[Discuss] The America Invents Act

[mbr at arlsoft.com (MBR)]

On 9/28/2011 2:13 PM, Hsuan-Yeh Chang wrote:
> Thanks for challenging my point of view by attacking my profession.

Does this mean that Derek guessed right and you really are a lawyer, not 
a software engineer?  I'm not implying that you're not welcome here, but 
since most participants here are programmers, system administrators, or 
the like, that's who we assume we're talking to when someone posts.
> I am only trying to help the open source community to fight against the biggies.  If you believe that RMS in his lifetime can convince the Congress to abolish software patents, please do so.
This is the only point you've made that I agree with.
> This country protects independent inventors more than most other countries in the world.  If anyone has a good idea, regardless of whether the person is poor or rich, and regardless of whether the person is opening source code or not, the person is equally capable of seeking patent protection than anyone else.  If you choose to donate your invention to the public and give up your rights, that's again your freedom.  But if you exercise your freedom by giving up your legal rights, how can you ask the Congress to change the law simply because of your generosity?
This leads me to think that, whether your profession is law or software 
or something else, you don't know very much about the legal 
underpinnings of Open Source Software or Free Software, to use the 
preferred term (free as in "freedom", not as in "free beer").  FLOSS 
(Free/Libre/Open Source Software) software is protected by copyright 
law, not patent law.  It specifies a different license than most 
copyright notices.  But it is protected.  And that protection is under 
copyright law, not patent law.  So nobody's giving up their rights when 
they write Open Source Software (a.k.a. Free Software) unless they 
choose a badly written license.  When you include a copyright notice, 
you get to choose the conditions under which you will allow others to 
use what you've written.  Some poorly written FLOSS licenses allow 
others to seize control of your work and even claim it is theirs.  The 
GPL (see http://www.gnu.org/licenses/) on the other hand, protects 
against that and it also protects against many other forms of nefarious 
behavior.  Since the majority of FLOSS programmers use the GPL, they do 
not "give up their legal rights".  For any copyrighted work licensed 
under the GPL, the programmer sets the conditions under which you can 
use their work, and from a legal standpoint, your permission to continue 
using the work immediately disappears the instant you violate any of the 
conditions specified in the license.

Patent is a completely different set of laws than copyright, a point 
Stallman emphasizes in his talk at 
http://video.google.com/videoplay?docid=669200964006594520.  Copyright 
law provides perfectly adequate protection for software.  But ever since 
the court changed things and allowed software patents, life for software 
developers has been a nightmare!  And it was done as a court decision, 
not by Congress.  When I was writing software for DEC in the 1970s, 
DEC's lawyers explained to us that our code was protected through 
copyright and trade secret law because software was not patentable.  The 
law considered software to be an expression of a mathematical idea, and 
patent law does not allow patenting math.

Some friends of mine in the 1970s invented what is today one of the most 
commonly used pieces of software -- the electronic spreadsheet.  Read 
"Why didn't we patent the spreadsheet? Were we stupid?" at 
http://www.bricklin.com/patenting.htm for Dan's explanation as to why 
they didn't patent VisiCalc.

The U. S. Supreme Court's 1981 Diamond v. Diehr ruling changed 
everything.  But it never actually said software was patentable.  What 
it said was that the use of a mathematical formula, computer program, or 
digital computer as part of an invention doesn't automatically make an 
invention unpatentable.  But as a result of that decision, the Patent 
Office did a total 180.  Before that they would reject any invention 
that involved any software at all.  After that they would issue a 
patents on an invention that contained software and nothing else, even 
though what the Supreme Court's decision envisioned was an physical 
device that involved some software as part of the invention.
> Not all lawyers are necessarily bad lawyers.  President Lincoln was a lawyer and he ended slavery.  Dr. Martin Luther King Jr. was a lawyer and he ended segregation in the United States.
And Dwight D. Eisenhower was an internationally reknowned pastry chef?  
Yeah, right!  You do know that lawyers use the title "esq." or "esquire" 
after their name, not "Dr." before their name?  The Rev. Martin Luther 
King, Jr. was a Baptist Minister.  He had a Ph.D. in Theology.  He did 
not have a law degree!

Up until I read that, I assumed you were probably just a lawyer 
spreading FUD.  But given your inclination to hold forth as an expert on 
software licensing despite how little you know about it, your ignorance 
of MLK's profession makes it clear that you don't have a clue what 
you're talking about.

    Mark Rosenthal
    mbr at arlsoft.com <mailto:mbr at arlsoft.com>