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Re: libdts patent issue?

On 7/19/05, Arnoud Engelfriet <galactus@stack.nl> wrote:
> Nathanael Nerode wrote:
> > Unfortunately, that's a distinction without a difference.  If you're
> > prohibited from making a computer program implementing the algorithm, you're
> > prohibited from writing a formal description of the algorithm, which is a
> > standard textbook technique.  (A computer program *is* a formal description
> > of an algorithm.)  If you're prohibited from selling such a program, you're
> > prohibited from selling such a textbook.
> No, you're not. The textbook is not the same thing as a computer
> program in machine-readable form. This is the same as with those
> crypto algorithms that can't (couldn't) be exported as .c files
> but could be exported as printed pages.

If you're talking about the Bernstein v. United States and Junger v.
Daley cases, the export authorities made this bogus distinction but
the courts (the appellate courts, anyway) did not.

> > The use prohibition is at least different: if only the use prohibition were
> > present, you could indeed publish a textbook, but nobody would be allowed to
> > use its techniques without a license.
> That's basically how patent law works in every area. You can
> publish the knowledge but not apply the knowledge to make, use
> or sell a working device or actual product. And a book that
> humans can read is not a product in patent law.

Still a bogus distinction.  If the book says, "scan me and use me as
an implementation, screw the patent holder", I see no reason which it
wouldn't be every bit as infringing as a machine sold to end users in
build-it-yourself kit form.  When such a kit is sold to OEMs by a DVD
chipset vendor, they make it very clear what patents they believe OEMs
need to license in order to market the result.

> > According to this "distinction", we could distribute Debian
> > as a "computing textbook" rather than as a "system", and we would then be
> > exempt from these patent considerations.
> I think it actually has to _be_ a textbook before you can call
> it a textbook.

It at least has to have substantial non-infringing uses in its
character as a textbook.  How much leeway this buys you with respect
to a textbook that doubles as an infringing implementation depends on
how the judge views your surrounding conduct.

> > (The current US rule is that that every such patent is for a "program plus a
> > generic computer", so this should actually work.
> Right, although there's lots of legal concepts like contributory
> or vicarious infringement that could come into play. But I don't
> see how distributing a .c file can be held a direct infringement
> of a patent on a "computer equipped with code for performing X".

AFAICT this is not correct under your law or ours; statutes and
rulings that protect "staples of commerce" and components with
substantial non-infringing uses would not protect a "just add water
(solder, computer)" kit.  Whether this goes by the name of
"contributory" or "vicarious" instead of "direct" infringement makes
little or no difference.

> > A deterministic algorithm which takes one bit sequence as input and produces
> > another as output is a piece of pure mathematics.  And that is *exactly* the
> > sort of thing which is being patented under the name of "software patents".
> To me the distinction is clear: you have to add something to the
> algorithm before you arrive at patentable matter. You apparently
> consider the addition (a computing device with a memory) to be
> irrelevant, and hence you don't see a distinction.

The addition of generic computing means is irrelevant as I understand
it.  You of course are more qualified than I, but I find it hard to
believe unless you can show me that judges care about that
distinction.  As I understand it, what has to be added is an
application to a field of endeavor in which it constitutes a practical

> > The IEEE magazine (Spectrum) had an article about this recently, which made
> > much the same point: you cannot make a valid distinction of this sort.  It
> > went into some detail on why various "distinctions" used by the US courts are
> > hopeless and illusory.  The current US excuse is that any mathematical
> > algorithm "plus a generic computer" is patentable.  Is that what's being used
> > in Europe too?
> The European standard is that the claim must cover a piece of
> technology: a device or method that exhibits a "technical effect".
> And no, I don't have a definition for "technical".

In the US, it's part of what the courts have read into 35 USC 101's
"new and useful process, machine, manufacture, or composition of
matter".  Even a "process" has to be "useful" for a particular
industrial or commercial purpose in order to be patentable.  Again,
see In re Alappat.

> In Europe we look at this effect to determine if it's patentable.
> The question whether it's an algorithm or software is largely
> irrelevant. You could build dedicated hardware that performs
> the algorithm instead of software. If the end result is something
> "technical", then it's patentable.
> Perhaps this is more sensible to you than the US approach?

That is (part of) the US approach, as embodied in decisions like AT&T v. Excel.

> > There's a reason the FFII preferred standard is that the inventive part of a
> > patent must be on some method of manipulating the physical world.  That's the
> That's what European patent law also pretends to be. FFII is pushing
> a very restrictive definition of what "manipulating the physical
> world" means, but otherwise they're completely in line with how
> patent law works.

Don't get hung up on the "physical world" part; for us strict
materialists, thoughts and bits are every bit as much "physical" as
tables and chairs.  A "concrete, tangible, useful result" is
identifiable not by "tangibility" in the literal sense but by its
applicability to a practical sphere of endeavor.  This is again the
same in the US, even under the State Street standard said to have
authorized the patenting of business models.  (It didn't really
"authorize" them; it told the USPTO to stop behaving as if they had
some legal basis for treating them as a separate category rather than
applying the same standards to them as to any other subject matter.) 
Recommended prices sitting on a computer hard drive don't qualify as a
"tangible result", but actually trading at those prices does.

> > I guess "the mathematics is public domain, but any use of it is patented"?
> More like, the expression in .obj is patented, but the expression
> in .PDF is not. Feel free to publish papers; don't distribute
> devices that execute the algorithm disclosed in those papers.

Not in principle; but it may reasonably be inferred from industry
practice that a distribution in .obj is intended for use in a product
and a distribution in .PDF is intended for the edification of the
reader.  Judges can and do assess the degree of intention to infringe
on the distributor's part.

> > Again, the grounds should be that it's a *mathematical method*.  The "method"
> > or "process" in such a patent is in fact a *mathematical* method.  You get
> > mathematicians specializing in fields like theory of computation to testify
> > to that.  The inventive step is solely in the new mathematical method (not in
> > the generic computer).
> The problem is exactly the same: European patent law does not
> exclude patents on mathematical methods, but only on mathematical
> methods _as such_. Apparently this is not the same thing for the
> people who wrote that law. They may have been wrong, but if this
> is the law, then that's what we have to work with.

Can you point me to an appellate decision that speaks to this
distinction, even if that isn't dispositive under your system?

> But again, you have to show a relation to the physical world.
> In Europe, it has to be technology, or it's not patentable.

A system that didn't make that distinction somehow would indeed be
unmanageable and unjust.  In the human world, the sane way to make
this distinction is not "matter vs. information", it's
"commercial/industrial application vs. the reader's edification".  And
I have yet to read much evidence drawn from the primary literature
that either the US or the European system doesn't do it the sane way.

- Michael

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