter for a patent. A product defined
by its result or function, when that result or function is also
the result or function of a mental process, is not statutory
subject matter for a patent.
Use of a mental process per se cannot infringe upon a patent.
Use of a mental process with the aid of a computer or partially
or entirely carried out upon a computer cannot infringe upon a
Below is a sample response, written by a fictional Joe Shmoe of Margorp
Corporation. The most important part is the response to I(b), where the
USPTO asks how the law should be changed. If you base your response on
this, all you need to use are the first and last paragraphs, but please
do try to write or rewrite something in your own words if you have the
This article is copyrighted, but you may distribute exact, complete
copies without charge. Feel free to repost it to other newsgroups.
1 Margorp Drive
Emeryville, CA 94608
July 8, 1991
Executive Assistant to the Commissioner
U.S. Patent and Trademark Office
Box 15, Washington, DC 20231
Dear Mr. Kazenske:
My name is Joe Shmoe. I have been a professional programmer for
seven years; I currently work for Margorp Corporation. I write in
response to 56 FR 22702-02, titled ``Request for Comments for the
Advisory Commission on Patent Law Reform,'' dated May 16, 1991.
Question I(a) of 56 FR 22702-02 asks: ``What problems, if any,
exist in the current framework of laws which protect computer-related
inventions?'' As detailed in ``Against Software Patents,'' by the League
for Programming Freedom, many patents have been granted for obvious
techniques and combinations of techniques which any competent computer
programmer could invent in the course of a day's work. Many patents have
also been granted for processes which should be unpatentable but which
are disguised so that patent examiners do not realize what they are
For example, claim 1 of U.S. Patent 4,558,302 describes a method
equivalent to the methods claimed by U.S. Patent 4,814,746. (Any expert
on data compression can verify this equivalence.) Furthermore, 4,814,746
was applied for before 4,558,302. Therefore 4,558,302 claimed prior art
and should not have been approved. But it was approved. Since the patent
examiners were obviously not competent to see the equivalence of these
two computer-related patents, it is reasonable to assume that the patent
examiners also are not competent to detect the fact that a patent covers
a mathematical algorithm, or to understand the obviousness of the
techniques covered by such patents, or to know when a patent is covered
by prior art.
Question I(d) asks: ``What evidence exists, if any, that patents
issued on new and useful computer program-related inventions do or do
not provide an incentive to conduct research and development on new
products, and that such patents do or do not promote the development of
new technology?'' As stated by D. E. Knuth in The Art of Computer
Programming, volume 3, page 318, one of the first algorithms to be
patented as an algorithm was in 1968. There were only a few software
patents granted before 1980. However, the software industry was already
a productive field for research and development by 1968 and an extremely
profitable field by 1980. Software patents did not drive this industry
in any way. Now that there are many software patents, they are hurting
rather than helping the industry. A company named Public Key Partners,
for example, has been sending patent notices to anyone who would like to
publish work in the mathematical field of public-key cryptography.
Recently the company prevented distribution of a program which did
nothing more than gather a set of numbers, compute certain other numbers
by certain mathematical formulas, and display the result.
Question I(b) asks: ``What changes, if any, should be made in the
domestic and international systems for protection of computer-related
inventions?'' I support Daniel J. Bernstein's ``Statement of Proposed
Mental-Process Patent Regulations,'' attached. I believe that removing
all patents upon mental processes, such as 4,558,302, will help restore
the freedom and productivity that my profession once had, without in any
way affecting the traditional benefits of patents upon physical products