Addressed to: Paul S. Penrod <furballs@netcom.com> Cypherpunks <cypherpunks@toad.com> ** Reply to note from Paul S. Penrod <furballs@netcom.com> 06/19/96 10:14am -0700 I think most of the basics were covered in the list response, except each had a piece or two to say, part of which was usually incorrect, and none caught the scope of the issue in its fullness. Until a patent is sucessfully challenged _and_ "destroyed," it is resumed valid in the country of issue, regardless of the source of a competing product which may have been manufactured in a country where patents mean little, if anything. --e.g. any country other than the U.S., Canada, and Western Europe. GOOD patents, with claims which are both narrow enough to define what is patentable and broad enough to cover "work-arounds," are expensive to obtain: >$10,000 domestic plus foreign costs. there are arcane rules as to the time of filing for foreign patents if they are to be valid, often requiring separate efforts, and different claims, in each jurisdiction. smaller companies are obviously at a disadvantage since resources, particularly in development houses, are small. development companies tend to recover their expenses with immediate product (much smarter than waiting for the patent office to declare you King Kong) thereby also avoiding being beaten in the market window by an also-ran product. An alternative theory is to pray that a Fortune 100 releases product which violates your patents. Caveat: it is still your responsibility to "protect" your product and not lose your rights by default. This is expensive and further requires that you reduce your theory to practice -- you do reduce the theory to practice, you are in a very weak position --again, unless you are IBM, AT&T, etc. who practice law by intimidation and burying the opposition in excessive and frivolous paperwork. Then there is the problem of the capital required to litigate an interloper. When I attempted to litigate the Fortune #1 company 10 years ago --the MINIMUM advance fee requested by every lawyer (even ones I have previously consider fiends) was $2 MILLION; which, although still less than the contractual royalty claim, was not exactly in my bank account! --and, the greedy bastards also wanted 10-15 years to collect and 33-50% of the recovery plus expenses. So, I litigated the claim myself (9 months), and won in Federal District Court. I was lucky, with a never-used-in-the-US law degree; the five other companies in the same bag received nothing on their claims: they could not afford the legal expenses. I did not like lawyers as a breed prior to this incident, and I like them significantly less now. we will not discuss the issue of respect or their value as a food substitute (really.., they taste just like chicken). patents are further cluttered by the fact it averages 3 years to obtain a patent, and technology moves far too fast. then, even with fundamental patents such as RSA is holding one of, there are the legal challenges as to both the validity and whether or not it expresses claims which are both original and non-obvious. non-obvious is a key factor --you can not patent the "fact:" "a chunk of sodium tossed into a toilet ball often destroys the toilet...." lastly, particulary in software, there is the challenge: "...all knowledge should be _free_!" Well, that is fine and good, but how do you pay researchers? have them pump gas all week and donate research time on the weekends? very few researchers have the piece of mind to be creative when their children are starving. --oh, well, we still have the unmarried nerds who require only space to sleep (standing up), BigMacs and chips.... from my perspective, the patent system is absurd --not because of the protection it purports to provide, but that it is a) ridiculously slow and arcane, dominated by how a lawyer who has no clue, writes _claims_, in words, defining what is unique; and b) it is insufficient to deal with _intellectual_ property rights which can not always be reduced to a simple mechanical/hydraulic drawing and some words _claiming_ its uniqueness. The real rub in patents is that _words_, not the technical definitions and diagrams, or even the "experts" in trial, that wins patent litigation. The circuit diagram or the mathematical equation is noting more than a sidebar note. Therefore, patents have become a weapon, a weapon of the established to intimidate the new kid on the block. what are the chances for meaningful patent reform? slim to none. why? it will offend the lawyers, and their $10,000 words! any of you have been involved in patent litigation must realize the absurdity of a Federal jury deciding the validity of high-tech patents. and, if you, the developer, take the product to market, you run the risk of a major company patenting _your_ idea and litigating you! but "I have prior art you scream!" --yes, and they will have notebooks with a paper trail and you will have none. what does the legal system require? paper trail. personally, I think RSA has been most generous in their licensing: a personal use license of the basic algorithm is free. How do you suppose PGP really exists? it's free! RSA has done more to advance cryptography with this policy than any other in many years. the political and public relations benefits to our rights to cryptography and the public relations bonanza for public awareness is not even estimable, let alone measurable. The Federal persecution of Phil Zimmerman was a PR bonanza and a rallying cry. on the other hand, the Free Software group, despite the tremendous value to those of us who develop, does nothing to protect our basic freedoms, and place the issue before the U.S. (and world) forum. whether or not we like like RSA's "charismatic" leader, give credit where credit is due. if you are creating a commercial product, you pay royalties. remember, patents and patent royalties are a trade-off in the system. would you not expect royalties for your patent? I know I do; have collected many; and, hope to be able to continue to collect same, despite by dislike of the current U.S. Patent Office. that's all, folks! -- Fuck off, Uncle Sam. Cyberspace is where democracy lives!