West Coast Online Magazine - issue 22 - page 11

Against Software Patents

(An editorial by the League for Programming Freedom)

The patent system was intended as an incentive for inventors to develop, market, and share their inventions with the public. A patent grants the inventor at least a 17-year monopoly on the rights to use an invention. Patents do not cover words or pictures. Instead, they cover unique techniques, ideas, or features, used to build systems. Once a technique, idea, or feature is patented, it may not be used in a system without the permission of the patent-holder, even if implemented differently.

Software patents threaten to devastate America's computer industry. New companies could be barred from entering the software arena by the established software applications with their encumbering patents. This problem has only one solution: software patents must be eliminated.

Ten years ago, programmers could write programs using all known techniques and providing whatever features they felt were useful. Today, this is no longer true. New monopolies, built upon software patents and interface copyrights, have taken away programmers' freedom of expression and severely limited the tools available.

"Look and feel" lawsuits seek to monopolize well-known user interfaces. Copyrights enforce gratuitous incompatibility, shut the door on competition, and stifle incremental improvements to existing applications. Software patents make application development even more dangerous, with each design decision carrying the possibility of a lawsuit backed by the threat of pretrial seizure of the source code in question. It is difficult and expensive to know if the techniques utilized are or will be patented as the product comes to market.

Patents and Computer Programs

Recently, patents have been granted on computer software. Developers used to copyright applications to protect their trade secrets. Copyrights only cover words or pictures. They do not cover implementation details, concepts, or general methods used to create a particular program.

Copyright protection of software benefited application development because authors were free to expand upon ideas and concepts. In the early 1980's a change in U.S. policy stimulated a flood of software patent applications. Now, many have been approved, with more on the way. Because a computer application uses many techniques and provides many features, it can infringe upon many patents at once. The flood of lawsuits are just beginning, catching many programmers unaware.

Legally questionable roots

Extending patent law to software is legally questionable, resting on an extreme interpretation of the 1981 Supreme Court decision, Diamond vs. Deihr. (Described in "Legally Speaking" in Communications of the ACM, www.acm.org August 1990.)

Traditionally, the "subject matter" doctrine guided patent policy. Patents were granted only to processes that transform matter (such as steelmaking). Many other processes, including business methods, data analysis, and "mental steps", were excluded from patent protection entirely.

Although the Supreme Court did not explicitly reject it, the Patent Office has interpreted Diamond vs. Deihr as a reversal of the subject matter doctrine. The case concerned a process for curing rubber - a transformation of matter. The issue was whether the use of a computer program in the process was enough to render it unpatentable, and the court ruled that it was not. The Patent Office interprets this narrow decision as a green light to patent software techniques without limit.

Absurd Patents

Patent applications are denied if the submitted technique is widely-known or obvious. Patent examiners, the Patent Office, and the courts, have a difficult time with computer software. Computer scientists know many techniques can be generalized to widely varying circumstances, but the Patent Office believes each separate use of a technique is a candidate for a new patent.

For example, Apple was sued because the Hypercard program allegedly violates patent 4,736,308, which covered scrolling with multiple subwindows (displaying portions of two or more strings together on the screen). Scrolling and subwindows are well-known techniques, but combining them is now apparently illegal.

X-OR patented?

In the programming world, the technique of using exclusive-or to write a cursor onto a computer display is obvious and well-known. The advantage is that another identical exclusive-or operation can be used to erase the cursor without damaging other data on the screen.

This technique can be implemented in a few lines of code, and a clever high school student might well reinvent it. But one method of using X-OR to update a screen is covered by patent 4,197,590, and has been upheld twice in court even though the technique was used at least five years before the patent application. Cadtrak, the company that owns this patent, collects millions of dollars from large computer manufacturers.

Nothing protects programmers from accidentally using a technique that is patented. The cost of patent searches for each coding technique is prohibitive. Even taking an existing program and making it run faster may violate half a dozen patents that have been granted, or will soon be granted.

Computer programming is fundamentally different from the other patent protected processes. Even if the Patent Office understood software better, the mistakes it is now making will follow us into the next century, unless Congress or the Supreme Court intervenes to declare all such patents void.

What is "Obvious"?

The Patent Office will not grant or uphold patents judged to be obvious, a standard developed in other fields. For some reason, this test is not always applied to software. It is possible to patent techniques so obvious that no one would have thought necessary to document.

Patent examiners and judges are accustomed to granting patents to even small, incremental process changes. For example, the famous Polaroid vs. Kodak case hinged on differences in the number and order of layers of chemicals in a film - differences between the technique Kodak was using and those described by previous, expired patents. The court ruled these differences were not obvious.

Why software is different

Software processes are much easier than other processes to design. For example, two programmers might develop 50,000 lines of code over a year to complete a project. The total cost of overhead and equipment could be less than $100,000. By contrast, designing an automobile requires a large team and costs tens of millions of dollars.

Compared to complex hardware systems, software is much cheaper to manufacture. Software can be copied on an ordinary workstation, costing a few thousand dollars. Complex hardware systems may require a factory, costing millions of dollars.

A large software application can have as many component "parts" as an automobile. Programs cost substantially less to write, market, and sell, than automobiles. However, the cost of dealing with the patent system will not be less. The same number of components will, on the average, involve the same number techniques that might be patented.

The Danger of a Lawsuit

Under the current patent system, software developers must determine which patents an application could violate and negotiate with each patent holder a license to use that process. Licensing may be prohibitively expensive, or even unavailable if the patent is held by a competitor. Even "reasonable" license fees for several patents can add up to make a project unprofitable. Alternately, the developer may wish to avoid using the patent altogether; but there may be no way around it.

The worst danger is the developer might find, that after releasing a product, it infringes one or more patents. The resulting lawsuit and legal fees could force even a medium-size company out of business. There is no practical way for a software developer to avoid this danger. There is no economical way to conduct a search of all patents that may apply.

Patent Searches

A system with a hundred thousand components can use hundreds of patented techniques. Each patent search costs thousands of dollars. Searching for all the possible points of danger could easily cost millions. Far more than the cost of writing the program.

Patent applications are written by lawyers for lawyers. A programmer reading a patent may not believe his program violates a patent, but a federal court may rule otherwise. It has become necessary to include patent attorneys at every phase of program development. Even this precaution merely reduces the risk of being sued later. Individual and small developers cannot afford such costs. Software patents could put an end to software entrepreneurs.

Even if developers could afford patent searches, these are not a reliable method of avoiding the use of patented techniques. Patent searches do not reveal pending patent applications (which are kept confidential by the Patent Office). Since it takes several years on the average for a software patent to be granted, a developer could release an application before the patent is approved. Only later will the developer learn that distribution of his or her application is prohibited.

Obscure Patents

When you imagine an invention, you probably think of something that could be described in a few words, such as "a flying machine with fixed, curved wings" or "an electrical communicator with a microphone and a speaker". But many patents cover process details with no simple descriptions - often they are variants and improvements of well-known complex processes. Rather than being obvious or brilliant, most patents are obscure. It is common for a software engineer to "invent" several improvements in the course of a project.

Patents are also granted on combinations of techniques that are already widely used. One example is IBM patent 4,742,450, which covers "shared copy-on-write segments." This technique allows several programs to share the same piece of memory to represent information in a file. If any program writes a memory page to a file, the contents of that page is copied to all programs. The memory is shared between programs, but no longer shared with the file. Shared segments and copy-on-write techniques have been used since the 1960's. Nevertheless, the Patent Office thought that it merited a patent, which must now be taken into account by the developer of any new operating system.

Patent Licensing Problems

Most large software companies try to solve the problem of patents by getting patents of their own. The strategy is to cross-license with the other large companies that own most of the patents, so they will be free to go on as before.

While this approach will allow companies like Microsoft, Apple, and IBM to continue in business, it will shut new companies out of the field. A future start-up, with no patents of its own, will be forced to pay whatever price the giants choose to impose. That price might be high since established companies have an interest in excluding future competitors.

The Fundamental Question

Patents were intended to "promote the progress of science and the useful arts." Thus, the basic question is whether software patents, supposedly a method of encouraging software progress, will accomplish this goal, or will they instead retard progress. Software patents provide little benefit to society because software inventions were flourishing long before software patents. Formerly, software inventions were published in journals for everyone to use.

A patent is an absolute monopoly; everyone is forbidden to use the patented process, even those who reinvent it independently. The patent policy implicitly assumes that inventions are rare and precious, since only in those circumstances would they be beneficial.

In software, independent re-invention is commonplace. The prevalence of independent reinvention negates the usual purpose of patents. The idea of software patents is an example of the mistaken American preoccupation with inventions rather than products. And patents will encourage this mistaken focus, even as they impede the development work that actually produces better software.

By reducing the number of programmers engaged in software development, software patents impede innovation. Much software innovation comes from programmers solving problems while developing software, not from projects whose specific purpose is to make inventions and obtain patents. In other words, these innovations are byproducts of software development. Software patents make development more difficult, cut down on development projects, and cut down on the byproducts of development - new techniques.

Could Patents ever be Beneficial?

Although software patents in general are harmful to society as a whole, not every software patent is necessarily harmful. Careful study might show that under certain specific and narrow conditions (necessarily excluding the vast majority of cases) it is beneficial to grant software patents.

Clearly software patents are not urgently needed by anyone except patent lawyers. The pre-patent software industry had no problem that was solved by patents; there was no shortage of invention, and no shortage of investment. We think the right thing to do now is to eliminate all software patents as soon as possible, before more damage is done. The careful study can come afterward.

One way to eliminate Software Patents

We recommend the passage of a law to exclude software from the domain of patents. That is to say that, no matter what patents might exist, they would not cover implementations in software; only implementations in the form of hard-to-design hardware would be covered. An advantage of this method is that it would not be necessary to classify patent applications into hardware and software when examining them.

Many have asked how to define software for this purpose - where the line should be drawn. For the purpose of this legislation, software should be defined by the characteristics that make software patents especially harmful:

All software requires a hardware platform to run. The software operates the features of the hardware in some combination, under a plan. Our proposal is that combining the features in this way can never create infringement. If the hardware alone does not infringe a patent, then using it in a particular fashion under control of a program should not infringe either. In effect, a program is an extension of the programmer's mind, acting as a proxy for the programmer to control the hardware.

What you can do

One way to help eliminate software patents is to join the League for Programming Freedom. The League is a grass-roots organization of programmers and users opposing software patents and interface copyrights. (The League is not opposed to copyright on individual programs.)

Annual dues for individual members are $42 for employed professionals, $10.50 for students, and $21 for others. We appreciate activists, but members who cannot contribute their time are also welcome. To contact the League, voice phone (617) 243-4091, send Internet mail to lpf@uunet.uu.net, or write to:

League for Programming Freedom
1 Kendall Square # 143
PO Box 9171
Cambridge, MA 02139

In the United States, another way to help is to write to Congress. You can write to your own representatives, but it may be even more effective to write to the subcommittees that consider such issues:

House Subcommittee on Intellectual Property
2137 Rayburn Bldg
Washington, DC 20515

Senate Subcommittee on Patents, Trademarks and Copyrights
United States Senate
Washington, DC 20510.

You can phone your representatives at (202) 225-3121, or write to them using the following addresses:

Senator So and So
United States Senate
Washington, DC 20510

Representative Such and Such
House of Representatives
Washington, DC 20515


Exempting software from the scope of patents will protect software developers from the insupportable cost of patent searches, the wasteful struggle to find a way clear of known patents, and the unavoidable danger of lawsuits.

If nothing is changed, what is now an efficient creative activity will become prohibitively expensive. To picture the effects, imagine if each square of pavement on the sidewalk had an owner, and pedestrians required a license to step on it. Imagine the negotiations necessary to walk an entire block under this system. That is what writing a program will be like if software patents continue. The sparks of creativity and individualism that have driven the computer revolution will be snuffed out.

Editor's Note: This article was edited for our publication. The original text, and other texts on related subjects, are available from their web page at www.lpf.org.

Page 12 had ads for IBBS West and the Association of Online Professionals (www.aop.org).

Pages 13, 14, 15, and 16 had full-page ads for Just Computers! (www.justcomp.com).

FYI: Wireless Data

(By Jesus Monroy, Jr.)

Street Talk:

OverNet Online, an Internet newsfeed, provides daily news stories about the wireless industry. For those with Internet or modem access, OverNet Online is a cost-effective way to get the latest news on the wireless industry. A BBS is also available.

Satellite Times, a new magazine from the publishers of Monitoring Times, is now available at newsstands. The lead story in the charter issue was about the new DBS (Direct Broadcast Satellite) system from RCA. Before buying RCA's DBS, check with your dealer - not all 150 channels are available yet...

Mosaic Communications of Mountain View (the creator of the fantastic WWW browser/newsgroup reader program) is changing its name to Netscape Communications Corp. For now, their active Internet domain remains mcom.com. Netscape Communications: Voice (800) 638-7483.

Metricom has increased the performance of its wireless data network 30 percent. It now can operate up to 100Kbps.

Hayes Microcomputer Products, makers of both Hayes and Practical Peripheral brand modems has filed for Chapter 11 bankruptcy. CEO Dennis Hayes said the company has sought protection because of a short-term cash shortage.

The Simon, designed by IBM for BellSouth - winner of Popular Science magazine's 1994 "Best of What's New" awards, is available at local stores. Simon is the first fully integrated, handheld cellular phone, wireless facsimile machine (send/receive), pager, electronic mail, calendar, appointment scheduler, address book, calculator - and a pen-based note pad/sketch pad. For more information on this, call (800) SIMON SAYS.

The Newton 110 is shipping with modem, software and a carrying case for limited time for $599. A messaging card is available for a few hundred more - under a grand and you're tetherless! Check with the Newton Guru Rico at Totally Wireless in Palo Alto for details. His number is (415) 688-1890.

The Federal Communications Commission collected $489 million dollars by auctioning off regional paging licenses. Twenty-eight firms bid in the narrow-band airwave auction, which began Oct. 26. The licenses will be used for advanced wireless paging and messaging services.

$5 Billion U.S. dollars - in contracts for foreign loans - for development of telecommunications in China have been signed, according to a report from Posts and Telecommunications news. $2 Billion is expected to go to CDMA, Code Division Multiple Access - a digital technology for wireless communications.

By the year 2000, the market for wireless office equipment will reach $1.9 billion annually, according to Frost & Sullivan, a Silicon Valley research firm. The compound annual growth rate of this market is predicted to be 52.4%.

Current estimates are that $400 million per year are lost in fraudulent cellular transactions. Merit Security of Redwood City predicts that within the next two years, a major Silicon Valley corporation will lose a large amount of revenue due to a communication security breach.

The CDPD Game

CDPD (Cellular Digital Packet Data) is a response by the cell phone industry to provide secure cost-effective, nation-wide mobile data communications. Currently available in 11 metropolitan areas, CDPD became commercially available in the SF Bay Area on Oct. 10, 1994, the day before the First CDPD Software Developer's Conference. Their membership is quickly growing, and at this meeting, Rand Baldwin, a senior manager with Smith, Bucklin & Associates, Inc., was appointed permanent Executive Director.

CDPD uses the existing cellular infrastructure and allows users to access packet data, circuit-switched data, and voice through a single source. The 1.0 version of CDPD specification was published in July of 1993. Version 1.1 is expected in late January 1995.

CDPD technology breaks down messages (or data) into packets that are transmitted over idle (or dedicated) channels of existing cellular voice networks. The transmission speed is advertised at 19.2 Kbps, but effective throughput is about 14.4 Kbps, and in some cases, 9.6 Kbps.

CDPD is implemented with a variety of network data transmission methods. The first network type is for ESS7 systems. ESS7 systems are the backbone of the long distance communications industry. Usually, ESS7 connections terminate (have end points at) ISDN (Integrated Services Digital Network).

The second class of CDPD architectures are the OSI (Open Systems Interface) networking models. X.400 and X.500 implementations are currently in place. More importantly, CDPD also supports the method popular for Internet, TCP/IP.

Who is playing?

The original CDPD specifications were developed by a forum of leading cellular carriers, including AirTouch Cellular, Ameritech Cellular Services, Bell Atlantic Mobile, GTE Personal Communications Services, McCaw Cellular Communications, NYNEX Mobile Communications and Southwestern Bell Mobile Systems.

The primary goals of the CDPD forum are to evolve specifications, ensure seamless interoperability, and to encourage and support development of products and technology. CDPD membership is divided into five groups:

The Stakes

An indication of the seriousness of this market is the vast amount of money spent at the recent FCC narrow-band frequency auction for PCS (Personal Communications Services). The service providers hope to gain the majority of the wire-based market. GTE's recent flat-rate ($15) weekend-only service is a move toward this goal.

Currently, AMPS (Advanced Mobile Phone Service) is the dominant (20 million users around the world) analog-based cellular technology. It is expected to be overtaken by CDMA (Code Division Multiple Access), a new digital cellular technology. CDMA has the proven ability to add up to 10 times the capacity of AMPS. Using CDMA, many companies hope they have the leverage to take their products international.

The current infrastructure providers are reaping the biggest gains now, and will be for a few years - until CDPD hits full market penetration, which is not expected before the year 2000.

End-user equipment manufacturers are looking for broad market acceptance - the ability to sell at the local drug store? They should reach that goal in 1996 or early 1997. The downside is CDPD, like most industries, is expecting a "shakeout". More than likely, the first victims will come from this arena.

Systems Integrators, or VARs, will continue to grow well after the wireless boom is over. They, and the software and applications vendors, will undoubtedly find new ways to loosen the buck, electronic or greenback, as we shift into this new technology/society.

Perhaps the most vital CDPD groups is the Software and Applications Vendors, including Oracle, Sun Microsystems, General Magic, Intelligent Fleet Systems, and Wireless Connect. Like many technologies, CDPD implementation is behind schedule. To compensate, over the next three years the industry will spend about one billion dollars to complete the CDPD network. McCaw Cellular, already with mud on its face, will lead the industry in the deployment of CDPD networks.

PCS seems to be the goal of many CDPD forum members, but for now, they must deal with reality. Perhaps CDPD will be the major form of wireless data transmission in the next year or so. In the meantime, CDPD will prove to be the foundation for most of the upcoming wireless technologies, including applications like Interactive TV.

Next month we'll venture to the Foster City Holiday Inn, to learn about NTN and their Interactive Television, and why it may be a model for the future wireless world. See you on the Internet.

Page 17 had ads for the Olde Stuff BBS and Silicon Matchmaker (www.silicon.email.net).

Page 18 was a sign-up form for magazine subscriptions and Internet service.

StockQuoter 2

Advanced Wireless Communications, Inc. (AWC), has introduced StockQuoter 2, a 15-minute delayed wireless stock quotation and news subscription service for IBM-compatible computers virtually anywhere in the United States. StockQuoter 2 is the first of a number of wireless subscription services that will be introduced by the company in the near future.

AWC uses a proprietary technology to insert continually updated digital data in the Vertical Blanking Interval (VBI) of broadcast, satellite, and cable television channels. Digital data is placed in the hidden black line across the TV which separates the picture vertically and provides synchronization. This method of encoding data is similar to the way broadcasters use one of the 21 available VBI lines to carry closed-captioning for the hearing impaired.

AWC's data transmissions are based on Teletext technology, offered widely in Europe since the mid 1970s. Traditionally, VBI has been used to send information in a continuous loop over a TV signal, for situations where there was a need to send brief information to a large number of people.

By using existing television signals, AWC can offer low-cost subscriptions. The company's network includes C- band satellite uplinks: Shop At Home Network on the Galaxy 3 Satellite, Transponder 17; and Home Shopping Club 2 on Satellites F-3 and 4 (Satcom C3 and 4), Transponder 10. Subscribers receive the digital data through the use of AWC's receiver / decoder card and StockQuoter 2 application software. The decoder card plugs into a PC card slot.

The package includes software, hardware, and a user's manual. Installation requires a 386+ and either MSDOS 5.0+ or Windows 3.x. Installation takes minutes - insert the card into an unused slot of the PC, connect an antenna, and install the software. The antenna can be outdoor or indoor, cable, or a satellite dish. A toll-free line is available to answer questions or to assist in the installation process. The bundled software divides the computer screen into three windows: Quote, Portfolio, and News.

The Quote Window instantly accesses more than 15,000 stocks, mutual funds, money market funds, and real-time indices, by typing the symbol or name. Access is provided to these markets via a partnership with Standard & Poors ComStock. Personal filters can be set to view only those stocks within a certain price range, or with other user-defined parameters. If there is an item of news about a particular stock issue on the wire services (including Business Wire, the New York Times, and the London Financial Times wire services), it is highlighted in yellow to alert the subscriber. Also, new IPO (Initial Public Offering) symbols and prices are automatically received.

The Portfolio Window lets the subscriber track more than 3000 stocks. Personal filters can indicate high and low stock warnings on each issue, get previous data on each stock sold, and save the data for export to Excel or technical analysis programs such as MetaStock and Quicken. Stock changes are displayed in blue (up) or red (down) for easy visual tracking of the user's portfolio.

The News Window lets the subscriber view and print news from daily transmissions of the USA Today newspaper, as well as continuous updates from major wire services and company financial reports. News articles are displayed in their entirety, unlike the headline / synopsis common to many subscription services.

AWC has reached an agreement with Chaparral Communications in San Jose; Chaparral will market StockQuoter 2 through their 7,500 satellite dealers and distributors. The introductory subscription price for StockQuoter 2 is $24.95 per month, based on a one-year prepaid subscription. The subscription includes a PC decoder board with StockQuoter 2 application software and user's manual.

Page 19 had ads for RadioNet (www.radionet.com), Nolo Press (www.nolo.com), The Internet Crash Course (www.webdzine.com/index.shtml), Prestige PC Services, and Lincoln's Cabin BBS.

End of page 19. Go back or go to page 20 or to Mark's home page.