Re: Current status of RSA patent... (fwd)

[attila <attila@primenet.com>]

Addressed to: Paul S. Penrod <furballs@netcom.com>
              Cypherpunks <cypherpunks@toad.com>

** Reply to note from Paul S. Penrod <furballs@netcom.com> 06/19/96 10:14am -0700
  
        I think most of the basics were covered in the list response, 
    except each had a piece or two to say, part of which was usually
    incorrect, and none caught the scope of the issue in its fullness.
 
        Until a patent is sucessfully challenged _and_ "destroyed," it 
    is resumed valid in the country of issue, regardless of the
    source of a competing product which may have been manufactured in a
    country where patents mean little, if anything.  --e.g.  any
    country other than the U.S., Canada, and Western Europe.
 
        GOOD patents, with claims which are both narrow enough to 
    define what is patentable and broad enough to cover "work-arounds,"
    are expensive to obtain:  >$10,000 domestic plus foreign costs. 
    there are arcane rules as to the time of filing for foreign patents
    if they are to be valid, often requiring separate efforts, and
    different claims, in each jurisdiction.
 
        smaller companies are obviously at a disadvantage since 
    resources, particularly in development houses, are small. 
    development companies tend to recover their expenses with immediate
    product (much smarter than waiting for the patent office to declare
    you King Kong) thereby also avoiding being beaten in the market
    window by an also-ran product.
 
        An alternative theory is to pray that a Fortune 100 releases 
    product which violates your patents.  Caveat:  it is still your
    responsibility to "protect" your product and not lose your rights
    by default. This is expensive and further requires that you reduce
    your theory to practice -- you do reduce the theory to practice,
    you are in a very weak position --again, unless you are IBM, AT&T,
    etc.  who practice law by intimidation and burying the opposition
    in excessive and frivolous paperwork.
 
        Then there is the problem of the capital required to litigate 
    an interloper.  When I attempted to litigate the Fortune #1 company
    10 years ago --the MINIMUM advance fee requested by every lawyer
    (even ones I have previously consider fiends) was $2 MILLION; 
    which, although still less than the contractual royalty claim, was
    not exactly in my bank account!  --and, the greedy bastards also
    wanted 10-15 years to collect and 33-50% of the recovery plus 
    expenses.
 
        So, I litigated the claim myself (9 months), and won in Federal 
    District Court. I was lucky, with a never-used-in-the-US law
    degree; the five other companies in the same bag received nothing
    on their claims:  they could not afford the legal expenses.  I did
    not like lawyers as a breed prior to this incident, and I like them
    significantly less now. we will not discuss the issue of respect or
    their value as a food substitute (really.., they taste just like
    chicken).
 
        patents are further cluttered by the fact it averages 3 years 
    to obtain a patent, and technology moves far too fast.  then, even 
    with fundamental patents such as RSA is holding one of, there are
    the legal challenges as to both the validity and whether or not it
    expresses claims which are both original and non-obvious.
    
        non-obvious is a key factor --you can not patent the "fact:" 
    "a chunk of sodium tossed into a toilet ball often destroys the
    toilet...."
 
        lastly, particulary in software, there is the challenge: 
    "...all knowledge should be _free_!"  Well, that is fine and good,
    but how do you pay researchers?  have them pump gas all week and 
    donate research time on the weekends?  very few researchers have
    the piece of mind to be creative when their children are starving. 
    --oh, well, we still have the unmarried nerds who require only 
    space to sleep (standing up), BigMacs and chips....
 
        from my perspective, the patent system is absurd --not because 
    of the protection it purports to provide, but that it is 

        a)  ridiculously slow and arcane, dominated by how a lawyer 
            who has no clue, writes _claims_, in words, defining what 
            is unique; and 

        b)  it is insufficient to deal with _intellectual_ property
            rights which can not always be reduced to a simple
            mechanical/hydraulic drawing and some words _claiming_ its
            uniqueness.  

        The real rub in patents is that _words_, not the technical
    definitions and diagrams, or even the "experts" in trial, that wins 
    patent litigation.  The circuit diagram or the mathematical 
    equation is noting more than a sidebar note. Therefore, patents 
    have become a weapon, a weapon of the established to intimidate the
    new kid on the block.
 
        what are the chances for meaningful patent reform?  slim to 
    none. why?  it will offend the lawyers, and their $10,000 words!

        any of you have been involved in patent litigation must realize
    the absurdity of a Federal jury deciding the validity of high-tech 
    patents.

        and, if you, the developer, take the product to market, you run
    the risk of a major company patenting _your_ idea and litigating 
    you!  but "I have prior art you scream!" --yes, and they will have 
    notebooks with a paper trail and you will have none. what does the 
    legal system require? paper trail.

        personally, I think RSA has been most generous in their 
    licensing: a personal use license of the basic algorithm is free. 
    How do you suppose PGP really exists?  it's free!  RSA has done 
    more to advance cryptography with this policy than any other in many
    years.  the political and public relations benefits to our rights 
    to cryptography and the public relations bonanza for public 
    awareness is not even estimable, let alone measurable.  The Federal
    persecution of Phil Zimmerman was a PR bonanza and a rallying cry.

        on the other hand, the Free Software group, despite the 
    tremendous value to those of us who develop, does nothing to
    protect our basic freedoms, and place the issue before the U.S. 
    (and world) forum.                                                   
    
        whether or not we like like RSA's "charismatic" leader, 
    give credit where credit is due.  if you are creating a commercial 
    product, you pay royalties. 

        remember, patents and patent royalties are a trade-off in the 
    system.  would you not expect royalties for your patent? I know I 
    do; have collected many; and, hope to be able to continue to 
    collect same, despite by dislike of the current U.S. Patent Office.

        that's all, folks!
        



--
Fuck off, Uncle Sam. Cyberspace is where democracy lives!