*BSD News Article 5666


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From: brnstnd@nyu.edu (D. J. Bernstein)
Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi,comp.unix.bsd
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Message-ID: <16862.Sep2705.07.5792@virtualnews.nyu.edu>
Date: 27 Sep 92 05:07:57 GMT
References: <1992Sep24.140807.20755@rwwa.COM> <1992Sep25.185314.8872@gvl.unisys.com> <1992Sep26.161204.24573@rwwa.COM>
Organization: IR
Lines: 32

In article <1992Sep26.161204.24573@rwwa.COM> witr@rwwa.com writes:
> It seems to me that to claim that patents *should not* apply to software
> involves some claim that software doesn't deserve protection as
> intellectual property.

Software is protected by copyright.

There is good reason to believe that ``process,'' within the context of
patent law, means solely ``physical process.'' According to the courts,
mental processes are not patentable; laws of nature and mathematical
algorithms, even when applied to particular fields of technology, are
not patentable; business methods are not patentable. The Supreme Court
has not yet ruled on what are usually called ``software patents.''

My favorite argument that mental processes *should not* be patentable is
that there is no way to tell when two mental processes are the same.
Indeed, the Patent Office has often failed to detect that the subject of
a mental process patent is the same as a process in the prior art, or a
mathematical algorithm, or even a previous patent.

Other people have other arguments that algorithms and software *should
not* be patentable. None of them are based on the claim that software is
always obvious (or old).

> If something like patents
> are not available to software writers then the only avaliable protection
> (unless you eliminate property rights en-toto) is secrecy.

Protection is not the purpose of intellectual property law! Read
prep.ai.mit.edu:pub/lpf/laf-fallacies.texi.

---Dan