Return to BSD News archive
Xref: sserve comp.org.eff.talk:9208 misc.int-property:551 comp.unix.bsd:5849 Path: sserve!manuel!munnari.oz.au!sgiblab!sdd.hp.com!caen!uwm.edu!linac!att!ucbvax!virtualnews.nyu.edu!brnstnd 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: <10880.Sep3008.43.0892@virtualnews.nyu.edu> Date: 30 Sep 92 08:43:08 GMT References: <1992Sep25.185314.8872@gvl.unisys.com> <1992Sep26.161204.24573@rwwa.COM> <BvBp1v.16J@lerami.lerctr.org> Organization: IR Lines: 57 If I show you two physical processes you can easily tell whether they're the same. They achieve the same physical result---moving things around, changing one chemical into another, whatever---in the same way. Patent law is founded upon the principle that you can tell when two processes are the same. The USPTO has to be able to tell in order to grant a patent. The courts have to be able to tell in order to determine infringement. (Does ``same'' mean ``exactly the same''? No. It means, according to the courts, the same up to ``colorable changes,'' or ``inessential modifications.'' Yes, this is subjective. ``Same''---the legal word here is ``equivalent''---is a matter of consensus among normal people. Almost all legal terms are like this.) If I show you two mental processes you won't have a clue whether they're the same. If you're very lucky then the two processes will be expressed in the same way. But what if one process is my Algorithm W and the other is the subject of the Miller-Wegman patent? Yes, they happen to be exactly the same process, but Algorithm W is a whole bunch of mathematical gobbledygook while the Miller-Wegman patent talks about storage devices and strings. There are no objects being moved around, no chemicals being transformed into other chemicals, no creation, no destruction, _nothing_ which you can use to test whether two mental processes do the same thing. The same remains true even if you attach ``insignificant post-solution activity'' (that's another legal term, despite Scott's claims to the contrary) to a mental process. If the physical applications of two mental processes are essential (curing rubber, developing film) then you can see whether they do the same thing. If the physical applications are inessential (writing bits to disk, or tape, or memory, or your head, or reading data from a similar place) then this test disappears. This is the fundamental problem with mental process patents. I don't mean to imply that the XOR cursor patent---which doesn't suffer this particular problem---is fine; I find that patent shockingly far from any sane standards of unobviousness and originality. But mental processes are inherently unpatentable. You simply cannot tell when two of them are the same. In article <BvBp1v.16J@lerami.lerctr.org> merlin@lerami.lerctr.org (David Hayes) writes: > Yet, unless *someone* > publishes the technique, the PTO will never have any documented case of > prior art on which to rule. Unfortunately, even if the PTO had a perfect prior art database, the fundamental problem of mental process patents would still exist. Witness LZW versus MW. MW was prior art for LZW. Yet LZW was granted a patent. Not only was MW published: it was sent to the USPTO! The USPTO had two equivalent patents under its nose and granted _both_. How would it have helped if the USPTO examiners knew every iota of prior art? They wouldn't be able to tell which prior art applies to the patent at hand! If you can't reliably detect the equivalence of mental processes, then you certainly can't search the prior art for anything equivalent to the process at hand. ---Dan