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- From: Lee Anne Phillips <firstname.lastname@example.org>
- To: xml-dev <email@example.com>
- Date: Tue, 25 Jan 2000 08:50:50 -0800
At Tuesday 1/25/00 09:10 AM +0000, Bill dehOra wrote:
>You might need to distinguish between an algorithm in the mathematical sense
>and the implementation of an algorithm. One the great ideas of this century
>is that you can separate the logic of a machine from its mechanical make-up.
>The entire software industry is built on this idea.
>Implementations of algorithms can be easily seen as machines, just because
>it doesn't have gross moving parts doesn't make it not a machine. Would you
>accept Amazon's one click patent if they used water driven gears and a
>couple of Jacquard looms?
Contrary to popular belief, the framers of our patent system were well
aware that machines embodied ideas, which is why they allowed only specific
embodiments of the basic ideas to be patented and not the ideas or
algorithms behind them. So yes, I would accept a one-click patent based on
gears and Jacquard looms, if Amazon cared to try to patent that embodiment
of the idea. Of course they'd have to mention Babbage's prior art. I might
even accept a specific electronic implementation on a particular computing
machine, but there is a level of abstraction beyond which you can't go
without strangling the source of ideas.
I'm sure we're all aware of Alan Turing and his gang of cryptographers, not
to mention Colossus, but that doesn't change the basic conflict between the
current state of affairs in the US and the real purpose of patent law,
which is, as has also been pointed out by other posts, to encourage the
public exchange of ideas by allowing someone with an idea to license their
embodiment of it, encouraging others in turn to take that idea and either
build on it or find a better way of doing it.
Using Turing's insight to twist the patent law into pretzels by allowing
*any* idea to be embodied concretely, thereby allowing the patenting of the
very ideas and algorithms specifically prohibited by the framers of
"natural" patent law, is a result only a lawyer or accountant could love.
In fact, if the Turing test is ever passed, you could patent people, which
some of us might eventually recognize as reductio ad absurdum. But only in
the USA, thank heavens.
This doesn't encourage innovation, only more and more Byzantine attempts to
work around legal minefields laid by companies anxious to make competition
more expensive. And the admitted incompetence of the PO makes it possible
for ideas that have been originated and widely used by others to be
disguised by verbiage to the point that the patent examiners don't
recognize them, tricking them into granting a government license to bully
small competitors with a presumption of protection and a heavy burden of
proof and potential costs to overcome. It works only to discourage small
innovators and protect the interests of large corporations, who can afford
the cost of initiating a patent search and application as well as the lawsuits.
It's worth noting that MS-DOS was a cheap knock-off of CP/M, and if the
patent office had allowed protection of computer "methods" at that time,
Bill Gates might possibly have stayed at Harvard and been in some other
line of work today. Whether this would be good news or bad is up to your
own good judgement.
The fact that there are two systems of protecting innovation, patents and
copyright, is the embodiment of the wisdom of the original framers of our
"intellectual property" laws. If you wanted to protect a machine, you used
patents and could protect and license the physical embodiment of the idea
but not the idea itself. If you wanted to protect an idea, you used
copyright to protect your specific expression of the idea but, again,
couldn't protect the idea itself.
Ideas were always exempted from any sort of protection because the purpose
of both laws was to encourage the free expression of and interchange of
ideas. If you wanted to take the idea and run with it, you were free to do
so as long as you used your own words (copyright) or mechanisms (patent) to
do so. Copyright lasts for a long time, as is appropriate, a book can be a
lifetime investment of research and effort, while patents are fairly short
term, also appropriate. In fact, given the pace of mechanical innovation in
modern times, it could be argued that patent protection periods should be
decreased. A 17 year term made sense in horse and buggy days. I'm not at
all sure it does now.
Copyright is an appropriate mechanism for protecting computer programs, not
patent rights. But nobody bothers nowadays, since patents are a bigger club
to thrash your competitors with.
Funny you should mention it, though; the doorbell I mentioned facetiously
is, in fact, a one-click method that sets into motion a very complex
sequence of stored program (wetware) events, determining if an occupant is
at home or otherwise available, and eliciting a response based on private
information known to the "doorbell" host, mediated by current information
gathered from the "doorbell" user through past and current interactions and
through optical, aural, or other means of recognition through a viewing or
listening device or portal, or prearranged signal, or other information
exchange mechanism, and selectively using accumulated knowledge to
determine the appropriate response. Phrased more-or-less in that way, I
have no doubt that one could have a jolly good try at patenting doorbells
if no one at the Patent Office happened to notice the joke. Which I
sincerely doubt they would, given their history.
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