Subject: Re: Why software patents are bad
From: Bernard Lang <>
Date: Wed, 22 Sep 1999 18:15:24 +0200

On Wed, Sep 22, 1999 at 07:57:29AM +0000, Karsten M. Self wrote:
> 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.

knowing there are usually many way to do things, so that blocking is
unlikely, research is effectively discouraged. But the real point is
that the patent is non inventive.

and back to another point... open source does not provide fees
necessary for patents applications... at best we should publish all
ideas that come to mind, and publish in public places that patent
offices do not reach easily so as to raise the cost of patenting
because of the risk of undiscovered prior art. If it gets risky
enough.. maybe they'll relent (fat chance).

> >   - 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.

 European law allows it for purposes of interoperability.

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