[ In the following 100 line post about the origin and philosophy of relevent law, I gradually lead in to privacy issues; I discuss U.S. laws regarding patents and privacy and such because I am largely unfamiliar with such laws in other countries; mea culpa. If you don't really care about legal issues, skip this. ] Svetlana Borisova <svet@nrcbsa.bio.nrc.ca> said:

smb@research.att.com wrote: And if you do -- well, then, the patent system has succeeded in its goals, in that the monopoly assigned to someone else has stimulated you to find another way to do things, and thus furthered the useful arts and sciences.

Of course, wonderful idea! Hey, let's patent all irrigating systems so that people have to think of other ways to make plants grow.

I agree that the patent system in the U.S. (and elsewhere, 'though I know much less about that) has severe faults in implementation. The entire area of software patents is being grossly mishandled, for instance. On the other hand, you seem to have a distaste for the entire *theory* behind it, and I must differ on that point. The legal philosophy of patents is to encourage invention that will be of value to society in general. It is *not* directly intended for the benefit of the person holding the patent, although it often seems to work out that way. "smb" is referring to that philosophy. The alternative to the general philosophy is to refuse to grant legal protection to invention.

The goal of patents is to give a researcher a reward for his invention; to give him the opportunity to make money off it.

This is incorrect; ask any patent attorney. In the U.S., anyway. Ask a Canadian patent attorney...but I'm 99.9% sure that Canada follows precisely the same legal philosophy. In the U.S., the legal philosophy is derived from the fundamental meta- philosophy of its law which evolved out of British common law dating back to at least the Magna Carta, which is that (loosely) the purpose of law is for the common good. Every year there are cases in the U.S. where judges make a "surprising" decision that overturns the apparent letter of the law in favor of an appeal to the common good of society. Case law is filled with such things. There is always a tradeoff against rights of the individual. But the Magna Carta itself was necessary in order to begin to establish some rights for individuals against that of society (as represented in that time by the sovereign). Similarly in the U.S., the Bill of Rights acts to establish those minimal rights. But whereever the Bill of Rights is not explicit, on average you can expect courts to rule in favor of the rights of society. (And sometimes even then...) There are some cases where this is easy to view as a bad thing, others where it seems clearly a bad thing. But there is nonetheless many centuries of tradition behind this approach. Patent law is merely one more example. As smb said, it offers a monopoly for an individual, which would usually be considered to be contrary to the good of society. But it does so in order to foster more invention, which is considered to be a good for society. It simply appeals to individual avarice for the sake of the common good, trading off the global long term good against the short term loss. In short, it has an unusual lack of short-sightedness to it...in *theory*. Patent law most certainly and unquestionably is *not* in existence for the benefit of the inventor, like it or not. If you are implying that you think that there should never be legal protection for intellectual property of any sort, as e.g. Stallman has told me he believes, then we'll just have to agree to disagree. Stallman believes that such a philosophy is in favor of individual rights, but historically that philosophy has resulted in a *loss* of individual rights. But then, Stallman isn't too hot on history of law... If on the other hand you merely mean that you disagree with the way that the patent system is working out in a lot of cases currently in the U.S., then you should be more careful to distinguish the legal theory from the legal implementation of the theory. It's very much like the U.S. Bill of Rights in theory versus practice; the two can be quite different. Cypherpunks is in large part about privacy. In Roe versus Wade, privacy was (rather amazingly) held to be an implication of the U.S. Constitution, and as a side effect abortion was judicially held to be legal. The right to privacy is not explicitly spelled out in the Constitution nor Bill of Rights, though, and so most courts, including the U.S. Supreme Court, have far more often held that there is no automatic right to privacy. That's why Roe vs. Wade was both amazing at the time, and has been in such jeopardy since. California is an interesting case, because its state constitution *does* guarantee a right to privacy, but that doesn't slow down the right to life protests, naturally, just as an aside. :-) Public key cryptography is a mechanism for privacy. There are vast complications because: 1) Privacy is not explicitly guaranteed by the U.S. Constitution. 2) Privacy is not generally guaranteed by case law, Roe vs. Wade aside. 3) The patent claims for public key cryptography are overly broad, demonstrating obvious incompetence on the part of the patent examiners involved, yet to correct this injustice would require a test case in which the plaintiff willingly exposed himself to the potential of large damages. 4) This effectively makes the only known methods for *technically* private long distance communication via any media impractical for *legal* reasons. 5) Even in California, the state constitution is of no help, because the applicable patent law and privacy case law are in the federal domain, not the state's -- at least by default. Again it would take an actual court decision to decide otherwise, which doesn't appear likely. The question is what to do given all of this. If one works within the system, the answer is to find someone with bucks for a defense and devise a test case...one intended to lose at every level until it reaches the Supreme Court, where it is then intended to win and thus establish ultimate precedent. Chancy proposition. The other in-system approach is to lobby and to educate. Also chancy. But worth doing. Doug P.S. I am not a lawyer, nor do I play one on t.v.