Re: [Patents] RSA patents in EP limelight

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

Hell, you might just find my blunt page highly pertinent:
http://kwiki.ffii.org/SwpAbst040814En

:-)


Seth


Seth Johnson wrote:
> 
> 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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I reserve no rights restricting copying, modification or
distribution of this incidentally recorded communication. 
Original authorship should be attributed reasonably, but only so
far as such an expectation might hold for usual practice in
ordinary social discourse to which one holds no claim of
exclusive rights.