Subject: Re: Why software patents are bad
From: "Karsten M. Self" <>
Date: Wed, 22 Sep 1999 07:57:29 +0000

Bernard Lang wrote:
> On Sat, Sep 18, 1999 at 12:03:10PM -0700, L. Peter Deutsch wrote:
> > One could argue that in software, just as competitors can work around
> > copyright by recoding, competitors can work around patent by
> > reconceptualizing.  I agree that as a practical matter, there is a huge
> > difference in degree of difficulty.
> True only if you assume that patents are given for real software
> innovations rather than for simplistic ideas as is the case now.  I
> have been talking to an IP lawyer who told me that for patenting, what
> you accomplish is what matters more than how you do it. The example he
> gave me is that if your system filters e-mail for some purpose, the
> patent will cover the idea of mail-filtering regardless of how it is
> achieved. In other words, if I understand him correctly ... which I
> hope) it kills any incentive to develop a good mail filtering
> technique since
>   - if you intend it for the same application, you will be blocked by
>     the existing wide patent

Possibly.  But you may also be in a position to block the earlier work,
or control the growth path of application development.  Often the most
useful situation in an industry is for several parties to hold patents
covering different parts of a technology.  This often results in a
cross-licensing or patent-pooling arrangement.  It's for this reason
that I (albeit reluctantly) encourage free software developers to
consider patenting technologies if they have the resources to do so. 
Ultimately the patents can be used to create a defensible space around
free software.  Of course, with a change of heart, they could also be
turned against it.  For reasons expressed elsewhere, I'm looking to
copyright and licensing as a preferred alternative.

>   - if you intend it for a new application, you might as well patent
>     the wider (and usually trivial) concept of using mail-filtering
>     for that purpose, and keep your actual technique secret (in object
>     code + copyright + law against retro-engineering), or even not
>     bother to develop it.

I don't know about French law, but US copyright law (the Digital
Millenium Copyright Act) specifically provides copyright exemptions for
reverse engineering.  At least as the Act has been explained to me. 
Previously, reverse engineering was allowed in the US under the Fair Use
doctrine, as established in MAI v. Peak.

Karsten M. Self (
    What part of "Gestalt" don't you understand?

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