Gentoo Archives: gentoo-dev

From: Stuart Herbert <stuart@g.o>
To: Sven Vermeulen <swift@g.o>
Cc: gentoo-dev@g.o
Subject: Re: [gentoo-dev] European Patentability rules
Date: Thu, 28 Aug 2003 11:31:00
In Reply to: Re: [gentoo-dev] European Patentability rules by Sven Vermeulen
1 On Thursday 28 August 2003 9:59 am, Sven Vermeulen wrote:
2 > You have IP in the form of copyright and licensing.
4 Licensing is a subset of contract law, involving the lending of rights or
5 assets from one business party to another. IANAL, but as I understand it,
6 licenses don't provide legal recognition of IPR.
8 > If they happen to find a similar algorithm doing the same thing due to
9 > their own research, they should be able to use it anyway.
11 And this is the crux of the real problems (imho) with software patents.
12 Because software is typically made up of hundreds (if not thousands) of
13 processes at a time, it seems impossible for programmers to avoid
14 independently inventing the same processes time and time again.
16 This alone would seem to fall foul of the UK requirement that:
18 "To be patentable your invention must ... involve an inventive step.
19 An invention involves an inventive step if, when compared to what
20 is already known, it would not be obvious to someone with a good
21 knowledge and experience of the subject."
23 > IP protection is to _protect_ the _investements_ you've made so that other
24 > companies/people don't use your _inventions_ without having to go through
25 > the same timeline (idea, research, development, simulation, testing,
26 > production).
28 IP protection is to create a legal recognition of your IP. It creates an
29 asset, and a "territorial right" (quoting from the UK Patent Office) to legal
30 protection of that asset.
32 > With normal patents, this IP protection is settled. However, software
33 > patents are much worse; they allow anyone to protect an idea, a
34 > general/generic look and feel of any algorithm. You prohibit others to even
35 > think about implementing something like your invention, even though they
36 > will have to go through the same cycle (irdstp). This is not IP protection,
37 > this is creating a monopoly.
39 Now we're back to the evils of the *system*. I don't support the current
40 system, and have already said that. Let's move on.
42 IP protection *does* allow you to create a monopoly of sorts by its very
43 nature. That seems unavoidable, unless you wish to do away with IP
44 protection.
46 > No, since remote access is a concept. Their implementation can and should
47 > be protected (dunno how it's called with HP), but they shouldn't stop
48 > others to develope a remote access implementation different of their own.
50 I agree that any protected IPR should be specific in nature.
52 > If I would have invented a way to predict register values before an
53 > algorithm has completed, I can implement this in a compiler to produce
54 > faster code. To protect my IP, I should protect my implementation. However,
55 > if I patented the concept of value-prediction, I make sure that no-one can
56 > ever develop something similar (or even better).
58 Similar, yes. Better - no. The vast majority of UK patents (and, I would
59 wager, this is true for other systems too) are for incremental improvements
60 to existing inventions.
62 > This is completely against the spirit of patents. Patents should promote
63 > research and development by giving the inventor a means to protect its
64 > investements.
66 You've confused me. How is this statement in conflict with the idea of you
67 protecting a concept of value-prediction?
69 > Even more, if _you_ develop software, do you check all existing patents to
70 > be sure that your software doesn't cross one of them? I'm sure that you
71 > don't.
73 You're right, I don't. But there again, I live in a country where most
74 programmers believe that software patents aren't part of our legal system.
76 > John Gage, the Chief Researcher and Director of the Science Office of Sun
77 > Microsystems, had a nice talk on the ONEday conference in Genval, Belgium
78 > on the 30th of July in which he described his PoV on software patents. One
79 > of they key items in his speach was that most _real_ software inventions
80 > (protocols, internet, ...) were inventions of students or people that have
81 > just graduated, people that don't think about patents. These inventions
82 > have changed the ICT-world (TCP/IP, WWW, ...).
84 I always thought TCP/IP was invented for the US DoD? Vint Cerf does seem to
85 be talking about the ARPA network in his 1973 paper where TCP is first
86 mentioned.
88 I don't know what the situation was back then, or what it is now, but I do
89 know that, in the 80's and early 90's, if NASA sold a piece of software, they
90 weren't allowed to license it - you bought the whole thing, (non-exclusive)
91 rights and all. That's how NQS became the de-facto standard for UNIX batch
92 processing. NQS was written for NASA, who then sold implementations of
93 Cosmic NQS to companies such as Cray, Sterling Software (both of whom
94 released their own commercial versions) and Monsanto (who released the whole
95 thing under the GPL). When I succeeded Monsanto's John Roman as maintainer
96 of the GPL'd NQS, I was led to understand that this ceeding of rights wasn't
97 unique to NASA's charter, but more widely applied to work done by the US
98 Government. If true, wouldn't that mean that TCP/IP was never going to be
99 patentable in the first place?
101 > Patents are for real, physic inventions,
103 Sorry, but that's not true, at least not here in the UK. The oldest surviving
104 patent issued in the UK was in 1449, for a process of manufacturing stained
105 glass windows for Eton College. Today, the UK Patent office very clearly
106 states:
108 "Patents are generally intended to cover products or processes that
109 possess or contain new functional aspects; patents are therefore
110 concerned with, for example, how things work, what they do, how they
111 do it, what they are made of or how they are made."
113 Like copyrights, a patent is a business asset that can be licensed if
114 required. No asset - no license.
116 Best regards,
117 Stu
118 --
119 Stuart Herbert stuart@g.o
120 Gentoo Developer
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