[Patents] [Fwd: Is it legal?]

[Roberto Micarelli mi.ro@iol.it]

Vin McLellan wrote:
> 
> At 02:09 AM 12/29/99 -0700, Boyan Paduh wrote:
> >This is all getting too silly to discuss.
> >
> >Its like saying,
> >
> >hey why dont I take a patent out on my name , so nobody can have the same
> >name as me, and if someone wants to name their kid my name, they have to 
> >pay
> >me royaltees. ?
> >
> >that's what I think about silly software patents.
> 
>         I don't doubt that there are some silly software patents.
> 
>          I watched the 5-7 year debate in the US in the '70s and '80s about
> what type of intellectual property protection was appropriate for software,
> however.  Young people on this List often presume that they are the first to
> consider these issues; and few look back to sort out the debates that framed
> the issue in the past, when crucial policy decisions on software IP were 
> made.
> 
>         Back when, I was personally an advocate of a new and more short-term
> class of IP for software functions, as were many of the larger and more IP
> savvy US computer firms.
> 
>         We lost out to those who argued persuasively  that international IP
> politics made it a simple choice: either software would claim the
> traditional IP of copyright and patent protection -- which was already
> codified in international treaties, widely endorse by the world's nations --
> or it would dangle like low-hanging fruit; legally without any protection;
> available for anyone to reverse engineer and copy.
> 
>         It was unlikely in the entreme that the majority of the world's
> nations would agree to ratify a new class of IP for software, it was said,
> since so many had nothing to protect... and much to gain if software had no
> IP status.
> 
>         American firms had only slowly moved beyond freeware/shareware  (the
> first IBM users' group was called SHARE) to an appreciation of the amount of
> money that would be required for software development, and most eventually
> realized that only if they obtained legal protection for IP in software
> could they justify the enormous expense of developing (then mainframe and
> miniframe) software applications.   Many had concluded that software
> development costs -- even shared software development costs -- could not be
> justified, period, when any competitor could stroll buy and walk off with
> the results of a long software development effort... and bring it to market
> or use it nearly as quickly as the firm which developed it.
> 
>         (That's one reason why, until the mid-1970s, virtually all computer
> hardware and software development in the US was directly funded by the US
> intelligence agencies and US Atomic Energy Commission.  The results of all
> that development was left in the public domain,  available to all
> competitors -- even new companies which popped up out of nowhere with skills
> and enough capital to play in the league.  As the government retreated, and
> as the corporations began to put their own money on the line, they demanded
> some protection --  something beyond trade secret status -- for their
> investment in software development.)
> 
>         I think there are now some 150 distinct public key cryptosystems
> (with and without digital signature capabilities) which have been announced
> or published.  The basic designs of many -- dunno exactly how many -- have
> been patented in the US or elsewhere.  For others, crucial subsidiary
> functions, necessary to make these schemes useful or competitive, have been
> patented instead.
> 
>         Few, if any, are silly.
> 
>         None were obvious to me (admittedly not a high standard;-), but the
> allegations that these inventions are "obvious" -- so easy to spot that two
> bright guys out of three would trip over them and recognized them
> immediately for what they could functionally be --  are generally reserved
> for the earliest and most commercially successful full-function public key
> cryptosystem: RSApkc.
> 
>         Generally speaking, the other patented PKC mechanisms are also novel
> uses of (typically non-trivial) concepts -- but some (like Rivest's
> symmetric RC5 and RC6;-) use a mechanism that, to some eyes, has all the
> elegant and "obvious" simplicity of an aerosol valve or a lightbulb.
> 
>         The fact that thousands of people slap their forehead and say, "Why
> didn't I think of that!" is not, however, a valid reason to deny the first
> guy to put it together a patent.  Most of the great inventions that changed
> human history look obvious in hindsight.
> 
>         Some of the new PKCs (like ECC, or the lattice-based NTRU) look like
> they offer interesting advantages over others -- but it will be very
> difficult for any of these alternatives, even the best known, to gather a
> level of assurance equal to that provided by RSApkc.  None of them, for good
> or ill, is likely to draw the level of obsessive critical study  that RSApkc
> got from the emerging academic/corporate crypto community over the past two
> decades. (Mind you, it was only after more than a decade of this
> concentrated attention that NFS, to date the most effective brute-force
> attack on RSApkc, was discovered and refined into an effective factoring
> method.)
> 
>         In the US, at least, the legitimacy of the so-called "means plus
> function" format as a way of writing a valid patent application for
> cryptosystems (in the specific context of a computer or communications
> system)  -- and the legitimacy of the RSApkc patent itself -- has been
> extensively litigated.  Several times.  (Only on a few mailing lists like
> this one is it repeatedly asserted that this is still an open and unresolved
> issue in US jurisprudence;-)
> 
>         MIT's RSApkc patent is at:
> <http://patent.womplex.ibm.com/details?&pn=US04405829__>
> 
>         One of the latest Appelate Court rulings (1998) addresses the claim
> that the RSApkc is nothing more than a pure mathematical function (which can
> not be patented.)  The Appelate Court's review of the argument and cites are
> at <http://www.ll.georgetown.edu/Fed-Ct/Circuit/fed/opinions/98-1005.html>
> -- but the Court's conclusion is usefully terse, and bluntly declaratory:
> 
>         "This court, in banc, has determined that claims written in
> means-plus-function format contain statutory subject  matter [and are thus a
> valid subject for a US patent] even if functional phrases of the means
> limitations recite mathematical calculations. See Alappat, 33 F.3d at 1544,
> 31 USPQ2d at 1558.
> 
>         "Therefore, the claims of the '829 [the RSApkc] patent do not wholly
> preempt the use of mathematical calculations because the claims are limited
> to the structure disclosed in the specification and equivalent structures
> for performing the claimed functions. We therefore affirm the decision of
> the district court denying [the Plaintiff] summary judgment that the '829
> patent is invalid."   [My interpolations in brackets. _Vin]
> 
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