NEIL BROWN INDEPENDENT SOFTWARE ENGINEER MR. BROWN: Well, I have a lot to say. First of all, I'd like to thank you all for being here. I have a lot to say and I appreci- ate the opportunity to say it to you directly. It's been a long time since I've been on stL sorry. My name is Neil Brown. I'm an independent software engineer. I work as a contractor for software development companies and I do development of my own. I did programming for fifteen years and I've been getting paid for it only in the last six. Although I can't speak for all of us, I can speak for some of us, and I can certainly speak for all the friends I've talked to who feel very similar to the way I do. I represent the ultimate source of all revenue for every person who profits from the software industry, however indirectly, the developers; if some- body wasn't writing the software, there wouldn't be a single software patent lawyer that could possibly make a penny. This is why I __ what I, what the League for Programming Freedom and what the Free Software Foundation, neither of which I'm a member, have to say is important. We power this industry; we're the dynamo which causes it to exist, and in order to keep our jobs, in order to continue marketing software, we must make clear what we needPore its too late. I'd like to address the questions that you've asked, as I indi- cated from not listing affiliations, I'm not speaking on behalf of anyone other than myself and those in the software industry whom I have found to agree with me. On the question, Topic A, Question 1, Example A, "What part of mathematical algorithm implemented on a general purpose computer can be patented?" My response: None whatsoever. The technique of long division where one writes the number to be divided down, puts a little bar under it, and writes the number to divide into it, next to it, writes notations and partial answers, gradually arriving at a more complete answer, can clear- ly be described in a fashion executable by a computer. It's not at all hard for most developers to write a graphical front end for long division, so this is a useful, I mean the question of whether or not division is useful is, is not worth debating. It's a useful tool to accomplish a useful goal, and real money is made from using it, but wTwould happen to your education? How would you have learned division if the school that was trying to teach you that suddenly found itself being attacked by another school who claimed to own that very method? A mathematical algorithm performed on a special_purpose computer; can you patent a calculator? I do seem to remember that the be- ginning of the digital revolution was really noticed when pocket calculators starting causing slide rules to disappear. If only one company had been able to produce calculators, would the price have dropped from four hundred dollars to fifteen in only a cou- ple of years? If only one company could own the legal right to build a machine to perform mathematical calculations, where would the software industry have gotten its start? Topic A, Question 1, Example B, sorry, Example C and C_2. "Can you patent the disk on which a computer program is stored?" Again, with the calculator, if it were possible to patent the concept of a calculator, if it were possible to patent the cXlator that has the ability to execute more than one program, where would the software industry be today? How do you define what a program is? Do you define it as being able to push the sine key and get the sine of the number? Do you define a separate program as one in which you can press the cosine key and get the cosine of that number? Question 2. "What impact, negative or positive, have you or your organization experienced from patent issues on software_related inventions? On several occasions I have found myself being un- sure of whether or not I was able to use a particular algorithm, specifically the compression algorithm embedded in the program known as Compress, within software. There have been many ques- tions raised and lots of time spent chasing after whether or not the company could somehow use this and escape any royalty obliga- tions. "What implications, positive or negative, can you foresee in maintaining or altering the standards for patent eligibility?" This is Question 3. Well, I seet, because every one of the hun- dreds of ideas that the developer goes through while writing an application, every one of the little techniques that he goes to use or goes to put together with another, he has to go and call up Legal to find out if that's been patented or if it might be covered by a patent. The software industry is not going to pro- gress very rapidly if people like me spend all their time on the phone to Legal asking if we can do this. "Does the framework of patent, copyright or trade secret law," Question 4, "effectively promote innovation in the field of software?" Yes. "Does it provide the appropriate level of pro- tection?" A qualified yes. The qualification is that it pro- vides too much protection, potentially. Question 5. "Do you believe a new form of protection for computer programs is needed?" My answer is no. The water is muddy enough. On Topic B. I agree with all concerns that access to prior a`s difficult, or is outmoded. The difficulty of determining whether or not two programs are equivalent or similar is extremely diffi- cult. I deem it intractable. There are so many languages out there, there are so many sophisticated ways of expressing algo- rithms that it's hard enough just to understand one, but compar- ing two? Doing this for every program out there that seems to possibly be related to an application can take forever. The very concept of, is there anything out there at all that does what this does, is extremely difficult to solve, and I deem it to be intractable for software in general. Topic B, Question 1. No, I don't think that the patents and printed publications provide examiners with sufficient collection of prior art, and as I said before, it can't. The work on software interface patents, if you allow patenting of the idea of having a hammer on a desk and deem it a different invention if the hammer is the drawer of the desk, how is somebody using that desk going to be able to gdheir job done? How is somebody going to be able to design __ How is anyone going to be able to get the job done if their job is to design a new desk and they have to go and find everyone that has similar functionality available at the top of their desk? The patent which has control informa- tion such as page numbering and position on the page and document being edited available on the screen, the very idea of having many pieces of information available for manipulation of the in- formation is the whole idea of an interface. You want to be able to provide as much ability for the user to manipulate the raw ma- terial they're working with as apparently is possible. You want all of these tools to be easy to get to and easy to work with, and if someone comes with a formalism for making all of these things available, then if any means of providing that same func- tionality is deemed equivalent, then how can progress possibly happen? I do have lots more to say, as I said, but __ COMMISSIONER LEHMAN: Well, mayh can help you to wrap up in just asking you, I have a little confusion in your statement to us; in the answer to Question 4 you basically seem to say that the present framework is okay, but I have the impression that you ba- sically don't think that __ that you think there are a lot of problems with the patentability of software just generally. Is it your position that software should not be patentable? MR. BROWN: Software patents are a blight. They're a problem. They get worse. COMMISSIONER LEHMAN: So basically you think that copyright pro- tection is __ MR. BROWN: Copyrights and trade secrets. COMMISSIONER LEHMAN: __ is okay, and trade secrets, but that ba- sically the difficulties from trying to work with the patent sys- tem applied to this industry are so great that it virtually makes it impossible to use it as an effective technique for protection that developers like yourself can really work with. MR. BROWN: Yes. How many houses would you build if every time a carpenter went to build a houselery time a carpenter went to take up a tool he had to pay a point one percent royalty on the gross profit on that house, or the gross revenue on that house? COMMISSIONER LEHMAN: We appreciate your coming and sharing these comments. Thank you. MR. BROWN: Thank you very much. COMMISSIONER LEHMAN: Next I'd like to ask, if he's here, Gordon Irlam, representing the League for Programming Freedom, which our previous witness referred to in his statement.