Path: sparky!uunet!munnari.oz.au!metro!cluster!...@gnu.ai.mit.edu From: r...@gnu.ai.mit.edu (Richard Stallman) Newsgroups: comp.patents Subject: [ARTICLE] Reply to "Why Patents are Bad for Software" Message-ID: <4949@cluster.cs.su.oz.au> Date: 19 May 92 17:32:43 GMT Sender: n...@cluster.cs.su.oz.au Lines: 137 Approved: pate...@cs.su.oz.au This letter was sent to Issues in Science and Technology opposing the article, "Why Patents are Bad for Software". We disagree with the conclusions expressed by Simson L. Garfinkel, Richard M. Stallman, and Mitchell Kapor in "Why Patents Are Bad for Software" (_Issues,_ Fall 1991), particularly their statement that the patent law should me amended immediately "to disallow software patents." The patent system has served the United States well over the past two hundred years by adapting to new areas of technology as they emerge, and today it provides vital support to U.S. competitiveness around the world. Improvements to the system are certainly possible, but the beneficial effects of any major changes need to be clearly proven before they are made. The authors do not meet this burden of proof. First, they demonstrate that they do not understand the current law. Their analysis of the Supreme Court decisions on this issue is inaccurate and superficial, and tehy omit any mention of the numerous decisions by lower apellate tribunals. They appear to allege that originality is a requirement for patentability and that mathematical laws are patentable subject matter. They are wrong on both counts. Their discussion of the concept of "public domain" is confused at best. In our view, recommendations for amending current law that are based on misconceptions such as these should not be given any credence. Second, the authors tend to make sweeping statements that reflect their point of view. Most of these statements, however, do not appear to be the result of a balanced and reasoned inquiry and do not appear to be supported by facts. For example, the authors allege that granting patents on computer-related inventions will harm small and even mid-sized companies and that these businesses cannot use the patent system. Yet, there is no quantitative evidence to suggest that such companies are not applying for, receiving, or enforcing patents. Indeed, we expect the contrary. Also, the authors forget that the patent system has traditionally been a major factor in the growth of many small companies into large businesses, regardless of the area of technology. Third, the authors make several inconsistent statements. They assert, for instance, that the patent system is "backfiring in the computer industry" because, among other reasons, the search for prior art in the realm of computer software is all but impossible to conduct. Yet they later state that one of the traditional roles of the patent system--encouraging the dissemination of information--is not necessary for computer software because computer scientists routinely publish their discoveries. If such publications are available, they may be evidence of prior art and should be available to patent examiners for consideration. In fact, the authors' concern that the prior art is too enormous for patent examiners to search is groundless, as the modern patent examiner has a plethora of resources to assist such a search, and every patent applicant has a positive duty to disclose any prior art known to be relevant to the claimed invention. Finally, the authors report in detail the views of thsoe who believe they have been economically disadvantaged by the operation of the patent system. On the other hand, they cavalierly dismiss the views of those who appear to have used the patent system successfully and impugn their motives for acquiring patent protection or enforcing their patent rights. Furthermore, the authors' "recommended reading" list cites only articles that support their own point of view. We welcome constructive suggestions for improving the U.S. patent system. We believe, however, that constructive suggestions must be based on an informed and objective viewpoint. HARRY F. MANBECK, Jr. Assistant Secretary and Commissioner of Patents and Trademarks Patent and Trademark Office U.S. Department of Commerce Washington, D.C. ^M Garfinkel, Kapor and Stallman reply: We are software developers, not lawyers. While Commissioner Manbeck surely understands better than we how the legal system analyzes its actions, we are better placed to understand their effects on software developers. What does it mean to ask whether algorithms are patented? From a legal point of view, the question is whether this patent or that is considered to be "a patent on an algorithm". The patent system does not consider any patent to be "on an algorithm" since the Supreme Court has ruled there may not be such patents. But the question that matters to a programmer is whether patents prohibit the use of a certain algorithm. As a matter of practical fact, they often do. If you ask an expression on data compression what patent 4,558,302 or 4,814,746 covers, the response will be, "It covers the LZW compression algorithm." (Both of these patents cover *the same* algorithm. Yes, this is not supposed to happen, but it does.) A claim in a patent prohibits any system with a certain combination of elements. Commissioner Manbeck mentions a seeming contradiction in our article which does call for an explanation. We stated that there was no shortage of publication in the software field. We also stated that it is hard to find prior art for many techniques now patented because no one bothered to publish them. But this is not a contradiction--both statements are true, but in different domains. Software developers have always been eager to publish papers describing impressive achievements. These papers describe new algorithms and techniques that programmers think bring someone credit. The peer review system makes sure of this. But what of techniques that did not meet this standard? Minor clevernesses? They could not have been published in a serious journal, so we told them to our friends to win a chuckle. They were not important enough to publish--but some of them are now patented. For example, in the mid-1970's it took just one instruction on the PDP-10 at MIT to perform the exclusive-or operation to modify the screen contents. It would have been ludicrous to submit a journal article about such a simple thing. And dishonest as well, since the MIT programmers did not believe they were the first to use this technique. Far from considering this their secret, they thought it was generally known. It is uncertain whether their work results in legally valid prior art for patent 4,197,590. Repeated experience shows that this example alone is enough to convince an audience of programmers that the patent system is off course by miles, not just inches. Yet advocates of software patents continue to defend it as legitimate. We do agree with one thing said by Commissioner Manbeck: a major change in the patent system should only follow from a clearly demonstrated need. It is unfortunate that this principle was ignored when patents were imposed on our field; only a small number of lawyers and a smaller number of judges participated in the decision, and the need for the change was never demonstrated to the satisfaction of programmers. Since the requisite scrutiny was omitted then, better late than never: this change should undergo be scritinized properly now before society accepts it as permanent.