(Someone wondered whether this was relevant to the list. The software patent issue goes back a long ways with the cypherpunks and is pre-eminent in `our' role of software development and the use of PGP and other cryptographic and general algorithms.) With that aside, here is some more info that should help cypherpunks decide whether SPI is friend or foe, and I'd like to see reactions. They are either an obstacle or a useful tool in the eradication of past and future software patents. I used the subject `birth of the SPI' in the first message because (ahem) I'd never heard of this organization or seen it mentioned here, which is somewhat surprising given its goal. They may be fairly new but Richard Stallman of FSF (Free Software Foundation) has forwarded a paper by LPF (League of Programming Freedom) as early as April, so they've been around at least that long, at least in theory. The LPF paper is a bit speculative and clearly doesn't know what to make of SPI except taking a rather pessimistic view--it probably came out around the time of its inception. The SPI acc. to the statement is going to be a professional, searchable database in the style of Westlaw and Lexus with a charge for access, `which suggests that in practice it may be available primarily to larger companies'. This is probably the most damaging claim:
The SPI is supported by large companies such as IBM, Apple and DEC that can expect to have many software patents, and by patent law firms. It is not likely these sponsors would support the SPI if they expected it to prevent most software patents.
Here are the other assertions: - the database will tend to help companies strengthen their future patents by eliminating the weak aspects by searching through the database of `prior art' - the SPI `cannot prevent all patents that harm the software field but prevent a certain kind of Patent Office mistake: overlooking prior art whose prior publication can be proved', `only a fraction of the patents that cause trouble for programmers'. But the LPF paper is very unsatisfying. It closes by simply suggesting not to bother with SPI but
Instead, spend it telling our lawmakers that software patents are harmful and should be abolished.
Definitely a valid approach, but seemingly a bit innocuous and ineffectual. *If* SPI is a professional organization, well-backed, and dedicated to the goal of abolishing software patents, it would be a much more influential and dynamical force in the cause than a letter-writing campaign. I just wrote a message to R. Stallman pointing out the potential advantages of this database in the cause of eradicating software patents, and am listening for more info on SPI. I pointed out: - Ultimately, the goal of constraining software patents *seems* to be common to both the SPI and LPF, we just have the case that LPF is a little more extreme in asking for complete abolution. To address this, consider that SPI would be a useful stepping stone to a world with no software patents. - The database has the support of very major companies such as Apple, IBM and DEC. This is the kind of thing that gets press coverage and public attention and *pressure*. - The database could actually be used as a tool to thwart new patents. Potentially programmers could send all techniques not covered by past patents to the list to prevent future patents regarding the art, accompanied by notices `releasing the technique to the public domain'. I don't know the legal force of this, but the patent office has been tiptoeing on tenuous law for software patents in the first place, and perhaps might be encouraged to tiptoe in the opposite direction. In other words, while the current patent situation is like a bunch of landmines strewn by lawyers for programmers & developers, the archive could hold a bunch of landmines strewn by programmers for the lawyers. Anyway, I hope to hear more about this agency. If all that LPF advocates is `writing letters to congressmen' and demeaning more organized efforts (note I'm definitely reserving judgement on whether SPI is a cypherpunk ally, current signs are not promising) then I'd say they aren't going to meet with a lot of success. Here's the complete paper from LPF, feel free to frame it or cover the bit bucket with it. While we may not know what to make of SPI currently, it is likely to play a very prominent future role in this arena if not disbanded. I would really like to hear from representatives of Apple, DEC, IBM, et. al. on how their participation & support of the project should be construed. ===cut=here=== What Can The Software Patent Institute Accomplish? by the League for Programming Freedom (14 April 1993) Software patents are patents which can apply to (and thus prohibit) writing a program. Any software patent can cause trouble for people who want to develop software. Some software patents are Patent Office mistakes which cover things that are already known. In some cases (but not all), these mistakes can be proved based on published prior art. Other software patents do not result from errors of the system, but are still disadvantageous to software development. How much trouble a software patent causes is independent of whether it violates the patent system's own rules. And the sheer number of software patents causes trouble regardless of their details. The Software Patent Institute is a new organization that aims to produce a data base of "prior art"--published and known software ideas--to make it easier for the Patent Office and others to find out which software techniques and features are already known and thus supposed to be unpatentable. The SPI cannot prevent all patents which harm the software field. It can only prevent a certain kind of Patent Office mistake: overlooking prior art whose prior publication can be proved. Thus, the SPI can address only a fraction of the software patents that cause trouble for programmers. Even perfect knowledge of prior art would not prevent all absurd software patents. Some software patents cover such trivial matters that a description of the idea would be reject by any professional technical journal. For example, patent number 5,049,881, issued in 1991, covers modifying the way a data compression program uses a hash table to look up the strings that have assigned encodings: specifically, when it has found the hash bucket for a string being looked up, it considers only the first string in the bucket as a possible match, rather than all of them. Patent number 5,140,321, issued in 1992, covers checking just the first N strings in the hash bucket as possible matches. (Both of these modifications apply to a particular data compression algorithm, and similar modifications could probably be patented for any other algorithm.) To ask whether those particular variations were published before, is to miss the point---it is a mistake for patent system decisions to depend on such questions. But those questions are the only ones that the SPI can help answer. No matter how well the published prior art is known, it cannot include all variations, and under current policy, many of these can be patented. What's more, you cannot effectively challenge decisions about obviousness in court, because the courts presume that the Patent Office has exercised good judgement when deciding what is obvious. But suppose that the Patent Office learns how to judge obviousness better; then how much good can the SPI do? Even if this prevents a sizable fraction of future software patents, that will not appreciably reduce the problem that software patents cause for programmers. Even cutting the number of software patents in half (which would be great success for the SPI!) will not cut the problem in half. This is because a large software system is likely in the future to infringe a large number of patents--easily dozens. Even if half of them were eliminated, the remaining half could still create prohibitive problems. There is no official figure for the number of software patents we have today, but 5000 or 6000 is a likely estimate given past numbers and trends. (To find them all would be a mammoth task.) At the beginning of 1992 there were 9000 pending patent applications in a category which contains many software patents, which suggests there will be many more software patents in the future. To make software development a safe activity again, we must do more than cut the number of patents in half. Eliminating 90% of the software patents that exist today would just reach the level where further reduction starts to help matters. (See the LPF's position paper, "Against Software Patents," for more explanation of why software patents in general cause mainly trouble, even those that are not trivial.) While the SPI may prevent some software patents from being issued, ironically it may also make some patents more dangerous by helping the patent applicant design the patent to withstand legal challenges. Even the holders of existing patents can use this information to rewrite the patents and make them harder to overturn. For more information, see the companion paper, "What Should You Do With Prior Art?" The SPI is supported by large companies such as IBM, Apple and DEC that can expect to have many software patents, and by patent law firms. It is not likely these sponsors would support the SPI if they expected it to prevent most software patents. The interface proposed for the SPI's database will resemble those of Westlaw and Lexis; it seems to be aimed at use by lawyers, not software developers. The SPI plans to raise revenue by charging for access to the data base, which suggests that in practice it may available primarily to larger companies. The operation of the SPI will not alter the overall software patent problem. So wish the SPI good luck in preventing a few absurd software patents; but don't spend your time on the SPI. Instead, spend it telling our lawmakers that software patents are harmful and should be abolished.