3.46 software patents (147)

Thu, 18 May 89 20:47:13 EDT

Humanist Discussion Group, Vol. 3, No. 46. Thursday, 18 May 1989.

Date: Thu, 18 May 89 20:17 EDT
From: Peter D. Junger <JUNGER@CWRU>
Subject: Problems with Software Patents

In the New York Times for Friday, May 12, 1989, there is a first
page article by Lawrence M. Fisher entitled "Software Industry in Uproar
Over Recent Rush of Patents" that may be of interest to many Humanists. I
am, therefore, going to quote some of the 'juicier' passages.

Suppose someone were granted a patent for the opening four notes of
Beethoven's Fifth Symphony. Any composer who used that short sequence
of notes would probably have to pay a royalty, and the music world
would be in turmoil.

But that is roughly what is going on in the world of computer
software, and many people who write programs, or sequences of
instructions that tell computers what to do, are in an uproar. They
fear that their creative freedom is about to be stifled and that
technological innovation using computers will suffer.

The concern is over a recent rash of new patents and patent
applications for some basic programs that are fixtures in the world of
computers. These programs have been widely regarded as being in the
public domain, just as a sequence of a few musical notes is public

But fear is mounting among software companies and programmers that
the patents are about to start a flood of lawsuits that will maintain
that many current programs have violated patents held by others.


The problem is best illustrated by a common feature found in many
personal computer programs: the ability to display several documents at
once, with each tucked into its own corner of the computer screen. In
the lexicon of programmers, each document appears in a ''window'' on
the screen, and the technique of creating them is known as

Most programmers believe that writing a program so that it displays
data in windows is so common a technique that it belongs to everyone.

But last month Quarterdeck Office Systems, a tiny software company
in Santa Monica, Calif., received a patent for its technology that
allows a computer to run several programs so that they appear
simultaneously on a computer screen using windows. While the extent of
the patent's relevance to other windowing programs is unclear, one
analyst said it had the potential to "shatter the industry."

[Quarterdeck is the "publisher" of Desqview, which may well be the best
windows program for the IBM PC and compatibles, including the newer 286
and 386 machines. Even if the patent does not apply to all windowing
programs, it might still be infringed by Microsoft's Windows and
perhaps all those word processors that we are so fond of, like
Notabene, that have windowing systems. But this is pure speculation.

In another case, Paul Heckel, a software developer in Los Altos,
Calif., received a patent last year that could have an impact on many
of the people who use the popular computers manufactured by Apple
Computer Inc. The company has a program called Hypercard that is used
to store and manage data. The data are displayed on the screen as if
they appeared on overlapping file cards.

Mr. Heckel contends that anyone using Hypercard is infringing his
patent. Rather than take on Apple in the courts, though, he has started
advertising and sending press releases asking Hypercard developers and
users to adopt his standards - and buy a copy of his program for $100.


Software producers have traditionally depended on copyrights to
protect their intellectual property, just as authors or composers do.
But patents are a stronger, broader protection, which can apply to
ideas rather than the specific expressions of those ideas covered by


Although there has been little litigation of software patents yet,
lawyers expect an onslaught of suits that could dwarf the copyright
disputes now being heard between software companies....


Because patent applications are confidential, pending applications
represent a hidden threat to software developers.

No patents were issued on software before 1980, when the Supreme
Court ruled that the use of a computer program did not prevent
patenting a process. [Actually the date was 1981; the case was Diamond
v. Diehr, 450 U.S. 175 (1981). PDJ] Since all software is part of a
process run on a machine, nearly any program or some portion of it is
patentable, lawyers say.


It is as if ''you could patent four musical notes in a row,'' said
Pete Petersen, executive vice president of the Wordperfect Corporation
in Orem, Utah. ''You would then force every composer to look up every
four-note combination to make sure the piece didn't infringe.'' Because
the software industry builds on existing ideas, ''there is no way
around certain things; you're stuck, forced to infringe,'' Mr. Petersen

Wordperfect itself, meanwhile, is applying for patents on its
software as a defensive move. The company gets one letter a month from
patent holders who say they have been infringed, and it anticipates
more. ''We're going to apply for patents; we're going to have our
satchel full so we have something to bargain with when somebody gives
us a hard time,'' Mr. Petersen said. ''We don't see any way around


[L]awyers say it will be the patents that do not come up in
searches that will cause problems. Obtaining a software patent
typically takes nearly three years, during which time there is no
published information.


If this trend continues, there may be great difficulty in obtaining
scholarly--that is, unprofitable--software. The larger companies will not
be interested in producing it, but, if you write it yourself, you may be
sued for patent violation. One would hope that the patent holders would
simply ignore such minor patent violations, but the trouble is that many of
these patents may be invalid. In such cases it is in the interest of the
patent holders to go after the little guys, who cannot protect themselves,
in order to build up their patents creditability.

And lots of us will be unhappy if we can't use Windows on 80x86
machines or Hypercard [or its public domain variants on Macintoshes.

I hope that Lawrence M. Fisher and I are overreacting to these

Peter D. Junger--CWRU Law School--Cleveland, OH--bitnet: JUNGER@CWRU