Re: [Patents] RSA patents in EP limelight

[Seth Johnson <seth.johnson@RealMeasures.dyndns.org>]

Holger Blasum wrote:
> 
> The exhibition by the European Patent Office in the
> European Parliament tomorrow highlights the RSA (US4200770)
> and DH patents US4405829 on public-key cryptography.
> 
> One obvious line of attack of course is that this was
> research by academics who would have done without the patent
> too (just to get published) and that it was in the air at that
> time (eg Pohlig/Hellman). And of course there is
> http://swpat.ffii.org/pikta/xrani/schnorr/index.en.html and
> Flinn's critique http://www.cyberlaw.com/rsa.html
> Other suggestions?



My general line in this circumstance would be to emphasize that
the EPO is changing the policy, while stressing the established
nonpatentability as self-evident and reasonable -- don't let the
line come down to "we gotta figure out how to deal with
innovation" after the subject matter test step.

Or to put it another way, continually find ways to point out that
they are moving past the subject matter test step.  Do different
things to repeatedly deliver that message.  One way to do that
which works even though it doesn't often win any individual
political argument, is with the "software is pure logical
abstraction" argument.  It's not a good rebuttal by itself, but
it nevertheless works if you disregard that aspect of it, and see
that just by raising that argument among others for keeping it at
the subject matter test step, at different times by several
people, then you can make clear that the structure of the event
is "front loaded" with predetermined conclusions (which in this
case also happen to fly in the face of the spirit of the law). 
What you do in that approach is just show to the participants
that 1) you know what they are doing in terms of changing the
policy and 2) multiple people support and understand that
software should be treated just the way it's supposed to be
treated, rather than according to the idea that just because it's
innovative, it should be patented.  This is effective
politically, from the standpoint of countering the premises built
into the situation.

The RSA example is one of the reasons why the "pure" line needs
to be there as a recourse.

I think your point about academics doing it anyway is also good.

See my email below, which you will recognize.  It's the one I
sent to Dave Farber's list when the software patent issue arose
there, shortly after the EU Parliament First Reading.  If you
read the thread, you'll see that I am countering the RSA example,
which had been raised by another person who responded to the
original question posed by Tom Gray before I did.

Can't say it's perfect, or that it evades the charge of
"philosophicality," but it worked.  The other guy replied
appreciatively to me in private (Not Tom Gray, who may very well
have been trying to plant seed of dissent on this side of the
Atlantic).

Maybe you'll get something out of it.

I think in general, stressing the fact that software patents are
presently illegal, that the EPO is changing the law, and
therefore demanding a proper consideration of the issue rather
than deceptive ploys, is important at this phase with the Second
Reading right now.


Seth


-------- Original Message --------
Subject: Re: Patents -- What is the distinction?
Date: Mon, 16 Aug 2004 19:55:32 -0400
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
To: dave@farber.net
CC: Ip <ip@v2.listbox.com>,
bts@alum.mit.edu,tom_gray_grc@yahoo.com, patents@aful.org


For IP.


You know, Dave, the reason why there's so much talk about
software patents right now is because in Europe they are not
legal and there is presently very successful opposition being
kicked up to efforts to make them legal.

In Europe right now, the EU Commission has been trying to tell
the public that they are not trying to allow patents on software
"as such," while at the same time trying to pass a Directive
making "computer-implemented inventions" patentable.

Incidentally, I'll tell you the reason: it's just because their
key performance indicator for "innovation" under their "Lisbon
Strategy" for the European Union, includes a simple count of
"patents!"

A patent on software in a device is a patent everywhere.  This is
because software is abstract, and that's what happens when you
patent abstraction.  Making software in a device patentable, is
not in any way different from making software patentable.

It's not just because that's what a patent is, and patents are an
unvarnished good.  An abstraction is a general rule by its very
nature, freely available for anyone's use.  A patent is a rule
under the law.

In 2000, the European Patent Organization tried to take the
provisions out of the European Patent Convention which state,
among other things, that computer programs cannot be patented,
but they failed.  So now the EU Commission and other parties in
the European patent establishment bureaucracy are trying to draw
deceptive distinctions between "computer-implemented inventions"
and "software as such."

They're actually trying to pass a law to accomplish one thing
while publicly professing that it's doing the exact opposite (not
allowing patents on software "as such" or "setting clear limits
on patentability" or "preventing a slide toward US-style software
patents" -- all abject nonsense, but exactly what's being said by
the proponents of this Directive).  Every time opposition kicks
up, they add fake qualifying clauses and make public
pronouncements saying that the Directive will not allow patents
on software "as such."

This "how do you distinguish hardware and software" line is an
analysis that indirectly emphasizes "protection" rather than the
fact that patenting abstract instructions given to a generic
logic device is an absolute impediment to innovation.  This is
not to speak of questions regarding freedom and a certain kind of
understanding which people have been encouraged to forget of
late.

It's not that you can patent hardware, but you can't patent
software; it's that you can't patent abstraction.  The nature of
the medium in which you express your ideas makes no difference. 
A specific kind of hardware, the generic logic device, has
brought about the existence of software, the ability to code such
a machine in those terms.  The generic logic device provides
abstract logical functions that may be directed by sequences of
instructions which are themselves inherently abstract.  The
reason not to patent software is because it's abstract -- it's
logic!  Whatever level language you use and whatever medium you
express it in, it still translates into logic.  Code is certainly
embodied in all sorts of physical forms, but it is a
representation of abstract ideas, just as surely as written
mathematical calculations are.

Note that right now, in Europe, individual computer users may
hold that the presumption of the law is expressly on their side,
that they may program their computers without regard for the
ridiculous prospect that someone may claim a patent on the
logical algorithms that they thereby express.

It's a surprise to me the way this question about distinctions
has cropped up on your list, which is generally focused on US
policy.

Observe as well that it's the EU Commission and other proponents
of software patents in Europe who put the question in terms of
misguided distinctions, without specifically taking the pains to
address the nature of the subject on its own terms.

The FFII has a lucid page on what's going on:
http://swpat.ffii.org/log/intro/index.en.html

The following (by me) puts things very bluntly:

http://kwiki.ffii.org/SwpAbst040814En


Seth


David Farber wrote:
> 
> Begin forwarded message:
> 
> From: Brian Thomas Sniffen <bts@alum.mit.edu>
> Date: August 16, 2004 3:04:18 PM EDT
> To: dave@farber.net
> Cc: tom_gray_grc@yahoo.com
> Subject: Re: [IP] Patents -- What is the distinction?
> 
> You're absolutely right that you should be able to patent your
> machine, including the software inside.  What most people complaining
> about software patents are talking about would not interfere with that
> -- they (well, we) have a problem with a different type of software
> patent.  As a couple of examples, there was a patent on using the RSA
> algorithm to secure data.  That was fine.  There's a patent on use of
> the LZW algorithm to compress data -- somewhat less fine.  There's a
> patent on using XOR to draw a cursor on a display.  That's completely
> not fine.  And there's a patent on remembering a customer so that he
> can buy things just buy telling you he wants them -- the infamous
> Amazon "one-click" patent.  That's so far from fine it's coarse.
> 
> What's the distinction here?  Well, there are two.  The Amazon patent,
> and many other very, very bad software patents, are patents on
> business methods.  There's a booming industry in taking any
> traditional method of commerce, slapping a web interface on it, and
> patenting it.  And this is legal -- now that organization is the only
> one who can use that technique, for years and years.
> 
> The one-click idea is obvious.  There were plenty of ways of
> implementing it, and plenty of people who'd done pieces of it.  But
> now, not only does Amazon have a monopoly on one-click purchases, but
> on many systems like that or incorporating pieces of it.
> 
> These patents on business methods in software are a real, serious
> problem.  And they share a characteristic with the other troublesome
> software patents: they're obvious.
> 
> A patent on use of XOR for drawing a glyph that's supposed to be
> obvious is right up there with a patent on using a lever to lift heavy
> things.  It's a normal, expected part of building a graphics system.
> It's so basic that it's definitional: a cursor *is* a quickly-drawn
> obvious glyph.  XOR *is* the maximum contrast operator, and *is*
> simple to calculate.
> 
> Patents like this are scattered throughout the current software
> development universe.  Rederiving LZW is a standard undergraduate
> information-theory problem.  That is, a bunch of undergrads will be
> given LZ and told to improve it to solve certain problems, and the
> vast majority of the class will come in the next morning with LZW.
> 
> But until it expired very recently, somebody (UNISYS, more or less)
> has a monopoly on use of that algorithm for compression, granted as a
> reward for developing something innovative and non-obvious.  There are
> over two hundred similar patents which encumber any reasonable
> implementation of a computer operating system.  It's not possible to
> build a reasonable software system without infringing on many of these
> patents.  That strongly implies that they're not obvious, and many
> never were.
> 
> What's the solution to this problem?  There are several possibilities,
> none of which are harmful to real innovators:
> 
> * Reduce the amount of time a patent lasts.
> 
> * Examine applications much more closely for obviousness and innovation.
> 
> * Rescind patents when their art matures enough to consider their
>    ideas obvious.
> 
> * Eliminate business-method-in-software patents.  For example, require
>    that the technique be globally novel, not merely novel within the
>    field of software design.
> 
> But none of those hit the real core of the problem: software
> construction is all about abstracting ideas and methods of operation.
> Code reuse is common and vital.  But the industry's still in its
> nascent stages.  Patents on techniques that weren't innovative in 1988
> are still restricting what people can build; that became basic,
> standard technique over a decade ago.  The only way to fix that
> problem is to remove the ability to patent ways of manipulating bits
> with other bits.
> 
> -Brian
> 
> David Farber <dave@farber.net> writes:
> 
> > From: Tom Gray <tom_gray_grc@yahoo.com>
> > Date: August 16, 2004 11:01:56 AM EDT
> > To: dave@farber.net, tom_gray_grc@yahoo.com
> > Subject: Software Patents -- What is the distinction?
> > 
> > There have been some recent postings to the  IP list
> > about software patents. Frankly I cannot understand
> > the point behind these posts and others that I have
> > seen. I have designed hardware and I have designed
> > software. I cannot see any real difference in the
> > design of each. In fact, in designing a solution to a
> > problem, I am often faced with the choice of
> > developing a custom circuit or of choosing one of many
> > processor/software design architectures. The choice
> > between hardware and software does not depend on
> > anything inherent in either technique but in various
> > aspects, such as cost, space  availability etc., that
> > depend on the current technological context.
> >
> > Sine patents do not protect a design in itself but the
> > combination of a solution and a perceived problem, I
> > cannot see any reason why there should be a
> > distinction between a hardware and a software-based
> > design in this regard.
> >
> > If I design a piece of hardware that contains a
> > controller which sequences circuit behavior through
> > some custom microcode, should I not be able to patent
> > this design. It is both hardware and software and both
> > neither.
> >
> > Why should patenting not apply to software-based
> > designs?
> >
> > Tom Gray



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