Software patents

[paul@poboy.b17c.ingr.com (Paul Robichaux)]

I want to bring this up in the context of the PGP vs PKP thread from a
while back. I am personally interested, since my cryptophone software
could conceivable infringe on several varied patents simply by using
excerpted code from PGP.

Background: the Association for Computing Machinery is the computer
science equivalent of the ABA or the AMA.  They are in the process of
revising their code of ethics for ACM members.

Several lumiaries (Guy L. Steele, Jr., Danny Hillis, Richard Stallman,
Gerald J. Sussman, Marvin Minsky, John McCarthy, John Backus, and
Fernando J. Corbato) wrote a letter objecting to the new clause. I
have excerpted Turing Award winner, 1990

The original was posted to gnu.misc.discuss by jhawk@panix.com (John
Hawkinson); he had RMS' permission, but I am reposting here without
permission. Comments in {} are mine.

begin included text

The ACM recently adopted a "moral imperative" for its members to
"Honor property rights including copyrights and patents."  This is
clause 1.5 of a new ethics code for ACM members, adopted in October
1992.

...

ACM surveys suggest that most ACM members disapprove of having
patents in software at all; yet the ACM moral imperative calls on
members to honor what they may regard as a disaster for their field.

[... spirit vs. letter of law ...]

But the word "honor" has other implications.  The spirit and practical
effect of the ACM code is to endorse the current intellectual property
system and discourage independent judgement about it.  This directly
opposes the views of many, perhaps most, ACM members.

Not only that; it also distorts the patent system, by telling people
not to exercise their rights in the system.  After all, what does it
mean to "honor" a patent?

Whether a particular patent is valid and applicable is always an open
question until decided by a court case.  And it is never a crime to
infringe a patent.  If you think a patent is invalid, the legal system
encourages you to disregard it; if you are not sued, then your actions
are legitimate.  If you are sued, then you are welcome to fight the
case and see if you can overturn the patent.  (This is so expensive
that the possibility is purely theoretical for most of us, and it
cannot solve more than a tiny fraction of the software patent problem,
but some of the readers may work for companies that can afford to do
so occasionally.)

If you can do all that and still be "honoring" the patent, then
"honoring" is an empty requirement which there is no way to violate.
The reader is likely to dismiss this interpretation, based on the
heuristic that every clause in the ACM code must have some practical
import or it would have been deleted.

If "honoring" a patent does not permit challenging it in that way,
then the ACM is directing its members to treat all patents as valid
and not exercise their legal right to challenge patents!

[... remainder deleted ...]

Now, IANAL, but the preceding is new to me. By the argument presented
above PGP is legal w.r.t. patent infringment. Infringement is _not_ an
unlawful act, and the question of whether or not PGP is infringing can
only be settled by a court encounter between PKP and someone else.

Theoretically, then, we are all safe unless PKP decides to take us
individually to court. We are likewise safe should any of us-
collectively or individually- write, distribute, or aid/abet thereof
any code which might potentially infringe a patent.

Sounds like innocent until proven guilty. Sounds like Schnorr and
digital cash are fair game.

-Paul
 "quote me"
-- 
Paul Robichaux, KD4JZG     | "Change the world for a better tomorrow. But
perobich@ingr.com          |  watch your ass today." - aaron@halcyon.com
Intergraph Federal Systems | Be a cryptography user- ask me how.